‘I’m not a criminal’: Jailed with no charge, no sentence, no oversight
Sitting in a glassed-off visiting cubicle, Masoud Hajivand pulls up the sleeve of his orange inmate uniform, rotates wrist upward to show ropy scars up his left arm.
That’s from the second time this year the Canadian Border Services Agency tried to deport him to Iran. The first time, two months earlier, six CBSA officers gave up on trying to drag him out of his cell as he wept and clung to the bars.
This time, they got him as far as a cell at Pearson International Airport, where he tried to slit his wrists with a piece of metal he found in the cell.
“I tried to kill myself,” he says into the phone connecting him to the other side of the glass.
“I didn’t have a choice – what’s the difference? If I go on the airplane I’m going to die.”
For his pains he spent two days under suicide watch, in a bare cell dressed only in a tear-proof smock.
Hajivand wears the same orange jumpsuit, lives on the same range, uses the same facilities as hundreds of other inmates at the sprawling Maplehurst jail complex in Milton, Ontario, northwest of Toronto.
But unlike the men he lives with, the majority of whom are held on remand, Hajivand has never been charged with a crime.
“I’m not a criminal,” he repeats, like a mantra whose truth needs constant reaffirmation.
“I don’t know what I’m doing here.”
Hajivand is one of more than 200 immigration detainees held in Ontario’s notoriously crowded jails, many of them without charge. Their cases are reviewed monthly, but in practice they could be incarcerated indefinitely.
All of them, Global News has learned, have been hidden for years from Red Cross attempts to ascertain their well-being and ensure Canada’s living up to its international human rights obligations.
“A greater degree of risk to immigrant detainees”
The Canadian Red Cross has conducted annual inspections of immigration detention conditions since 2008, sending its findings in confidential reports to the federal government. Global recently obtained the reports under access-to-information laws.
THE UNWANTED: READ THE SERIES
Year after year, its inspectors slammed the practice of putting immigration detainees in provincial jails in British Columbia and Alberta – the provinces they were allowed to see.
And year after year, its inspectors tried and failed to gain access to Ontario’s jails.
Ontario signed an agreement with the CBSA on October 20 allowing Red Cross access.
“Now we are working on finalizing an agreement with the Canadian Red Cross so that they have more regular access to immigration detainees,” said Yasir Naqvi, Ontario’s correctional minister.
(The Red Cross would not confirm it’s in talks with the province)
Getting to that point took years, however.
The 2008-09 Red Cross report describes access to Ontario jails as a “work in progress.”
The 2013 report says the Red Cross “remains concerned that it cannot currently fulfil its mandate to monitor the detention conditions of all places where immigration detainees are being held in Canada.”
Red Cross spokesperson Celine St-Louis wouldn’t comment on these reports, saying they’re “confidential to the government.
“So I can’t discuss the findings, or the recommendations, or any of the aspects of those reports.”
Federal Public Safety Minister Steven Blaney refused to speak with Global News for this story.
What the Red Cross has seen, it has condemned as risking the safety and wellbeing of vulnerable individuals in Canada’s care.
It’s expressed concerns around “co-mingling” immigration detainees with criminals and accused criminals in jails, where they’re often triple-bunked and cut off from family or legal counsel.
Jails “serve a largely punitive function,” the Red Cross report for 2012-13 reads.
Mixing convicted criminals and people on remand with detainees “presents a greater degree of risk to immigration detainees who are co-mingled with a volatile corrections population, some serving, or awaiting trial for violent or gang-affiliated crimes.”
CBSA spokesperson Pierre Deveau did not directly address questions about detainees’ physical safety in jails. Simply put, border officials put immigrant detainees in jails when they need the space or they think they pose a risk.
“The CBSA relies on provincial correctional facilities to detain higher-risk detainees (for example, those with a violent criminal background); lower-risk detainees in areas not served by an immigration holding centre; and for those detained over 72 hours in the Vancouver area,” he wrote in an email.
Perversely, says immigration lawyer Guidy Mamann, a detainee can end up in jail because he or she has health problems that more lenient detention facilities can’t deal with.
“So they send them to somewhere where there are adequate medical facilities – namely, a full-blown jail.”
In fiscal 2013-2014, the CBSA paid Ontario more than $21 million for jail space for immigration detainees, Deveau said. That works out to about $250 per inmate per day.
Navqi couldn’t say whether Ontario could ease crowding in its correctional system by not renting jail space to the CBSA.
“I am not in a position to give you a response because, honestly, I have not thought about that,” he said.
“This is not a detention centre. This is a high-security jail.”
Deeper within Maplehurst, heavy steel doors click open, then make an echoing boom when they’re locked again.
Hajivand’s status as an immigration detainee makes him something of a pariah, he says. He gets last dibs on the phone and shower, which can mean days without access to either, he says. He recalls being nonplussed when, on first arriving in jail, he was asked if he had anything to smoke.
“I’ve never lived with these people in my life. I don’t know why I’m here,” he says.
“This is not a detention centre. This is a high-security jail.”
But silent treatment and social isolation aside, Hajivand may be one of the lucky ones.
“We have seen people come out of the jails black and blue, literally. Eyes punched, welts on their back, arms bruised,” Mamann said.
“We’ve heard credible complaints of multiple sexual abuse of people who have no criminal record, and who want to say nothing during or after these experiences. During, because no one’s going to care, and you’re in a vulnerable situation, and after, because ‘I just want to put it behind me, I don’t want to remember it, and I certainly don’t want my spouse to find out what happened.’”
Naqvi told Global News he takes these allegations “very seriously.”
“Making sure inmates that are in our care and custody are safe is a responsibility we take very seriously.”
“They just throw in the towel and go home”
At any given time, between 520 and 550 people are in immigration detention in Canada. About 40 per cent of them end up in Ontario provincial jails.
And those kept in jail are detained, on average, for longer: Detainees in Ontario jails spend an average of 40 days in custody – twice the 20-day average for immigration detainees in general.
People can end up in immigration detention because of a criminal background, doubts about their identity or an immigration officer’s concern they won’t show up if ordered to be deported.
But that could include almost anyone: Refugee claimants frequently lack adequate identification. And CBSA officers could cite virtually any reason as suspicion a claimant is a flight risk or won’t show up for a hearing or deportation.
“When they are called in to Immigration, there are a number of landmines placed in front of them,” Mamann says.
“They say, ‘Your application to stay in Canada has failed, and we’re now thinking of sending you home: How do you feel about that?’ ‘Well, I’m not really crazy about returning to Mexico, or Hungary.’ ‘Why?’ ‘Well, I don’t have a job there, my parents are dead, I don’t really have much to go to.’ ‘Would you like to stay here?’ ‘Oh, sure, I’d love to stay here.’ ‘Okay, can you just wait one minute?’
“Now, the client is feeling pretty good. He thinks: ‘Finally, there’s a human being who might take an interest in my case.’ Then the officer returns with two burly CBSA officers, who put handcuffs on him and detain him.”
Immigration lawyer Max Berger goes over a carefully worded response with his clients in which they balance enthusiasm for Canada with a willingness to be deported until they can repeat it perfectly.
“I sit with my client, I have them rehearse that line back to me three or four times, so I’m sure that he has it straight,” Berger said.
Almost three-quarters of male immigration detainees in Ontario jails are held in the Central East Correctional Centre in Lindsay, far from Toronto-based family, counsel or support networks. Detainees in Lindsay stay an average of 82 days there (allowing for early release, that’s equivalent to a four-month jail sentence for someone in the criminal justice system).
Some detainees in Lindsay have been boycotting their monthly detention reviews, says immigration activist Syed Hussan.
“They say that the reviews are bogus, that they are stacked against them, they feel that their voices are not being heard, that every time they show up they get the same decision, month after month after month,” he said.
In September, the advocacy group No One Is Illegal estimated 50 inmates were participating, but, Hussan says, it’s hard to get an accurate number: “people are often moved around, and the numbers are constantly shifting.”
Often, Mamann said, being held in jail indefinitely convinces would-be refugees to simply give up and go home.
“The reality is that the situation becomes so expensive, so frustrating, we’ve denied really effective access to counsel, we’ve cut him off from his family, they just throw in the towel and go home,” he said – even “ in situations where they have good rights of appeal, they have good grounds for staying, where there are serious reasons that they’re going to be harmed abroad.”
Ontario plans to move immigration detainees to a Toronto-area jail in 2015, Naqvi said. In the meantime, the province has set up a shuttle bus system for detainees’ visitors.
“I’m used to seeing him every day, and hugging him”
Before being arrested and jailed without charge, Hajivand had been living in Canada for seven years – his status perpetually shaky.
The Immigration and Refugee Board rejected his initial 2007 claim, that he was fleeing a police crackdown on protest that had already killed his younger brother, because of inconsistencies in his statements (although the tribunal officer “generally observed that the claimant’s demeanour while testifying was satisfactory, and that the claimant was otherwise generally credible”).
A spousal sponsorship fell through when Hajivand’s relationship with his then-Canadian common-law spouse went sour.
Immigration officials ordered him to present himself for deportation in August, 2011. He didn’t – while he admitted in an affidavit that “my conduct was wrong,” he claims to have been “in a complete panic” and didn’t know what else to do.
At that point, a warrant was issued for Hajivand’s arrest. But he continued to live and work in Canada for years after.
He fell in love with Iranian-Canadian Pam Shiraldini and, with her, evangelical Christianity, which he said in an affidavit offered him “a sort of home” when he felt adrift in a new and not always welcoming country.
They met at a party in 2012.
“It was a connection. We talked, and felt comfortable with each other,” Shiraldini said. “We were best friends before he moved in. It was a great connection between us. ”
Shiraldini was delighted that Hajivand bonded with her daughter Melika Mojarrab, then 13.
“I was so grateful that there was a connection so fast between these two. She was so happy to have someone besides me that she could rely on. That was a very good feeling for me, as a mother.”
“It’s really hard for me, because I’m used to seeing him every day, and hugging him, and talking to him face to face, and now I have to travel an hour and a half to see him, and I have to talk to him through glass,” she reflects. “It’s hard.”
Hajivand and Shiraldini were baptized at a Toronto church on New Year’s Eve, 2013.
This, he and his advocates argue, poses an additional danger should he be deported. The Iranian state, which frowns on any religious alternative to orthodox Shiite Islam, saves a special wrath for ex-Muslims.
According to UN diplomat Ahmed Shaheed Iranian law “allows for the application of capital punishment in cases of apostasy.
Between July 2013 and June of 2014, Shaheed estimated, Iran executed at least 852 people – more than 16 a week.
And thanks, ironically, to his supporters, Hajivand’s religious conversion is now all too public should any Iranian border officer care to check.
“These online campaigns began after I was detained by the CBSA, but now that I have learned of them, I am very worried about how they will affect my safety in Iran,” Hajivand wrote in an affidavit.
But the Immigration and Refugee Board rejected his latest argument on these grounds. Hajivand claims he didn’t know what documents he needed.
This puts one arm of a government that’s pulled its ambassador from a country its Prime Minister has declared has an “appalling record of human rights abuse” and “frightens me” in the position of forcing a man to go back there.
It wouldn’t be the first time: Canada has deported 423 people to Iran since 2004; last year, it sent 31 people there.
Blaney’s office referred a question regarding the apparent contradiction to the CBSA.
“Everyone ordered removed from Canada is entitled to due process before the law and all removal orders are subject to various levels of appeal,” spokesperson Esme Bailey wrote in an e-mail.
“Prior to being removed, those under removal order are entitled to have their risk of returning to their country assessed through: the refugee determination process, a pre-removal risk assessment or an application for permanent residence based on humanitarian and compassionate grounds.”
Hajivand doesn’t buy it.
“I never ever, ever, ever thought that any country would do this to people,” he said.
“This is human rights? … Lock up people who haven’t done anything and tell them you have to go to Iran?”
“They are using my taxes to keep me here.”
Immigration officials claim Hajivand’s a flight risk because of the missed 2011 removal date. But he claims he hasn’t exactly been on the run.
He has a common-law partner, treats her daughter as his own, is actively involved in a church and has been working as superintendent at a construction site for years.
“From the day I got a job, I’ve been paying taxes,” he says, and chuckles darkly.
“They are using my taxes to keep me here.”
Nevertheless, he was arrested at a June 27 meeting with immigration officers. He’s been held ever since – first at Lindsay, then at Maplehurst, now at Lindsay again.
That creates particular hardship for Shiraldini and Melika, now 15, who make the trek to Lindsay from Toronto every weekend.
“It takes about an hour and a half, an hour and 45 minutes to come to see Masoud,” Shiraldini explains. Sometimes there are lockdowns, and we don’t have a chance to see him. We can only talk to him for 20 minutes.”
“He’ll be out of reach”
In the meantime, he’s in limbo: The most recent of Hajivand’s monthly hearings took place last week in a busy industrial area near Toronto’s Pearson International Airport.
Hajivand attended via video feed and had a Farsi translator but no lawyer (Hajivand’s lawyer Anthony Navaneelan said he didn’t show up because they had no viable plan to get Hajivand bail).
Shiraldini and Melika are there, however, watching Hajivand on the monitor. ‘Minister’s counsel’ Matthew Tong, who acts as a prosecutor, tells the hearing the CBSA is “actively working” to find a way of deporting Hajivand to Iran.
Because Hajivand arrived on an Air Canada flight without valid documents, the government wants the airline to pay for his ticket out of the country, Navaneelan says.
Air Canada wouldn’t comment on specific cases, and wouldn’t say how many flights like this it pays for.
Hajivand’s lawyer says the stalemate is whether CBSA can oblige Air Canada to pay for a charter flight for Hajivand, since his bitter resistance makes it impractical to put him on a commercial flight. He estimates the cost at about $300,000.
In the meantime, lawyers for the government say Hajivand’s fear of being deported to Iran make him enough of a flight risk to warrant his continued incarceration.
Christopher Marcinkiewicz, the Immigration and Refugee Board member overseeing the hearing, agrees. Hajivand is sent back to his cell until November 24 – or until the CBSA and Air Canada reach an agreement on a charter flight. He has no idea which will come first.
As of today, he’s spent 180 days in jail, equivalent to about a nine-month sentence.
Shiraldini, a Canadian citizen, has applied to sponsor Hajivand.
But that will take months – maybe more than a year, his lawyer says. In that time he could still be deported.
“[A CBSA] officer said that you can apply for him from outside the country,” Shiraldini said, fighting to control her emotion.
“I said: ‘I think you don’t understand exactly what’s happening here. If he leaves Canada, how could I apply for him? He’ll be out of reach – it will be impossible.”
In the meantime, Hajivand says, he has nightmares of men in CBSA uniforms coming into his cell to take him to the airport.
“Two days a week I can relax – the CBSA won’t come for me on Saturday or Sunday,” he said.
“I ask for sleeping pills, but when they give them to me the same nightmares return. … It just keeps playing, like a tape.”
With files from Anna Mehler Paperny and Leslie Young
The Canada Day deportation attempt
A CBSA e-mail describes the failed attempt to get Hajivand out of his cell and on a plane to Iran on Canada Day. On September 18, a second deportation was cancelled when Hajivand tried to slit his wrists with a piece of metal he found in his cell at Pearson International Airport. “I didn’t have a choice – what’s the difference?,” he later explained. “If I go on the airplane I’m going to die.”
Click on the excerpt to read the whole thing.
PC=”person concerned,” ie. Hajivand, IHC=”Immigration Holding Centre,” LBPIA=”Lester B. Pearson International Airport,” MCC=”Maplehurst Correctional Centre,” “GTEIOD“=Greater Toronto Enforcement and Intelligence Operations Division (CBSA’s Airport Road headquarters), “A&D“=Arrivals and Departures (at Airport Road), “G4S“=a private security company.
READ: Affidavit of Masoud Hajivand
READ: Red Cross report on Canada’s immigration detention, 2012-13
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