Sponsorship with criminal inadmissibility

I've had to become familiar with the TRP process due to my own peculiar situation (legally in Canada on a work permit, filed for PR in the Federal Skilled Worker category, issue in medical and a determination that even though I don't need treatment now, the potential cost of future treatment exceeded the threshold - about $61,000 over 10 years as of 1 December - and no amount of private insurance or opting out of BC medical - which is a legal option in BC although not most other provinces was enough, so I was denied.  I'm now married to a Canadian citizen, in fact, and the visa office knew that, but you can't "switch categories".)  With a finding of medical inadmissibility I have to worry each time I cross the border that I might be turned away.  So I carry around all the paperwork for a POE TRP application now, including everything that's been filed on my original case (currently on appeal,) along with the new (spousal sponsored) application.

The odds of obtaining a TRP for medical inadmissibility is vanishingly small - in 2010 they issued 175.  In the world.  What it takes to be successful is a compelling case.  Spousal cases are the one category specifically called out in OP 20 and I've read elsewhere that "senior border officers are trained to permit TRPs in spousal cases in many circumstances."  The fact you have options actually counts against your H&C application (you do have the option of going to the US together, for example.)

At this point, you should have a decision on the TRP soon.  Did you ever order a copy of your CAIPS/GSSM notes?  If not, I'd suggest doing it (although you won't get them before the TRP decision at this point, it takes 5-6 weeks to get them.)  Since you are not in Canada, you need to have someone IN CANADA request them.  There are firms that will do so for a modest fee ($30 or so) and then forward them to you via e-mail.  Those notes will give you greater insight into the decision making process.

As for appeal, it would make sense to do so.  Since you applied outland, you have a right of appeal to the IAD and they can also consider H&C grounds - and you'll have a TRP or the case notes for why a TRP wasn't issued.

If you choose NOT to appeal, all the TRP gives your spouse is a tenuous right to remain in Canada.  TRPs can be revoked at any time and they are not guaranteed to be renewable.  So I suppose she can wait until she can complete rehabilitiation, but that means starting the PR process five years after final disposition of the case (which sounds like 2018 if she can get her license back in 2013, although I'm not entirely sure how CIC interprets the five year requirement here.)  That's a long time to live with uncertainty like this.

Were I in your shoes, I'd request an appeal.  It will likely take you 18 months before they'll even schedule a hearing, and in the interim, you can work on the TRP.

I would also suggest trying to find an attorney familiar with TRPs for criminal inadmissibility.  There ARE people who specialize in this type of application - and you don't want someone without experience.   I picked my attorney by looking at Federal Court decisions applicable to my circumstances and found one who had won his clients' case.  That doesn't guarantee success, but it does mean the attorney is good enough to GET judicial review (which is NOT automatic and quite difficult to be successful - my personal estimate is that there's about a 4% chance of a judicial review being successful for the applicant.  That's because ~20% of applications are accepted for review, and about 20% of cases reviewed are successful for the applicant.)

Good luck.  I hope it works out well for you.

mpottier wrote: Yes I have looked into that and unfortunately, both her parents are from the USA, only her Grandmother is a Canadian citizen (On her fathers side). That also points out another flaw in the Canadian system, most countries in the world have some sort of grandfather clause to allow you to live in you ancestral country. For example if you have at least one parent or grandparent born in the UK or Ireland you can apply for a residence visa.  The same goes with most European countries. Here in Korea you just have to have a Korean name and they will automatically give you an open residence visa! All of these visas have few if any inadmissibility clauses. The problem with Canada is that there are too few visas. If you can't get a PR, then you have few options or you have to combine visas, it's absurd. Here in Korea, there are dozens of visas, the PR is barely used, because people are happy enough to be able to work and be with family, renewing a visa every couple of years is not a problem. I still can't get over how harsh the Canadian system is. As a Canadian I am embarrassed.  Also, just an interesting side note, my spouse is from a part of Maine that used to be part of Canada over 150 years ago. Canada relinquished it to the States after the Aroostook War. If she had been born a century earlier, she would have been Canadian.

Edited by Siouxie - 10 Mar 2012 at 2:28am

PS. The new law introduced in 2009, limits the citizenship by decent to one generation born outside of Canada, so her father may be able to get it, but he would not be able to pass it on to her :-( They said it was to not devalue Canadian citizenship, which in my opinion is a joke, Canada is nice but not THAT nice, we are not living in a Utopia here. This just hurts regular people who have no desire to live in Canada for economic or financial gain, but to simply be with their families. 

Hmmmm, I think a call to immigration is in order. I was under the impression that if her father was not a citizen at the time of her birth, then she couldn't get it. But if he becomes a citizen retro actively, then it could be possible. We were always answering the question about her parents being Canadian at the time of her birth with 'No', so we got a negative answer. So basically if you are born before 2009 (which is most people) you could go back multiple generations, as long as you have the birth records and are alive?