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In Defence of Invisiblized Noncitizens: Seeking Justice in the Canadian Immigration Detention System

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In Defence of Invisiblized Noncitizens: Seeking Justice in the Canadian Immigration Detention System In Defence of Invisiblized Noncitizens: Seeking Justice in the Canadian Immigration Detention System by Marie Coligado A thesis submitted to the Faculty of Graduate and Postdoctoral Affairs in partial fulfillment of the requirements for the degree of Master of Arts in Sociology Carleton University Ottawa, Ontario © 2018 Marie Coligado Abstract The Canadian immigration detention system is indefinitely holding noncitizens embodying precarious statuses without setting time limits to their deprivation of liberty. Presided over by Immigration Division board members, detention review hearings are supposed to be a means through which they can seek release. This thesis demonstrates, however, that immigration detainees have severely limited access to justice through these quasi-judicial proceedings where the evidentiary burden is shifted on to them. They face overlapping challenges in seeking legal representation while held in immigration holding centres and provincial prisons, including lack of information on their right to counsel, limited Legal Aid funding, and language barriers. Using interviews with lawyers and former detainees, and non-participant observation of detention reviews, this thesis argues immigration detainees are largely invisiblized by their limited access to justice, which is fostered by the Canadian sovereign state and its highly securitized political context that is particularly wary of racialized noncitizens. ii Acknowledgements I would like to thank my co-supervisors, Daiva Stasiulis and Aaron Doyle, for their immense support and patience throughout my research process. Your dedication and enthusiasm towards my academic growth are truly appreciated. I feel fortunate to have been able to work with both of you and receive your kind guidance along the way. Daiva, thank you for always reminding me of the story I sought to share through my thesis. I am grateful for your insightful feedback that encouraged me to produce a more thorough analysis than I thought I was capable of. Aaron, thank you for asking the challenging questions and motivating me to act for what I believe in. Your drive for social justice and stopping the ‘revolving door’ has been incredibly inspiring. I wish to thank Patti Lenard for her thoughtful and instructive critique of my thesis. I am also grateful for the many professors and mentors, who have encouraged my academic pursuit and challenged me to become a more critical thinker, especially Kate Fletcher, Valerie Steeves, Janet Siltanen, and R. Karl Hanson. I hope you know that your devotion to your students’ success does not go unnoticed. Many thanks to our wonderful staff at the department, who never ceased to provide their utmost support. Thank you so much to Darlene Moss, Paula Whissell, and Xiaobei Chen for always having the answers and helping me not feel so lost in grad school. I am also grateful for the generous financial support provided by Carleton University’s Department of Sociology and Anthropology, and the Social Sciences and Humanities Research Council of Canada. This achievement would have been impossible without my family. To my parents, no words can describe how thankful I am for your unconditional love and patient understanding. I am incredibly blessed knowing that I have your full support in all that I do. Christine, thank you for always listening and reminding me that “soon the fog will clear up”. We joke that you could have written this thesis for the many times you reviewed my drafts, but I hope you know just how much I truly appreciate your help and encouragement. Veronica, thank you for all the laughter and hugs that always make me feel better. Your excitement every time I submit a draft means so much more to me than I could ever express. Big thanks to my dearest friends for their sincere support. Laleh and Joey, thank you for being by my side through grad school. It has been a challenging journey, but I feel very lucky to have been able to go through it with such intelligent and understanding friends like you. Javaria and Alanna, thank you for never failing to check in on me, and saying all the comforting words to lift me up. Daisy, I appreciate your listening to my worries iii and always encouraging me to persevere. Thank you for reminding me of my goals and my strength in times when I myself have forgotten them. Finally, I am grateful to all the participants who shared their stories and experiences with me. Your perseverance towards seeking justice, despite the challenges embedded in the immigration detention system, is inspiring. I especially wish to thank Katherine for being incredibly generous with her time and knowledge. iv Table of Contents Abstract ............................................................................................................................... ii Acknowledgements ............................................................................................................ iii Table of Contents .................................................................................................................v List of Acronyms .............................................................................................................. vii List of Appendices ........................................................................................................... viii CHAPTER 1. INTRODUCTION .....................................................................................1 1.1 Contextualizing the Research Question .....................................................................2 1.2 Thesis Outline ............................................................................................................4 CHAPTER 2. OPENING THE “BLACK BOX” ............................................................7 2.1 Common Features of Immigration Detention ............................................................9 2.2 Who are Immigration Detainees? .............................................................................12 2.3 Legitimizing Deprivations of Liberty ......................................................................17 2.4 The Canadian Way of Administrative Confinement ................................................20 2.4.1 Immigration Detention at the Present Time ......................................................21 2.4.2 Reproducing Priorities of a White Settler Colony .............................................25 2.4.3 Securitization of Migration ................................................................................32 2.4.4 Towards Accessing Justice ................................................................................37 CHAPTER 3. METHODOLOGY ..................................................................................39 3.1 Adopting Interpretive Methodology and Qualitative Approaches ...........................39 3.2 Challenges in the Field: Negotiating Access to Invisiblized People ........................41 3.3 Co-generated Data and Thematic Analysis ..............................................................52 3.4 Remaining Cautious for Ethical Research ...............................................................57 3.5 Reflecting on Researcher Positionality ....................................................................59 3.6 Lessons Learned as a Novice Researcher ................................................................63 CHAPTER 4. ACCESS TO JUSTICE AND LEGAL REPRESENTATION ............65 4.1 Vanishing in the Immigration Detention System .....................................................66 4.2 The Role of Legal Representation ............................................................................71 4.3 Detainees’ Costly Right to Legal Counsel ...............................................................75 4.4 Carceral Spaces: From IHCs to Provincial Prisons ..................................................77 4.4.1 Locating Detainees in Securitized Provincial Prisons ......................................82 4.4.2 Negotiating Institutional Barriers .....................................................................87 4.5 Tight Procedural Timelines: Immediacy of the 48-Hour Hearing ...........................90 4.5.1 Preparation of the Release Plan ........................................................................93 4.6 Roots in Detainees’ Non-Citizenship .......................................................................97 v CHAPTER 5. DISCRETION IN DETENTION REVIEW HEARINGS .................106 5.1 Rubber Stamp of Continued Detention ..................................................................107 5.2 Non-Custodial Measures for Immigration Detainees ............................................112 5.3 Making Sense of the IRB Decision-Making Process .............................................117 5.4 To Bear the Evidentiary Burden.............................................................................122 5.5 Checks and Balances on Discretionary Powers .....................................................124 5.6 Discretion as a “Powerful Form of Government” ..................................................131 CHAPTER 6. CONCLUSION ......................................................................................136 6.1 Summary of Sociological Contributions ................................................................137 6.2 Limitations and Future Research............................................................................142 6.3 Potential for Undoing Injustice ..............................................................................145
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