Canadian citizen with Russian LGBT fiance in USA - Refugee claim possible?

[ConfusedOntarian]

Hello there!

I am a Canadian citizen. I have a fiance who is in the USA, on a student visa for the past 7 years. My fiance is legally male, but is a transgender woman who has not yet begun to transition to female. I myself am legally male. We are not yet married, but we are planning to get married this month. Their student visa in the USA expires in approximately a month too, and they have not been able to find work in their field or anything of the sort that will let them stay in the USA.

They are a Russian citizen, and are terrified of going back to their home country of Russia due to the bad climate there for gay/transgender people. We are planning to, soon after we get married (not the same day, but likely within a couple weeks), cross together from the USA into Canada at a land border, and seek asylum on the grounds of LGBT, with the exception to the "safe third country agreement" being that I am their family member (spouse) as a Canadian citizen living in Canada.

The National Documentation Package for Russia provided by the Canadian government cites sources that state that the climate for LGBT in Russia is dangerous and even potentially life-threatening. We are able to get documentation from my fiance's therapist stating that they are transgender, and we are also able to get an affidavit from their current roommate who they are good friends with and also know that they are transgender (being transgender themselves.)

We intend to seek legal counsel on this matter, but wanted to get an opinion from a community like this as well, hopefully from others with similar experiences.

Do you think that my fiance will be allowed into Canada to seek asylum and have their claim referred to the IRB for a hearing? And do you think that the claim is likely to be accepted at the hearing?

Please let me know your thoughts. Thank you!

 

[canuck_in_uk]

Hello there!

I am a Canadian citizen. I have a fiance who is in the USA, on a student visa for the past 7 years. My fiance is legally male, but is a transgender woman who has not yet begun to transition to female. I myself am legally male. We are not yet married, but we are planning to get married this month. Their student visa in the USA expires in approximately a month too, and they have not been able to find work in their field or anything of the sort that will let them stay in the USA.

They are a Russian citizen, and are terrified of going back to their home country of Russia due to the bad climate there for gay/transgender people. We are planning to, soon after we get married (not the same day, but likely within a couple weeks), cross together from the USA into Canada at a land border, and seek asylum on the grounds of LGBT, with the exception to the "safe third country agreement" being that I am their family member (spouse) as a Canadian citizen living in Canada.

The National Documentation Package for Russia provided by the Canadian government cites sources that state that the climate for LGBT in Russia is dangerous and even potentially life-threatening. We are able to get documentation from my fiance's therapist stating that they are transgender, and we are also able to get an affidavit from their current roommate who they are good friends with and also know that they are transgender (being transgender themselves.)

We intend to seek legal counsel on this matter, but wanted to get an opinion from a community like this as well, hopefully from others with similar experiences.

Do you think that my fiance will be allowed into Canada to seek asylum and have their claim referred to the IRB for a hearing? And do you think that the claim is likely to be accepted at the hearing?

Please let me know your thoughts. Thank you!

Why are you choosing the most difficult path with a definite possibility of refusal instead of just marrying and applying for spousal sponsorship?

 

[21Goose]

If you are getting married, you should simply sponsor your spouse. Asylum is not the best solution since it's not guaranteed - whereas a spousal sponsorship is a simple and easy process and is usually guaranteed (unless she is inadmissible on the basis of criminality etc). Asylum can be a complex and difficult process and should really only be used if there is no other choice.

You can sponsor her, so you have a very good alternative.

If you are able to get a TRV for her, simply enter Canada together (or separately, it doesn't matter) and do an inland sponsorship.

If she can't get a TRV, and she cannot go back to Russia, she should look at going somewhere else where she can get a visa/visa free entry for a few months while you complete the sponsorship process.

 

[ConfusedOntarian]

Why are you choosing the most difficult path with a definite possibility of refusal instead of just marrying and applying for spousal sponsorship?

If you are getting married, you should simply sponsor your spouse. Asylum is not the best solution since it's not guaranteed - whereas a spousal sponsorship is a simple and easy process and is usually guaranteed (unless she is inadmissible on the basis of criminality etc). Asylum can be a complex and difficult process and should really only be used if there is no other choice.

You can sponsor her, so you have a very good alternative.

If you are able to get a TRV for her, simply enter Canada together (or separately, it doesn't matter) and do an inland sponsorship.

If she can't get a TRV, and she cannot go back to Russia, she should look at going somewhere else where she can get a visa/visa free entry for a few months while you complete the sponsorship process.

This thread is asking about if asylum seeking is possible or likely, not asking for alternatives to it.

She fears for her life going back to Russia. She has to go back to Russia within the next month or two, definitely not long enough for a spousal sponsorship to go through.

For various reasons, such as me being unemployed, it is also unlikely that a spousal sponsorship would be very solid at all.

She is highly unlikely to get a TRV in Canada due to lack of ties to anywhere (such as US or Russia) according to a lawyer, and does not have the money to be living somewhere else other than Canada (with me) or Russia (with a friend) for up to a year or more while waiting for the sponsorship to be processed...

So once again I ask... Is the asylum route likely to succeed for someone in this situation? It seems downright SIMPLE compared to a spousal sponsorship, after reading the Government of Canada guides for both.

 

[zardoz]

This thread is asking about if asylum seeking is possible or likely, not asking for alternatives to it.

She fears for her life going back to Russia. She has to go back to Russia within the next month or two, definitely not long enough for a spousal sponsorship to go through.

For various reasons, such as me being unemployed, it is also unlikely that a spousal sponsorship would be very solid at all.

She is highly unlikely to get a TRV in Canada due to lack of ties to anywhere (such as US or Russia) according to a lawyer, and does not have the money to be living somewhere else other than Canada (with me) or Russia (with a friend) for up to a year or more while waiting for the sponsorship to be processed...

So once again I ask... Is the asylum route likely to succeed for someone in this situation? It seems downright SIMPLE compared to a spousal sponsorship, after reading the Government of Canada guides for both.

Unless she has proof that she personally has been targeted and it's not just a general threat, the odds don't look wonderful.

 

[scylla]

I agree with what others have said. Right now this sounds like a very weak refugee claim. Get married and then sponsor them for PR through spousal sponsorship - that's the best option.

 

[jddd]

The fact that she has been living in the US for 7 years logically means there is no immediate and provable threat to her personally. How can she prove being persecuted in Russia if she has not been living there? Plus a Canadian spouse? It pretty much guarantees a refusal.

 

[ConfusedOntarian]

Unless she has proof that she personally has been targeted and it's not just a general threat, the odds don't look wonderful.

She has, but does not have any proof. Her family there have threatened violence to her if she returns there, among other things.

The fact that she has been living in the US for 7 years logically means there is no immediate and provable threat to her personally. How can she prove being persecuted in Russia if she has not been living there? Plus a Canadian spouse? It pretty much guarantees a refusal.

Because the climate in Russia against LGBT people is pretty bad right now? I thought that was the point of refugee claims of this nature - for those who are outside of their home country and fear returning there.

I would have thought having a Canadian spouse would be a good thing... It adds an aspect of family reunification.

 

[ConfusedOntarian]

I agree with what others have said. Right now this sounds like a very weak refugee claim. Get married and then sponsor them for PR through spousal sponsorship - that's the best option.

Not a very good option if they get stabbed in Russia while waiting.

 

[21Goose]

Not a very good option if they get stabbed in Russia while waiting.

I recommend you consult with a lawyer since you seem determined to ignore everyone on this forum because we aren't telling you exactly what you want to hear.

 

[ConfusedOntarian]

I recommend you consult with a lawyer since you seem determined to ignore everyone on this forum because we aren't telling you exactly what you want to hear.

It just seems to me like everything that people are saying here is in opposition to the official documentation provided by the Government of Canada. I am in the process of consulting with a lawyer, but as it is the weekend, this will not happen until next week.

I will update this thread with the lawyer's response, for the benefit of others who may find this thread through Internet searches.

 

[21Goose]

It just seems to me like everything that people are saying here is in opposition to the official documentation provided by the Government of Canada. I am in the process of consulting with a lawyer, but as it is the weekend, this will not happen until next week.

I will update this thread with the lawyer's response, for the benefit of others who may find this thread through Internet searches.

Yes, please update the thread when you hear back from the lawyer.

 

[jddd]

She has, but does not have any proof. Her family there have threatened violence to her if she returns there, among other things.



Because the climate in Russia against LGBT people is pretty bad right now? I thought that was the point of refugee claims of this nature - for those who are outside of their home country and fear returning there.

I would have thought having a Canadian spouse would be a good thing... It adds an aspect of family reunification.

You said it yourself. She does not have any proof. The “climate” does not help her case. Good idea about the lawyer.

 

[Bornlucky]

Do you think that my fiance will be allowed into Canada to seek asylum and have their claim referred to the IRB for a hearing? And do you think that the claim is likely to be accepted at the hearing?

Hi there,

If you're married then it looks as though, to answer your question, that she would be allowed to make a claim at the Port of Entry and be allowed to come into Canada as an exception to the Safe Third Country Agreement https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement.html#toc1

Being her spouse looks to overcome the agreement but your lawyer is obviously your go to advisor for this sort of information.

As for the refugee claim, these are discretionary decisions so making predictions on outcomes is like making a bet at the race track - someone will be correct.

She will likely receive a conditional removal order, have her identity documents seized and likely feel the sensation of being a criminal as uniformed CBSA Officers do their paperwork and ask her questions. The atmosphere of the reception can be abrasive. You want to be consistent with your narrative from your first contact through to whatever outcome may occur - emphasis, evidence and fears will be revisited over time by officials who review cases looking for inconsistencies. Arrive prepared but don't react to the negatives and just cooperate fully and with great patience. Dignity, in my experience, earns respect and getting agitated leaves you sitting uncomfortably for hours and hours.

Refugee decision-making is "future looking" and you can read how the IRB is supposed to determine cases here https://irb-cisr.gc.ca/en/legal-policy/legal-concepts/Pages/RefDef05.aspx

It is important to understand what sort of refugee you are and she would be claiming to be a part of a "particular social group" I think,

"Particular social groups are made up of persons of similar background, social status or practices. They can be groups defined by an unchangeable characteristic such as gender, sexual orientation, family or caste. They can also be groups whose members voluntarily associate for reasons so fundamental to their dignity that they should not be forced to forsake the association, such as human rights organizations or trade unions. Or they can be groups associated by a former voluntary status, unalterable due to the passage of time."

Read up, speak to counsel just as you plan to - engage an experienced Immigration lawyer - be prepared for a long and stressful process with real consequences and either salvation or ruin swinging on the hinge of human decision-making. Ask your counsel about all of the roads for her to receive permanent resident status should the claim fail simply to reduce the stress of thinking that there is but one road.

Internal Flight Alternatives, discrimination versus persecution or other technical, legal principles of refugee determination can upset the applecart of a claimant - you just never know what the IRB will come up with.

This site alone offers real perspectives from failed claimants who remain in Canada, under a removal order, who continue to pursue relief through marriage or other policy mechanisms such as Humanitarian and Compassionate grounds applications. Take heart and stay positive.

And so good luck, the persecution of anyone is repugnant.

 

[ConfusedOntarian]

Yes, please update the thread when you hear back from the lawyer.

Heard back from our go-to immigration lawyer recently who said that things sounded alright, and referred us to a specialty lawyer who handles refugee claims especially - said second lawyer also reviewed our case and stated that it looks promising and does not advise against pursuing it. We are retaining him, and plan to start the process in approximately 2 weeks.

Hopefully this information will give some hope to others in similar situations - I will keep this thread up to date as things progress.