The first thing to note is that this was an appeal of the decision in the Hinzmans' Humanitarian and Compassionate application, not an appeal of their refugee claim.
When the Immigration and Refugee Board turns down a claim for refugee status, the claimant is allowed at least two more steps. The IRB conducts a Pre-removal Risk Assessment (PRRA), to which the applicant can submit any new evidence, and the applicant can file a Humanitarian and Compassionate (H&C) application.
The PRRA is done in case, between the time of the IRB's decision and when the claimant leaves Canada, the situation has changed and the claimant is now at greater risk. To get a positive decision on a PRRA, the claimant has to show s/he would be persecuted in his country of origin. Only new evidence that was not included in the original refugee claim is relevant. Very few PRRAs are successful.
However, in an H&C application, the claimant needs to show that there would be undue hardship to him and his family if they are forced to return. This is a lower threshold - hardship versus persecution - and the success rate is much higher.
The Hinzmans received negative decisions in both their PRRA and H&C application, and that's when the removal order went into effect. Alyssa Manning, the Hinzmans' lawyer, asked for a stay of deportation, and asked for leave to appeal. The court granted both, and this was the appeal.
[Also note, I refer to Alyssa Manning by her first name because I know her, not out of disrespect or sexism.]
* * * *
Alyssa first summarized her main arguments, then unpacked them for the court in masterful fashion. Justice James Russell - who could be played by Liam Neeson in the movie - was attentive and engaged. As Alyssa referred to tabs and paragraphs in the various binders of documentary evidence, he would pick up his copy of the corresponding book, open to the page and read along. He asked questions that showed he was listening. I had a strong impression that he takes the gravity of his decision quite seriously.
Alyssa's main arguments, is brief, were:
[I feel like I missed one... not sure.]
Alyssa's primary argument was that the H&C officer applied the wrong standard when assessing the application. She proved that the officer applied the standards of the PRRA - a much higher threshold - rather than the correct H&C standards.
In these decisions, the IRB officer writing the decision must elaborate her or his reasons; they can't just say "no". Throughout this H&C decision, the officer said that there is state protection available to the Hinzmans, and they can access that protection. State protection and the ability to access state protection are central issues in refugee claims: can the claimant's country of origin protect them, or do they need Canada's protection?
However, state protection is not the issue in an H&C. In an H&C, the applicant must show that they will be subject to "unusual, undeserved or disproportionate hardship" if forced to leave Canada.
So over and over and over, in example after example, Alyssa showed how the wrong standard was applied: state protection versus unusual, undeserved or disproportionate hardship. She proved beyond any doubt that the "form of analysis was conducted through the lens of protection," as she said, rather than through the lens of hardship.
For this part, I have two quotes in my notes. One of the case precedents Alyssa cited involved Mexico, and she said parenthetically, "...also a democracy, I would note...". That made me smile, since we're always hearing how the US is a democracy, therefore the war resisters can be sent back to face punishment.
Alyssa also told the judge, "It doesn't take a magnifying glass" to see that the "risk analysis applied was more appropriate to a PRRA...". I think we all smiled there. It was indeed very blatant.
In one particularly baffling bit of the H&C decision, the officer noted that Jeremy could apply for conscientious objector status after he gets back to the US! Alyssa pointed out that this has absolutely no bearing on anything. Even if it were true, and he was allowed to apply for CO status, it wouldn't be retroactive! (In case you don't know, Jeremy did try to apply for CO status, but was thwarted by the military, as are most applicants.)
When Alyssa outlined the differential treatment received by war resisters who have spoken out publicly against the war, she had four main categories of evidence.
* * * *
The easiest and clearest parts of Alyssa's argument were how the H&C officer did not adequately assess the harm that would be done to Liam Hinzman, age 6, and to Nga Nguyen, Jeremy's spouse, if forced to return to the US. The best interests of the child is supposed to be a primary concern in these decisions, but the officer offered no analysis of that. This alone, Alyssa pointed out, means the decision is incomplete and inadequate.
The legal language of the H&C says the officer must be "alert, alive and sensitive to" the needs of children in these cases. If the Hinzmans are deported, Liam will be separated from his father, separated from his friends and attachments in the place he has called home for most of his life, and likely subjected to bullying from peers (and possbily adults) in the US.
And what does the IRB officer say to this? There is state protection available to Liam! As an aside, Alyssa pointed out that she is not aware of state protection against bullying, but more to the point, state protection is (again) the wrong standard, the standard of the PRRA, not the H&C.
The officer's suggestion that, if Liam is bullied, the Hinzmans can move him to a different school (more disruption) is hardly in the best interests of a child. In one elegant proof that the officer was not "alert, alive and sensitive to" the needs of the child, Alyssa quoted from the decision: the officer said Liam can keep in touch with people by phone and email. Hello? Liam is six years old.
Regarding Nga, "the female applicant," the officer said that she will have a choice whether or not to stay at home or go back into the workforce if Jeremy is incarcerated. That simply makes no sense, as Nga will be the sole caregiver to a nursing infant and a young child. Nga's circumstances were completely ignored, which alone, said Alyssa, makes the decision unreasonable.
* * * *
The best part was Alyssa's final argument, that the decision as a whole was unreasonable. For this, she unpacked name after name and story after story of soldiers who were given "differential treatment" - punished more harshly for speaking out publicly against the Iraq War: Kevin Benderman, Stephen Funk, Camillo Mejia, Ehren Watada, Augustin Aguayo, and testimony from Amnesty International, the director of Quaker House near Fort Bragg and more from Eric Seitz.
Kevin Benderman didn't even go AWOL - he only spoke against the war, while remaining active and following orders - and he was put in jail!
Austin Aguayo was gone from base only 24 days. A soldier isn't even officially AWOL until 30 days have passed. But during those 24 days, Aguayo spoke out loudly and publicly against the Iraq War, and they threw the book at him.
The director of Quaker House testified in his statement that "given the international notoriety that Jeremy's case has attracted it's hard to imagine that he won't be made an example of."
The H&C decision dismissed this evidence.
Amnesty International Canada has said that if Jeremy is returned to the US and incarcerated, the organization will consider him a prisoner of conscience.
The H&C decision dismissed this evidence.
Finally, Alyssa showed how the H&C decision failed to address why the Hinzmans came to Canada in the first place, as if that is irrelevant to why they cannot return.
* * * *
Then the Crown got up. And it was very quiet.
(For USians and others, "the Crown" is the equivalent of "the State" in the US - the prosecution.)
Lawyer Stephen Gold said the decision speaks for itself. He said the officer applied the correct standard, and was sensitive to the best interests of the child.
He offered no evidence of this. He didn't prove it. He just said it was done.
Gold said the argument that family separation is a hardship is "perverse," because the incarceration would be caused by the applicant's own actions. (In other words, if Jeremy hadn't broken a law, he wouldn't be put in jail, so it's his own fault.) Gold said "we live in strange times indeed" where testimony from Amnesty International could be considered relevant. (The assessments of groups like Amnesty and Human Rights Watch are regularly used by the IRB when determining the safety of a given country.)
In his pitiful attempt to prove that the H&C officer had done her job correctly, the Crown attorney actually referenced the US's even more pitiful "No Child Left Behind Law"! This supposedly shows that if Liam is bullied at one school, his mother can have him transferred to another. Very nice. A six-year-old boy will be removed from the only home he can remember, his father will be in prison for refusing to kill innocent people, and if he's harassed at school, his life can be disrupted further by being moved yet again to a new school, where the likelihood of being bullied again will be reduced by exactly nothing.
At one point the Judge asked the Crown to show how the H&C officer addressed Liam and Nga's potential hardship.
You could hear crickets chirping in the background.
Another campaigner later told me she imagined tumbleweeds rolling by.
The silence went on for so long, that the Judge stepped in to suggest a possible word.
I covered my mouth to make sure a guffaw didn't slip out.
* * * *
I hope that gives you a feel for the proceedings. Let's all note the very narrow legal grounds that Alyssa was able to argue. I hope with all my heart that the Hinzmans' appeal is successful and that they can file a new H&C application. But this is no way to fight this battle. We cannot continue to argue these cases one at a time, in painstaking, piecemeal fashion.
We need a political solution.
If you believe Canada should let US war resisters stay, make sure your MP knows. Make sure Stephen Harper, Michael Ignatieff, Jack Layton, Gilles Duceppe and Elizabeth May know. Tell your neighbours. Talk to your co-workers. Be part of the movement to make this right.
This is not just about Jeremy and Nga and Liam and Meghan, love them though we do. This is about what kind of Canada we want to live in.