Guest post by Simon Wallace. Simon is a PhD candidate at Osgoode Hall Law School, York University (Toronto, Canada). Before beginning his doctoral studies, he was a refugee and immigration lawyer who worked almost exclusively with immigration detainees.

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https://www.thestar.com/news/canada/2018/02/25/immigration-detainee-ebrahim-toure-marks-five-years-without-freedom-whats-going-on-with-me-is-not-right.html

A recent Canadian deportation case shows us that, no matter how it is dressed up, deportation is an illiberal practice. In a world fully organized into separate states, Matthew Gibney reminds us, no one can be banished, but everyone can be returned. Return, however, is not some benign legal process and deportation is not some simple legal consequence. This case—which involves alleged fraud, long-term detention, a potentially stateless man, and investigations in two countries—shows us something important: deportations do not just happen seamlessly, they are made real by coercion, cooperation, and coordination.

Mr. Ebrahim Touré spent five and a half years in immigration detention before he was released on bail in 2018. Deportation, the authorities recognized, was not going to happen anytime soon because they could not get a passport for Mr. Touré. In November 2020, Mr. Touré was re-arrested but released on a significant bail shortly after. The Canadian Border Services Agency (CBSA, the governmental organization responsible for immigration enforcement) explained that it finally got Mr. Touré a passport and had booked him a removal flight—just days before his wife was expected to give birth.

For years, the Gambia, a potential country of citizenship for Mr. Touré, refused to recognize him. This changed after a shadowy visit from a Canadian officer. Under examination, this CBSA officer explained that he was in The Gambia on other business when he arranged for an impromptu meeting with state officials regarding Mr. Touré. What was discussed? We do not know because the officer did not take notes. What kind of continuing communication was there between the officer and The Gambia? We do not know because—instead of using his Government of Canada email, which would be subject to access to information law—he used his private email and private WhatsApp accounts to communicate. Will the officer turn over his private correspondence? No, he admits to deleting emails and says he lost access to his WhatsApp account.

In August 2020, a package, without a covering letter, arrived at a CBSA office. It contained a passport, some pictures, and a birth certificate for Mr. Touré. The passport, however, was irregular on its face. It purports to have been issued before Mr. Touré’s birth was officially registered, a fact that Mr. Touré’s lawyer described as a “metaphysical impossibility.” What prompted The Gambia to suddenly extend citizenship rights to Mr. Touré?

After an investigation in The Gambia, the answer to that question looks simple: fraud. It appears that a former immigration detainee in Canada who was deported, posed as Mr. Touré and applied for a passport on the basis of fraudulent documents. Investigations are now pending in both Canada and The Gambia. In Canada, the highly irregular—and potentially criminal—conduct of the CBSA officer have renewed long-term calls for independent oversight of the deportation agency.

It would be a mistake, however, to chalk up the irregularities in Mr. Touré’s case to a “vigilante” officer gone rogue. On the one hand, there are real long term systemic concerns here about continuing misconduct at the CBSA. But more important, I argue, is that this case offers us a glimpse of the force, of the coercion, the pain, that is applied to make people into deportable subjects.

Mr. Touré claimed protection in Canada in 2011. He arrived on the strength of a fraudulent French passport but explained, in the context of his refugee claim, that he was a citizen of Guinea. In 2012, his claim, and his subsequent application for judicial review, were both declined. By law, he was required to leave Canada. In November 2012, he did not attend a pre-removal meeting with a deportation officer and a warrant for his arrest was issued.

In February 2013, after coming into contact with a municipal police force, that warrant was executed and he was taken into custody. He was placed at the Immigration Holding Centre (IHC) in Toronto. The IHC is many things and the conditions in it should not be romanticized, but it is different than Canada’s criminal jails: detainees may wear their own clothes, there is an on-site doctor and legal aid services, and detainees often have their own rooms.

Immigration detention law in Canada is much litigated, but not terribly complex: it fundamentally boils down to a single statutory provision that allows for detention when a person is a ‘danger,’ unlikely to appear, or the subject of an investigation. At its most basic, if the CBSA can show that a person is unlikely to participate in their own deportation (i.e. that they will not attend at the airport when they are told to), the state may detain a person, seize control of their body, to require them to leave the country. This power is not, in theory, unlimited: “Absent a possibility of deportation,” the Canadian Federal Court of Appeal recently explained, “detention in [the immigration] context is no longer possible.” This judgement reiterated a key theoretical principle: immigration detention is supposed to be administrative and not penal. Or, to put it simply, detention exists to enable the machinery of deportation, it should not be used to punish or inflict pain.

Mr. Touré’s detention can be broken into two periods. Initially Mr. Touré was detained in 2013. No one was worried at the time of his arrest that his detention would become lengthy: Mr. Touré gave the government a Guinean birth certificate and, on the basis of this document, deportation was scheduled for just over one month after his arrest.

The deportation did not work. Upon Mr. Touré’s arrival in Guinea, the Guinean officials determined that the birth certificate was fraudulent. He was denied entry and returned to Canada and Canadian custody. And so began the second period of his detention. On the one hand, this detention might appear unlawful: if Mr. Touré’s country would not take him, why hold him? On the other hand, what if Mr. Touré was disingenuous about his citizenship and, but for his non-cooperation, he could be deported to a third country? For example, Mr. Touré intimidated—and later said—that he might have citizenship in The Gambia. He explained that his parents moved between countries when he was a child. Born around the time as new post-colonial states in West Africa, he was unsure of where he has a lawful claim to rights, if anywhere. The CBSA was unconvinced and complained, citing inconsistencies and ambiguity, that he “feigned cooperation.”

Canadian immigration detention law is preoccupied with the allegedly intransigent detainee. A well-placed falsehood, a stymied deportation, could all be part of a larger plan to thwart the state’s immigration control objectives—or at least that’s the thinking. Writing about another case, one Federal Court judge put it this way: “This Court’s impression is that the Unknown Person considers himself to be the director of a play and Canadian authorities are but actors subject to his direction.” The effect of this thinking transforms an immigration detention into something that is explicitly about the application of pain. Molly Joeck and Siena Anstis recently showed how, when the law is faced with an “uncooperative” detainee, detention is used coercively to “induce migrants to collaborate in their own removal and to discipline conduct perceived to be transgressive.”

When Mr. Touré and his CBSA escorts got back to Canada they did not return to the Immigration Holding Centre, they went to a maximum-security jail. Mr. Touré would stay there, in an orange jumpsuit, kept in a cell, and subject to long lockdowns, for years. A psychiatrist would later report that because of his isolation and limited social interaction, Mr. Touré had acquired a disorder “characterized by marked cognitive difficulties and auditory visual hallucinations.” What accounts for this new, harsher, prison placement? The transformed purpose of his detention. Before the attempted removal, he was detained so Canada could get him on a plane, now he was detained in the context of an allegation of non-cooperation. The heat was, I suggest, being turned up. Or, as a CBSA officer would put it a few years later in a slightly different context, “What if we rattle his fuckin’ cages?

Detaining Mr. Touré was expensive. While it is difficult to peg exact costs (and they vary year over year), immigration detention in Canada costs approximately $320 a day, per person. Taking into account the labour of multiple deportation officers, private investigators, and some of the Government of Canada’s best lawyers, I estimate that over $600,000 was spent on the effort to remove Mr. Touré from Canada. Or, to put it a bit more on the nose, the CBSA spent over $600,000 and got an irregular passport by, it appears, breaking the law.

Some people are undocumented, some are stateless, some are refugees, some do not want their citizenship, and some states will not recognize their citizens. In Deporting Black Britons, Luke de Noronha shows how deportation is “embedded within wider bilateral and foreign policy relationships.” States, using a combination of carrots and sticks, cooperate and cajole each other into recognizing people as their own. It should give us pause to notice, as de Noronha urges us to, that deportation sustains and builds global disparities, often along racial lines. Sometimes—given the effectiveness of cooperation and the acceptability of some citizenship claims—deportations can appear frictionless: no harder than applying for a passport you are apparently entitled to. Other times, we can see how much work goes into making someone deportable.

Mr. Touré’s deportation has been cancelled, but if a new passport appears no doubt the CBSA will try to deport him again. The CBSA officer is under investigation and that is surely a good thing. At minimum, police officers ought to follow the law and we ought to know who knew what, when. But our investigation and critique should be wider. Behind the liberal lie—deportation is a natural legal consequence for some people—we can observe a grimmer realpolitik at work. To make Mr. Touré deportable, to get him a citizenship, the CBSA worked. And that work was expensive, it was predicated on a lie, and it was painful.

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How to cite this blog post (Harvard style) 

Wallace, S. (2020). Deleted Emails, Fraudulent Documents, and Maximum-Security Prisons: A Canadian Case Shows the Illiberalism of Deportation. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/12/deleted-emails [date]