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The Applicant, a citizen of Honduras, is illiterate due to growing up impoverished and without an education.
The Applicant entered the United States in 2006 as an unaccompanied minor and purchased drugs from a Mexican man, whom he referred to as a member of the Mexican Mafia. He tried to sell the drugs and was threatened with violence by a member of the Mara Salvatrucha 13 gang (“MS-13”) for using the MS-13’s territory without paying. He was deported to Honduras the next year.
The Applicant re-entered the U.S. in 2008, still an unaccompanied minor, and engaged in the same activities as before, resulting in his deportation to Honduras after 2 to 3 months.
In 2017, he arrived in Canada and submitted a refugee claim. In 2019, he applied for permanent residence (“PR”) under the Family Class.
In October 2022, the Applicant was sent a procedural fairness letter (“PFL”) regarding his potential criminal inadmissibility under s. 37(1)(a) of the IRPA for being involved with the MS-13 and the Mexican Mafia to sell narcotics when he lived in the U.S.
The Applicant responded to the PFL, explaining that he never claimed to be a member of the Mexican Mafia or the MS-13, that he was not aware of any actual links between his dealer and the Mexican Mafia, that he never had an intention or a desire to be part of the MS-13 or any other gang, and that he only sold drugs because he was in a desperate situation.
In March 2023, the Applicant was found inadmissible on the basis of organized criminality and his PR application was refused.
The Applicant argued that the Officer disregarded his response to the PFL and that the Officer’s decision was not responsive to his submissions. The Respondent argued that the Applicant’s response to the PFL did not displace the essential facts on which the inadmissibility finding was made, namely that the Applicant conceded that he paid the MS-13 for permission to sell drugs on their territory in the U.S.
Justice Ahmed sided with the Applicant, finding that the Officer misapprehended the Applicant’s submissions about the MS-13, writing at para 20: The Officer’s statement that the Applicant “request[ed] permission to sell” drugs on MS-13 territory does not accord with the Applicant’s evidence, which is that he only paid the MS-13 after being threatened with violence by a gang member. The Officer relies on a circular argument, equating the mere commission of illegal acts with the capacity to appreciate the acts’ criminal nature. The Officer also does not show adequate regard for the Applicant being an unaccompanied minor fleeing extreme poverty at the time of the two incidents.
Furthermore, Justice Ahmed found the Officer’s treatment of the Applicant’s submissions about the Mexican Mafia to be erroneous, writing at para 21: The Officer acknowledged the Applicant’s statement that he did not know if his dealer in the United States was actually a member of the Mexican Mafia or “affiliated in any way to cartels or organized crime.” Without further explanation, the Officer then determined that the Applicant “purchase[d] cocaine from the Mexican Mafia,” “sold drugs…for six months with a relationship with the Mexican Mafia,” and “specifically indicat[ed] he purchased drugs from an individual who he believed was part of the Mexican Mafia.” The Applicant rightly notes that the Officer’s analysis is “squarely…contradict[ed]” by the evidence and fails to identify “compelling and credible information” warranting a criminal inadmissibility finding under paragraph 37(1)(a) of the IRPA.
Justice Ahmed concluded at para 23: Administrative decision-makers are required to “demonstrate that they have actually listened to the parties” (Vavilov at para 127 [emphasis in original]). It is troubling that the Officer failed to discharge this basic duty given the evidence on the record, which demonstrates that an inadmissibility finding would “ha[ve] particularly harsh consequences for” the Applicant in this case (Vavilov at para 133).
See: Aguilar Ramos v. Canada (Citizenship and Immigration), 2024 FC 2003, <https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/527076/index.do>.
If you need legal advice regarding potential inadmissibility, please contact Heron Law Offices to book a consultation with one of our experienced immigration lawyers.
