Man, 44, born and raised in Canada, wins reprieve from removal to Mexico

TORONTO – A father of three who was born in Canada and lived his entire life here has won a reprieve on a technicality from being expelled.

In a recent decision, a Federal Court judge in Toronto said an immigration official had been unreasonable in concluding Victor Duarte, 44, faced no risks if sent to Mexico — a country he has never been in.

Duarte’s father was a Mexican diplomat and Duarte became a citizen of Mexico at birth despite being born in Canada and never acquired Canadian citizenship. He later married a Canadian and had three Canadian-born children.

According to his lawyer, court records show, he was unaware of his lack of Canadian citizenship that meant he had been living here all along without status. As a result, he was ordered to leave — although it was not immediately clear how his situation came to the attention of immigration officials.

In a challenge to the order, Duarte argued he would be in danger or otherwise face cruel or inhumane treatment if forced to go to Mexico. He said he had nowhere to go there, no job prospects or relatives to rely on for support and would be homeless, all of which would leave him vulnerable.

“He would be viewed as a foreigner having never lived in Mexico and perceived to have money,” court documents cite his lawyer as arguing. “Therefore, he would be the target of criminals and other persons who would see him as a vulnerable human being who could be exploited by them.”

Duarte said he feared the possibility of abduction, kidnapping for ransom, or forced disappearance by “criminal elements.”

However, a senior immigration officer ruled against him last August. Among other things, the officer found that being homeless or having no job prospects or relatives to rely on in Mexico didn’t constitute “risks” as defined under immigration laws.

Given that the risk Duarte said he would face is one faced generally by others in Mexico, he didn’t fall under the act as needing protection.

“The evidence before me indicates that the applicant fears criminals in Mexico,” the officer stated in his decision. “Crime affects every citizen and resident in Mexico.”

Before Federal Court in Toronto, lawyer Donald Greenbaum argued his client’s situation was unique because he had never been to Mexico. As such, Duarte was unable to prove he faced specific personal risks as can someone who has fled a country and fears being sent back.

In response, the government argued the risk of kidnapping and crime in Mexico is generalized and therefore cannot form the basis of a successful application for protection in Canada.

Judge Douglas Campbell rejected that thinking.

“The evidence before the (immigration) officer raises the issue of whether ‘unique ineptitude’ constitutes a personalized risk — that is, the applicant’s particular circumstances personalize an otherwise generalized risk of crime and violence faced by Mexicans, because they render him uniquely vulnerable and unable to protect himself,” Campbell ruled. “I find that the officer’s failure to address this issue renders the decision unreasonable.”

Campbell set aside the decision and referred the matter back to another immigration officer.