If you’re a foreign national or permanent resident (non-citizen) of Canada, a criminal conviction can jeopardize your ability to stay in the country. When non-citizens are charged with criminal acts, the police alert the Canadian agency that oversees immigration. If the charge leads to conviction, the Canada Border Services Agency can interview you and then decide whether to arrange a hearing before the Immigration Division of the Immigration and Refugee Board. At the hearing, certain types of convictions will automatically lead to the issuance of a deportation order. In fact, even criminal acts committed outside Canada can lead to deportation from Canada.
A Broad Definition of Serious Crimes
Both foreign nationals and permanent residents face deportation upon being convicted of a “serious crime.” To qualify as serious, the crime must meet the following criteria:
- the crime in question carries a maximum prison sentence of 10 years; or
- the individual receives a minimum six-month prison sentence.
Immigrants who receive a shorter sentence, or no sentence at all, aren’t necessarily safe from deportation. As long as the crime carries a maximum prison term of at least 10 years, it meets the definition of serious crime.
Exceptions for At-Risk Refugees
Foreign nationals and permanent residents with refugee status will not be automatically deported. Under Canada law, refugees can’t be deported if they would face torture, persecution, or cruel treatment in their home country unless they are found to be a “danger to the public” in a separate process.
Appealing a Deportation Order
If you’re facing deportation (i.e. a deportation order has been issued against you), you may be able to appeal the order depending on your immigrant status. Permanent residents can’t file an appeal if their conviction lead to a six-month prison sentence or longer. Foreign nationals without permanent residence in Canada may not be able to appeal a deportation order regardless of the time spent in prison. If you’re allowed to file an appeal, an experienced immigration lawyer can help you present your case in the best light possible to the Immigration Appeal Division (“IAD”).
At the hearing, the Immigration Appeal Division considers a long list of factors to help it determine whether the deportation should stand or whether it should be ‘stayed’:
- the seriousness of the crime;
- the impact on the victim;
- how much time has passed since the crime was committed;
- whether the immigrant has a family history of criminal activity;
- whether the immigrant is remorseful for the harm caused by the crime;
- whether the immigrant is enrolled in a counselling program;
- how long the individual has lived in Canada;
- how difficult it would be for the person to leave Canada;
- the person’s level of attachment to his home country.
The IAD grants a “stay of removal” of 1-5 years to parties who are successful. The IAD may also quash the deportation order if it was made based on a legal error. This stay of removal can be revoked if the individual commits a crime or fails to comply with the applicable conditions in the IAD’s order.
If you have or are facing a potential criminal conviction and are concerned about the immigration consequences, you should consult with an experienced immigration lawyer to determine your status and to explore your options.