Family Seeks To Stay In Canada On Humanitarian And Compassionate Grounds

By Andy Semotiuk | February 24, 2015

US and Canadian Immigration Lawyer Andy Semotiuk: Here’s a story that no doubt deserves a sympathetic ear, but also deserves some extra scrutiny:

An immigrant family who live in Whitehorse is being deported from Canada and two parents are now facing an unimaginable decision regarding their youngest son.

Sergio Rojas is from Mexico and his partner Linda Martinez is from Nicaragua.

The couple have a seven-year-old boy who was born outside of Canada.

Their three year-old son, Jonathan, was born in Yukon and is a Canadian citizen. He has a malformed skull which requires medical care.

The couple had applied for residency in Canada under compassionate and humanitarian grounds but were denied. They’ve been told they have to leave the country on March 4.

Pediatricians and therapists have told the couple their son won’t receive proper medical care if they return to Central America.

Rojas says an immigration officer in Vancouver told the couple they could leave Jonathan in Canada.

“Ten days ago immigration called me and says ‘you have to leave, you have two choices. We know he’s sick, but you have two choices: You can leave him here, or you can take him.”

While we don’t have all the facts of the case, it looks to me like a sad, but not unique, situation. You can find many stories about individuals and parents seeking help on Humanitarian and Compassionate (H&C) grounds. However, when you hear those two words, there is a question you need to ask: what were the people doing here in the first place?

The parents’ immigration situation is delicate because it could open the door to others coming into Canada, having children, and wishing to remain in country.

The story does not provide details about why this couple were applying under the H&C category, but I suspect it was for reasons unconnected to the birth of their son. More likely it has to do with their illegal entry into Canada.

Humanitarian and compassionate grounds are the last resort for people who wish to remain in Canada. This is not say that those reasons are always invalid. But you must bear in mind that H&C grounds are not there as a normal channel of entering into and staying in Canada. Put simply, if the couple was in Canada legally in the first place, they would not be in the situation they are now.
As for whether the boy’s Canadian citizenship entitles the parents to remain in Canada, this brings up the “myth of the anchor baby,” a subject I have touched on before. Being born in Canada does give the boy citizenship, and he can certainly stay in Canada. However, this does not entitle the parents to remain in the country. That is why the couple was given the choice or either leaving with their son, or leaving without him. If they leave with him, the boy can return to Canada when he is 18 and sponsor his parents to come to Canada. But until then, they are not entitled to reside in Canada.
The parents’ immigration situation is delicate because it could open the door to others coming into Canada, having children, and wishing to remain in country. It’s a precedent the government wants to avoid for a variety of reasons, such as the added cost to the Canadian taxpayer for health care, welfare, and other expenses for people who may enter Canada illegally.
It’s a tough situation. According to the above story, the family has a member of parliament on their side who will seek redress from the Canadian minister of immigration. It will be interesting to see if things turn out in their favour because often in these cases the people are sent home.

Andy Semotiuk is a Canadian and US immigration lawyer with immigration law firm Pace Immigration. You can learn more about Andy at My Work Visa.