Removal Order Appeals
The Immigration Appeal Division (IAD) is one of the three tribunals that make up the Immigration and Refugee Board. It has what is called "equitable jurisdiction" to hear appeals from Permanent Residents. Examples are appeals of removal orders due to criminality, appeals of refused sponsorship applications, and residency appeals for Permanent Residents who may have failed to comply with their obligations.

In the case of removal order appeals, the IAD can weigh the factors in favour of non-removal—such as establishment in Canada, presence of family or children, efforts at rehabilitation, etc.—against those for removal—such as a lengthy criminal record, lack of establishment and inability to rehabilitate. These proceedings are very adversarial in nature and require the skill set of a lawyer. You can present evidence, have witnesses testify in your support and present arguments for your non-removal, including evidence of eventual hardship in your home country.

Removal orders are issued to Permanent Residents who have been convicted of an offence that carries a penalty of at least 10 years, or for which they have served more than a 6 months sentence. If you're a Permanent resident and you've received a removal order, you have the right to appeal the removal to the IAD, but the appeal must be filed within 30 days from the day you're given a removal order, likely at your inadmissibility hearing. The only exception is if you're served a sentence of over two years, including pre-trial custody that is often counted at a ratio of 2:1 or 3:1. If that's the case, you have no right to appeal. For example, a permanent resident who serves 8 months plus a day in pre-trial custody (counted as 2:1) and is then sentenced to another 8 months at trial, would have served 24 months plus a day, thus preventing them from filing an appeal. For this reason, it is crucial that your criminal lawyer be aware of the implications of your sentence or of pleading. If not, ask them to consult an immigration lawyer.

At the appeal, the IAD will consider whether there are sufficient humanitarian and compassionate factors, including the best interests of the child, to justify either dismissing the removal order or staying the order on conditions. After hearing the matter, the Board member has three choices: cancelling the removal order, staying the removal based on certain conditions, and dismissing the appeal altogether. Just like a negative refugee decision, if the IAD issues a negative decision that is wrong in law, fact or mixed fact and law, you can judicially review the decision to the Federal Court. However, while you wait to find out whether the Court will hear your case, you do not benefit from a statutory stay off removal. You would have to bring a motion for a stay should CBSA attempt to remove you before you obtain an answer from the Court.

For more information on the rules and procedures of the IAD, and what to expect at your hearing, click here.