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  September 28, 2008

US war resister is granted stay of deportation


Canadian judge rules against deportation of outspoken anti-Iraq war resister
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biography

Yavar Hameed is a lawyer whose practice focuses on the protection and advocacy of human rights and civil liberties in the following areas: Administrative Law, Immigration and Refugee Law and general civil litigation. Yavar is a sessional lecturer in the Department of Laws at Carleton University, a member of La Ligue des droits et libertes, l’Association des juristes de l’expression francaise de l’Ontario (AJEFO), Lawyers Against the War (LAW) and the World Social Forum (WSF) movement.



Iraq War Resister Jeremy Hinzman won a stay of deportation this week as a judge refused to allow Canada to send him back to the United States to face prosecution for desertion. Hinzman is one of numerous war resisters currently in Canada. Despite the Canadian parliament passing a non-binding resolution on June 3 calling for resisters to be allowed to stay in Canada permanently as conscientious objectors, the Canada Border Services Agency continues to routinely effect deportation orders of US war resisters. Ottawa based immigration lawyer Yaver Hameed believes that "the contradiction between the non-binding parliamentary motion that allows war resisters to stay in Canada versus the Canada Border Services effecting deportation orders to war resisters reveals a lack of commitment to our basic democratic values."


transcript

US war resister gets stay of deportation

ZAA NKWETA, TRNN: Iraq War resister Jeremy Hinzman won a stay of deportation this week, as a judge refused to allow Canada to send him back to the United States to face prosecution for desertion.

JEREMY HINZMAN, IRAQ WAR RESISTER: I mean, we're happy. But we're not out of the woods yet. We still have to appeal to the Federal Court, and we hope that they'll grant us the leave to appeal, because if they don't, we'll have to go through the same process that we just went through. So the fight's not over.

NKWETA: The ruling came after the Federal Court in Canada heard an immigration official had made serious errors in assessing the hardships the resister and his family would face if forced back to the United States. Hinzman's lawyer Alyssa Manning argued that new evidence suggests outspoken critics of the Iraq War like Hinzman face harsher treatment than other deserters.

ALYSSA MANNING, HINZMAN'S LAWYER: We're not out of the woods yet. We do now have another decision from the Federal Court that clearly recognizes that people who speak out publicly in objection to the war in Iraq or to the actions of the US military in that war are treated differently. And although the court says that most deserters are not punished and most are just given a dishonorable discharge, the ones who are punished are the ones who speak out publicly, and it clearly states that in the reasons. And so this in conjunction with the Glass decision, we now have two Federal Court decisions, with the new evidence that we've been presenting, recognizing that people who speak out are treated differently. And so I think, although we're not out of the woods yet, that's good news.

NKWETA: Hinzman deserted the 82nd Airborne Division in January 2004, just before he was scheduled to redeploy to Iraq. He fled to Toronto with his wife and young son after his application for conscientious objector status was rejected in the United States. Canada rejected his refugee claim, a decision two courts upheld on the basis he faces prosecution, not persecution, in the United States. Hinzman argued for the deportation stay while the courts decided they will review Ottawa's rejection of his bid to remain in Canada on humanitarian and compassionate grounds.

MANNING: At the end of the Department of Justice counsel's presentation today at Federal Court, part of the test for stay is the balance of convenience, and it's basically whether the public interest favors removal or does the public interest favor the applicant remaining. And the Department of Justice lawyer said, if Canadian courts permit resisters—actually, he said "deserters"—to stay in Canada, they will be disrespecting the lives of the servicemen and women that have been lost in Iraq. I thought it was a gross mischaracterization of the situation. But when I was arguing on balance of convenience, I was able to say, "On June 3, a majority of the House of Commons voted to allow people such as the applicants to stay, and that shows not only that their arguments as to why war resisters should not be allowed to stay don't really fly, [but] also that there is clear public interest, and the political aspect of the campaign interacts with the legal aspect as well."

NKWETA: Despite the Canadian Parliament passing a non-binding resolution on June 3 calling for resisters to be allowed to stay in Canada, the Canada Border Services Agency continues to routinely effect deportation orders of Iraqi War resisters.

YAVAR HAMEED, IMMIGRATION LAWYER: The contradiction between, on the one hand, the non-binding motion in the House of Commons to grant refuge to US war resisters, versus what Canada border services is doing routinely to deport or go through the measures of enforcement, reveals a lack of commitment to, first of all, our basic democratic values. They are interested in simply narrowly interpreting and applying legislation and not doing so in a manner that incorporates what our political, democratic, and social values are.

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