Can I withdraw PR application when PR obligation appeal hearing is pending

[pereirafb]

I am having PR status for the past 12 years. My second time renewal was due in May 2013 which I applied in January 2013. For the past 5 years I had not met residency requirement of 730 days and was short by around 195 days as I had taken an assignment overseas for my own business in Canada. In March 2013 I received a letter from CIC saying that I have not met the residency obligation and thus my file will be forwarded to CIC office in Ottawa. Followed by this I received a letter from Ottawa office asking me to send additional documents such as my business license copy, financial statements of my business, bank statements, tax returns, property ownership papers, utility bills etc, copies of all pages of my passport etc for the past 5 years. I sent all above to Ottawa office in April 2013 but did not receive any further notification from Ottawa. In August 2013, I had to travel out of Canada due to the business commitment and wanted to return back to Canada in November. As my PR card expired in May, I applied for a PR travel document from the local Canadian embassy. I was called for an interview and the officer denied to issue me a PR travel document as I did not meet the 730 days physical presence in Canada for the past 5 years. But he did grant me a single entry visa on which I had travel to Canada within 60 days from the date issue and I was asked to appeal against his decision with Immigration Appeal Division (IAD). I have entered Canada recently and sent my appeal to IAD. On line status of my PR still shows as “In Progress”. My wife and children are all Canadian citizens.
Now I have few questions:
1. What will happen now?
2. Will I be granted the renewed PR card?
3. During appeal, can I plead that I will withdraw my PR application and stay the missing days and reapply my PR?
4. If my PR taken away from me, will I have to leave the country and how many days will be given to me to leave the country?
I appreciate to have my questions answered by anyone who knows about these issues.

 

[scylla]

1) You'll have to wait for the IAD process to run its course.
2) Depends what the IAD decides. What works against you is that the days you spent working for your own business overseas cannot be counted towards your PR residency requirements - so you definitely didn't meet the residency requirement.
3) Sure - you can withdraw the application. However if you do that, you'll no longer be a PR and you'll be asked to leave Canada. Your wife will have to sponsor you if you want your PR status back.
4) Yes. I think you're usually given 30 days? (Hopefully someone can verify.)

 

[Msafiri]

1. IAD will list appeal for hearing at the nearest center serving your city. This could take anywhere between 12-18 months. Any side that loses the appeal can appeal to the Federal Court (FC) to submit an application for judicial review. If FC agrees to the JR application then another 12-18 months to list. If FC denies then that's the end of the legal process. If FC hears appeal it may side with you or with CIC. Again FC decision is final. Outcome is you either keep PR or lose it. If you lose it you will be issued a departure order to leave Canada within 30 days. If you don't it becomes a deportation order - you don't want this to happen.

2. Sure you are a PR until legal proceedings are completed. You will be issued a 1 year validity card.

3. No you can't. Its like being busted for speeding going to court and then telling the judge sorry your honor I wish to drop my appeal and pay a fine. Withdrawal of the appeal means you accept the TD refusal. Again you will be issued a departure order. The point of withdrawal was when CIC asked for more information for your PR Card renewal that you made knowing full well you were in breach of the RO. Applying for a TD was self inflicted wound.

4. Yes 30 days but you can make submissions to get a reasonable addition of time say 30 days with proof of travel arrangements to include air tickets. Lets face it though most PRs have plenty of time during the appeal listing to arrange their affairs so don't expect much more extra time from CIC.

You are better of withdrawing the appeal, relinquishing your PR and getting sponsored again. This will give you a new 3 year cycle for absences from Canada since you don't really reside in Canada but rather use the PR Card as a form of glorified visitors visa.

 

[pereirafb]

Thank you very much both Scylla and Msafiri.
Msafiri,
In case I will be given a PR card for 1 year, how does it work? At the end of one year, do I have to reapply for its renewal and see that make up the missing days? Can I travel out of Canada in between in case of emergency or business requirements?

Thanks once again for your time.

 

[Msafiri]

You re-apply for a PR card each year until appeal is decided but the way CIC will deal with this is that they will delay the issuance of your PR Card until there is evidence on file of an appeal. You should send proof of appeal being received by IAD (who will send you a letter) to the Local CIC office. I don't think you will get more than 1 PR Card in the appeal process as CIC will simply delay issuance and/or coordinate with IAD to get initial directions for a pre-hearing including I would expect a pause on PR Card proceesing.

You can travel with the one year validity PR Card if and when you get it but this isn't going to do your appeal any favors where you continue to travel further adding to your RO breach. Your day count stopped the day your TD got rejected so any days in Canada don't count towards the RO any more unless you win the appeal which seems unlikely as you really have no justifiable reason for your absences. However staying in Canada post TD refusal is a factor considered by the IAD as a positive in a matrix of other factors established by case law.

If you decide to travel again despite not being issued a PR Card its debatable whether you can then apply for a TD knowing you will get refused and then get a TD yet again...it can be argued that you already had a TD issued to attend the appeal which you disregarded...it would be a question open to certification before the IAD/ FC as to how many TDs to attend an appeal a PR can get. Expect to be caught up in some legal limbo outside Canada.

I think you need to critically review your situation and see how serious this is. That you are even contemplating further travel at this juncture for the same business that has caused you to breach the RO is surreal. Its like you've been caught speeding are going through the appeal and now want to speed again??

 

[Leon]

Agreed. If you want to have a chance at the appeal, you need to stop travelling and show that you are well settled in Canada and that it would be in the best interest of your children that they don't revoke your PR and send you packing.

Your other option would be to cancel the appeal and voluntarily renounce your PR and have your wife sponsor you again but this will take some time and during that time, you will not be a PR and there is no guarantee that they will grant you a multiple entry visa to visit your family while you wait for your sponsorship.

 

[lmorley]

Hello:

I am just starting to go through this process of IAD appeal myself.. I did not make the residency obligations since I had to work in the US. My full family and children lives in Canada and I have been back and forth pretty much every month.. I appealed the removal order.

Having gotten the notice, I am taking the risk to accept a transfer to work from Canada in a few weeks. Kind of risky at this point. My general feeling is that I support my family in Canada and now that I will be there most of the time it could cause hardship if I am kicked out.. Do I have a case on compassionate grounds? I am hoping at least to get a stay of the order to prove my intentions.

 

[Msafiri]

... Do I have a case on compassionate grounds?...

No. Why can't you work in Canada? Why did you 'have' to work in the US? Surely it was open to you to say no to the US offer?

 

[lmorley]

At the time in 2009 there were very limited jobs in Ottawa at the time and I had an option in the US plus Nortel gave us no Severance to survive at least.. Obvious once you are away from a market its more difficult to get a new job there as well, so it became a catch-22 situation.

I have gotten a few stops before time requirement but they did allow me to continue without action. For some reason the very time I actually got a good interview that looks positive was the time decided to issue the removal order for not meeting the time requirement. Just bad timing. worst, I got the job offer and decided to accept it in Canada. My current employer is countering by allowing me to work from Canada. I want to stay with current employer in case my appeal gets denied. In any case, I will be mostly in Canada as of now..

My question is this. How much does having dependent children and wife in Canada help the case?

 

[Msafiri]

At the time in 2009 there were very limited jobs in Ottawa at the time and I had an option in the US plus Nortel gave us no Severance to survive at least.. Obvious once you are away from a market its more difficult to get a new job there as well, so it became a catch-22 situation.

I have gotten a few stops before time requirement but they did allow me to continue without action. For some reason the very time I actually got a good interview that looks positive was the time decided to issue the removal order for not meeting the time requirement. Just bad timing. worst, I got the job offer and decided to accept it in Canada. My current employer is countering by allowing me to work from Canada. I want to stay with current employer in case my appeal gets denied. In any case, I will be mostly in Canada as of now..

My question is this. How much does having dependent children and wife in Canada help the case?

So lets look at this from the courts view:

1. You have a PR that is aware of the RO.

2. For a lifestyle reason the RO decides to go to the US - however way you look at it there are jobs in Canada even if it means relocating...just because its not ideal doesn't cut it...lots of PRs have jobs...they may not be in their dream job but it sure helps their RO!

3. The PR has been warned several times to watch their time but hasn't cared to heed the multiple warnings - so they don't care about Canadian laws or see their actions will cause them any issue? In effect the PR is treating their PR status as a glorified visitors visa and flipping the bird to the system.

4. The PR now promises to have intended to make Canada his home due to an 'ideal' job offer that just happened to be when he has been reported - isn't that conveniently lucky wouldn't you say?

5. The RO obligation is a weak 40% and yet even this coupled with 3 above doesn't sweat the PR. In most weak obligation situations the downside is little to no sympathy for breaching (to overcome the almost unbelievable generosity Canada gives PRs on the RO - try this in the US and see your GC bounced faster than the Bolt does the 100 m!)

6. The PR now wants some clemency based on his family in Canada (do they meet the RO) despite the fact that the RO is personal to each PR (subject to limited exceptions such as a minor child accompanying a PR in an exempted category e.g. employment with the Feds). Case law shows that your 'sins' are not 'forgiven' by depositing your family in Canada...its a consideration but in what way will they suffer from your absence? They can visit you abroad or even live with you. Why can't your spouse work...lots of other PRs in her shoes work? Why treat family as some sort of insurance?

7. In fact separation in 6 is self inflicted - why have sympathy on you when you knew the consequences of your actions?

The courts long gave up having sympathy for life style reasons - any excuse/ representation for it has been beaten down by successive case law. Even a rookie CIC lawyer should have this wrapped in a one day hearing...but you never know they may feel sorry for your story. If your spouse meets the RO go with re-sponsorship...it will be faster and has almost 100% guaranteed success if your background checks are clean...with the courts it doesn't even begin to look good!

Just my 2 cents!

 

[lmorley]

The US is not like that with Green Card. They view obligations in terms of how much time out per trip of say 6 months to a year. In fact even if you are in violation and you decide to stay, they will not revoke the green card. I find the removal order law strange when considering the overall situation. Its not like you leave for four years and then come back to stay..

My family is fully compliant in terms of status and my wife stays home as one of my kids have some special needs.

In the end of the day, I have appealed it and I do believe there is a chance to at least get a stay of the order. In terms of the new job, the interview process started and offer given before the removal order was issued and I informed the officer but he did not seem to care. Bear in mind the officer who did the report was very rude as he could just speak about not meeting the time requirements and not try to be abusive..

If I lose the appeal then my family will have to leave with me this time, no interest to fight the process after that. The US can use my skills which is very good..

 

[scylla]

The US is not like that with Green Card. They view obligations in terms of how much time out per trip of say 6 months to a year. In fact even if you are in violation and you decide to stay, they will not revoke the green card.

Your understanding of the green card rules is incomplete/incorrect.

The US expects you to make the US your primary home to keep you green card. Returning to the US ever few months, staying for a couple of weeks and leaving again will not allow someone to keep their green card (unless they have filed a returning resident permit) - and will eventually lead to the green card being revoked. If you visit US immigration forums you'll find plenty of people with valid green cards who have had them revoked on entry to the US due to not treating the US as their primary residence. What's more, Canada provides the additional flexibility of counting time outside of Canada as time inside of Canada provided it was spent with a Canadian citizen spouse. The US has no such rule. Time outside of US is time outside of US.

I have a number of friends who have been both US green card and Canadian PR card holders. All agree that Canada's rules are by far the more flexible and lax when it comes to retaining status.

 

[lmorley]

Your understanding of the green card rules is incomplete/incorrect.

The US expects you to make the US your primary home to keep you green card. Returning to the US ever few months, staying for a couple of weeks and leaving again will not allow someone to keep their green card (unless they have filed a returning resident permit) - and will eventually lead to the green card being revoked. If you visit US immigration forums you'll find plenty of people with valid green cards who have had them revoked on entry to the US due to not treating the US as their primary residence. What's more, Canada provides the additional flexibility of counting time outside of Canada as time inside of Canada provided it was spent with a Canadian citizen spouse. The US has no such rule. Time outside of US is time outside of US.

I have a number of friends who have been both US green card and Canadian PR card holders. All agree that Canada's rules are by far the more flexible and lax when it comes to retaining status.

All of these laws are governed by intent of the person. Yes, the officer can throw the book at you but in the end the Judge is the one charged with making the decision based on objective facts. The concept of Intent and compassionate grounds gives the judge more options than an officer would take. The sad thing is that your situation could be hanging on which officer you meet at the border and how they feel about you at that point in time.

 

[Alurra71]

All of these laws are governed by intent of the person. Yes, the officer can throw the book at you but in the end the Judge is the one charged with making the decision based on objective facts. The concept of Intent and compassionate grounds gives the judge more options than an officer would take. The sad thing is that your situation could be hanging on which officer you meet at the border and how they feel about you at that point in time.

I guess the question would be is how much compassion should you be shown based on your own admission that you continually knew you were not meeting the RO and even had been 'warned' several times at the border but still continued to do what you were doing. The last time was not a warning but instead they followed through with the previous warnings about what could happen and now you are talking of compassion. I think they showed you a LOT of compassion by warning you several times before any actions were taken against you. I think the judge will also note this information as well so it might not turn out as well as you hope.

Best of luck to you though.

 

[lmorley]

I guess the question would be is how much compassion should you be shown based on your own admission that you continually knew you were not meeting the RO and even had been 'warned' several times at the border but still continued to do what you were doing. The last time was not a warning but instead they followed through with the previous warnings about what could happen and now you are talking of compassion. I think they showed you a LOT of compassion by warning you several times before any actions were taken against you. I think the judge will also note this information as well so it might not turn out as well as you hope.

Best of luck to you though.

Just to clarify, I lived in Canada for five years straight without much traveling outside. My Wife and Kids are in Canada and its my home there. The only reason for being out was work and if you know 2009 and Nortel situation, it was hard not to take a job where ever. I was taking steps based on the warnings given and as I said earlier, I had an interview scheduled during the trip that started this whole process. So Ironically, I got the offer and then this happened. Just bad timing.