Jeremy Hinzman deserted from his U.S. Army unit, which was about to deploy to Iraq, and, on 3 January 2004, entered Canada with his family.  On Tuesday, Canada’s Federerl Court of Appeal reversed a lower court decision that had upheld the Canadian government’s denial of permanent residency to Hinzman on humanitarian and compassionate grounds.  The Federal Court of Appeal’s ruling in Hinzman v. Minister of Citizenship and Immigration, 2010 FCA 177 (July 6, 2010), is available here.

Hintzman initially sought refugee status, which was denied.  He then filed for a Pre-Removal Risk Assessment (PRRA) and permanent residency in Canada on humanitarian and compassionate grounds.  The Immigration Officer who reviewed Hinzman’s PRRA application concluded that the UCMJ’s prohibitions against desertion and absence without leave were laws of general application and that prosecution under such generally applicable laws did not establish a well-founded fear of persecution.  The Immigration Officer also found that there wasn’t convining evidence that the United States was unwilling or unable to protect Hinzman. The same Immigration Officer also rejected teh permanent residency request.

According to the Court of Appeal, in denying the permanent residency request, the Immigration Officer focused on the wrong issue.  According to the court, the key issue was “will Mr. Hinzman be subjected to disproportionate hardship if returned to the United States, regardless of the existence of a law of general application or state protection and notwithstanding other findings on differential treatment and due process?”  The Immigration Officer, ruled the Court of Appeal, failed to address that question when ruling on the permanent residency application.

The Court of Appeal explained:  “The beliefs and motivations of Mr. Hinzman were of important significance to the ultimate decision, given the context of an H&C application.  The appellants had also provided some evidence that the right to conscientious objection ‘is an emerging part of international human rights law’.”  The Immigration Officer erred by failing to discuss these factors in her decision denying permanent residency on humanitarian and compassionate grounds.

The Court of Appeal emphasized that its ruling shouldn’t be construed as suggesting any particular outcome for Hintzman and his family.  The court concluded by setting aside the Immigration Officer’s decision denying the permanent residency application and remanding the application “for redetermination by a different officer.”

15 Responses to “Canada’s Federal Court of Appeal gives U.S. Army deserter another shot at obtaining permanent residency on humanitarian and compassionate grounds”

  1. heh says:

    eroding moral authority through unilateral war has consequences.

  2. Anonymous says:

    WTF does that mean? So “multilateral” war means it’s moral? Morality is subjective. So how many “allies” need we count up before we have moral authority? 1 more, as in Britain? 2? 5? 10? How many? How many did your Kool-Aid spewing poli sci prof say would amount to moral authority? Free your mind and your a– will follow!

  3. heh says:

    point is we have lost so much legitimacy through Iraq that a decision like this is now possible. sad.

  4. Late Bloomer says:

    I don’t think Iraq was exactly the watershed event that eroded our legitimacy. But since you mentioned it, why is legitimacy of so much concern? And are we to presume that you equate legitimacy with morality? Hitler was legitimate. Mao was legitimate. Did that somehow negate their morality, or lack thereof? The real irony is that neither of them really cared as much about legitimacy.

  5. Gene Fidell says:

    “Hitler was legitimate” is accurate in the not unimportant sense that the Nazi party had competed and eventually did well in elections to the Reichstag, and he was after all named as Chancellor by President von Hindenburg. But more certainly needs to be said: any claim to legitimacy was soon forfeited by any standard. I heartily recommend Richard J. Evans’s magisterial “The Coming of the Third Reich” and “The Third Reich in in Power.” The final volume in the trilogy, “The Third Reich at War,” is equally extraordinary, but does not speak to the question of legitimacy, as–pretense aside–that had ceased to be an issue long before Sept. 1, 1939.

  6. Late Bloomer says:

    Well put, Mr. Fidell. But that begs the question of whether Hitler’s [im]morality is what forfeited his legitimacy. Or, to bring it closer to home, was not King George III legitimate? If so, did his conduct in the colonies forfeit or erode his legitimacy either here or abroad?

  7. Anonymous says:

    I hadn’t expected that this would turn into what it did, but having said that, we emerged from 9/11 with a worldwide out-pouring of support for America.

    That support maintained when we invaded Afghanistan because we did what any country would do, go after the folks that attacked us.

    Then, we decided to invade Iraq. Never mind that there was no evidence of WMDs or AQ insinuation into Iraq (in fact, the opposite was apparent in that the secular Hussein was no fan of AQ or vice versa).

    And after that our goodwill evaporated like water on a hot Baghdad day.

    Seems like a pretty high correlation.

    Economically; blood, sweat and tears; international standing; and the war in Afghanistan, is there any other choice made that so negatively affected so many things as the one to invade Iraq?

  8. Gene Fidell says:

    Hmm, was George III legit? Yes, if you begin with the Act of Settlement, 1701, although I’m sure there are soreheads who have never gotten over the Norman Conquest, the coronation of Henry VII (first of the Tudor monarchs), or the Glorious Revolution (think William & Mary). On LB’s second question, I think the Declaration of Independence makes an unanswerable case for forfeiture. Unlike Charles I, whom the regicides thought had forfeited his legitimacy, all George III lost were some colonies.

  9. umm says:

    by legitimacy i meant the popular acceptance of a government and its policies. not your fun analysis of 18th century legal documents inter alia. thanks for that though.

  10. sin nombre says:

    You gotta admit, a servicemember would be hard-pressed to find H&C grounds prior to Bush/Cheney, Gitmo, Iraq … To the rest of the world, we’ve slid so far back on moral authority or compliance with fundamental norms of civilized societies. And the Tea Party, birfers, oath keepers, Arizona lawmakers, repubs in general, keep us slipping in that direction.

  11. Anonymous says:

    Your partisan nature just can’t help itself from bleeding through your post, can it? DoJ was right to drop the Black Panther case and so-called sanctuary cities are well within their rights to violate federal law, right? That is what is bringing us back to a decent measure of esteem in the eyes of the world, right? Spare us the progressive soap-box.

  12. Late Bloomer says:

    That “fun analysis” is precisely what was missing from your previous post. Popular acceptance of a government and its policies? Care to venture a guess as to what percentage of colonists characterized themselves as loyalists? There’s your popular acceptance. Doesn’t make it legitimate. Morality and ethics are normative. They exist despite popular support or opposition.

    Do we not care for ancient Greek and Roman history anymore?

  13. Anonymous says:

    how are the sanctuary cities any different from Arizona usurping Federal supremacy on immigation?

    Both have decided they will bypass the Feds on immigration.

    You can despair the progressive soap box, meanwhile, I wonder whither the sane conservatives of the 80s and 90s. The guys who were reasonable, who would have looked at the Glenn Becks of the world and laughed in their face.

    Heck, today Reagan, a guy who raised taxes three different times during his administration, who negotiated with his enemies (Iran-Contra, Soviets NW treaties), who pulled out of Beirut, would be no favorite of the TP’ers.

  14. Ugggh says:

    This thread needs a mute button.

  15. Anonymous says:

    It was mute for 2 hours, Ugggh, til you spoke up.