Canadian Crimmigration: How Ill-Perceived Presumptions and Threats Shape Migrant Detention by James Gacek

Much like our Western counterparts, Canada has entered into a new era where the norm is to unfortunately treat many immigrants and refugees as “interlopers, illegals, threats to security, or criminals” (Gros & van Groll, 2015, p. 13). Referred to migration experts as the criminalization of immigration—or ‘crimmigration’—this new norm blurs the borders between immigration law, migration management, criminal law and crime control. This ongoing process is seen by some scholars as quite sinister, as crimmigration logics are highly centred upon ill-perceived precautionary philosophies and illusory presumptions about migrants. In effect, such logics are becoming more normative, infiltrating the politics of cities and hindering the lives of immigrants and refugees attempting to settle in Canada (c.f. Molnar & Silverman, 2016).

Expanding carceral regimes and migration controlling measures and practices have led to the rise in immigration detention, and crimmigration logics expand the discretionary powers of administrative tribunals regulating migration governance. Every year, thousands of migrants who are not serving a criminal sentence are, in effect, imprisoned. While some migrants are detained because of past criminality, the majority of the immigration detainee group are not. Some of these people are extremely vulnerable with varying immigration statuses, such as asylum-seekers, minors, pregnant women, victims of trauma or torture, and persons with physical and/or mental disabilities (c.f. Gros & van Groll, 2015).

However, nowhere is the crimmigration reality more stark than in the area of immigration detention. Migrants can be detained for several reasons, such as lack of documents, and unable to confirm their identity; ‘irregular arrival’ to the country via smugglers; labelled a ‘flight risk’, or as a ‘danger’ to the Canadian public (Kanji, 2016). Canada’s Immigration and Refugee Protection Act (S.C. 2001, c.27), federal legislation which deals with the protection of immigrants and refugees, is anything but clear and definitive for both immigrant and refugee admissibility into the country and the protection of migrants and refugees while held within Canada’s immigration detention centres (Ross, 2014). Because immigration law is a civil domain, rights protections are not a predominant concern for immigrants as we see afforded to criminal suspects; simply put, there are no readings of one’s rights, no direct or automatic access to legal counsel (or even a telephone in some cases), and no prompt meetings to explain how to apply for release (Silverman & Nethery, 2015, cited in Molnar & Silverman, 2016). 

Precautionary and presumptive logics have influenced the IRPA to such an extent that the legislation, like the Charter, could be argued as becoming another legitimate legal technology of surveillance which makes visible and governs immigrants and refugees (c.f. Jochelson et al., 2014; Jochelson & Doerksen, 2017). Indeed, migrants attempting to make Canada their new home have seen an increased difficulty in the post-9/11 era, and these discretionary administrative practices (based upon fear and suspicion of the Other) clearly erode civil liberties and jeopardize the rights of those immigrants detained. 

Of course, Canada is entitled to detain (at least briefly) persons who are reasonably suspected of posing a risk to the country’s safety and security. However, there must be purpose in the detention of migrants, based upon specific factual and empirical context. Too often has been the case in the West that migrant detention is somehow a “national prerogative that can be automatically exercised” without any real regard for fairness and accountability (Gros & van Groll, 2015, p. 1). 

Fortunately, the detention of immigrants and their potential subjection to deportation has been problematized through a plethora of legal challenges, and there have been exemplary lawyers and civil liberties’ associations taking up the call to resist ill-perceived, precautionary philosophies driving crimmigration. However, resisting is no easy task. Legal activism and reform must progress onward to combat the presumptive and precautionary logics at play within the IRPA and Canada’s immigration policies. More than ever, the procedural wings of state intervention into the lives of immigrants and refugees warrants further investigation. The bureaucratization of human rights unfortunately arises out of a philosophy which mobilizes fear-based and surveillant logics. If not reversed, the wrongfulness of routine migrant detention will be much more than an issue of illegality; crimmigration will diminish the ability of the state to act as a force of good, a good which reflects the best about us, for the foreseeable future. 

References:

Gros, H. & van Groll, P. (2015). “We Have No Rights”: Arbitrary imprisonment and cruel treatment of migrants with mental health issues in Canada. International Human Rights Program: University of Toronto, Faculty of Law.

Jochelson, R. & Doerksen, M. (2017). “The Supreme Court Presents: The Surveillant Charter and the Judicial Creation of Police Powers in Canada.” Pp. 75-97 In National Security, Surveillance, and Terror: Canadian and Australian Sovereignty Compared, edited by R. Lippert, I. Warren, K. Walby, and D. Palmer. London: Palgrave-MacMillan Press. 

Jochelson, R., Kramar, K., & Doerksen, M. (2014). The Disappearance of Criminal Law: Police Powers and the Supreme Court. Winnipeg and Halifax: Fernwood Publishing. 

Kanji, A. “These borders kill: Canada’s lethal immigration system.” Rabble.ca: March 30. Available at: http://rabble.ca/news/2016/03/these-borders-kill-canadas-lethal-immigration-system. 

Molnar, P. & Silverman, S. J. (2016). “Cracks Where the Light Gets in: Recent Legal Breakthroughs in Detention and Crimmigration in Canada.” MetroPolitics.eu: December 6^th. Available at:  http://www.metropolitiques.eu/Cracks-Where-the-Light-Gets-in.html.

Ross, O. (2014). “In Canada’s immigration law, anyone can be a terrorist.” The Star: April 27. 

Legislation cited:

 

Immigration and Refugee Protection Act (S.C. 2001, c.27). 

© 2017 James Gacek

James Gacek is a PhD candidate at the University of Edinburgh, Edinburgh Law School. While his research interests are many, his work can be generally categorized within the realms of socio-spatiality, socio-legality and socio-sexuality. He has begun to publish in the areas of incarceration, genocide carcerality, film and media studies, cultural and visual criminology, exploitative relationships between human and animals, and emerging Canadian state surveillance. James is an American Sociological Association Student paper award recipient (2014).

A ‘Catch-All’ Provision with Extreme Overreactions? The Legalistic Snares within Section 34 of Canada’s Immigration and Refugee Protection Act by James Gacek

No sooner was the United States presidential election called in favour of Donald J. Trump had the infamous ‘Move-to-Canada’ memes, tweets and photos begin circulating social media (c.f. Austen & Levin, 2016). Worries and concerns spread in earnest shortly after President-Elect Trump’s win, with the Internet working itself into a fury and following with a barrage of opinions about leaving ‘The Land of the Free’ and heading north past the 49^th parallel. Various media sources had even been reporting that the website of Canada’s immigration department had crashed, overloaded by Americans looking for a new country to call home (Austen & Levin, 2016).

  

Since the election, a desire to flee the United States and its election decision has routinely been expressed. Yet on the other side of the border, Canadians, while having worries and concerns of their own about the future of Canada-U.S. relations, also retained whiffs of pride and smugness. ‘At least Trump isn’t our leader,’ ‘Canada is a diverse country,’ ‘at least Canada accepts all people from all backgrounds’ were just a few of the thoughts floating in the minds of Canadians, of whom were nervously laughing to each other while they glued themselves to each minute of the presidential election coverage. We pride ourselves on the belief that, in Canada, we would never close our borders to immigrants and refugees, and that such authoritarian and neo-fascist notions of migrants and refugees heard from the American presidential campaign would never be accepted north of the border. Canadian values of multiculturalism and diversity, we believe, trump vitriolic hate speech (and in effect, would trump Trump-like characters hoping to lead our country one day).

However, in terms of Canadian immigration laws, it is perhaps the case that Canadians reconsider such beliefs. While examining Canada’s Immigration and Refugee Protection Act (S.C. 2001, c.27), federal legislation which deals with the protection of immigrants and refugees, our main immigration law is anything but clear and definitive for immigrant and refugee admissibility (Ross, 2014). Arguably, one of the most contentious provisions in the IRPA is section 34. In force since 2001, section 34 deals with the inadmissibility of permanent residents or foreign nationals into Canada on the reasonable grounds of security issues. It reads as follows:

34(1) A permanent resident or a foreign national is inadmissible on security grounds for

(a)   engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests;

(b)  engaging in or instigating the subversion by force of any government;

(b.1) engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada;

(c) engaging in terrorism;

(d) being a danger to the security of Canada;

(e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or

(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b), (b.1) or (c). (S.C. 2001, c.27)

Notwithstanding the broad (and arguably, vague) interpretation of ‘danger’ and ‘terrorism’ (of which the latter has yet to reach a universal definition), of interest to many Canadian immigration and legal-aid lawyers is the last statute, section 34 (1)(f). This statute is seen by many legal professionals and academics as “an unjust statute being manipulated by high-handed federal bureaucrats to punish law-abiding people who ought to qualify for refuge or residence in Canada” (Ross, 2014). Indeed, people attempting to make Canada their new home have seen an increased difficulty in the post-9/11 era. Such immigrants or refugees who perhaps at one time in their life, for instance, informally engaged in political acts, gave a one-time donation to opposition groups in their countries of origin, or who acted as “informal contact[s] for foreign journalists who were seeking interviews with anti-government guerrillas,” face the threat of deportation on the grounds that they pose as security risk to the people of Canada (Ross, 2014).

Under section 34, it makes no difference to Canadian immigration officials whether the person seeking refuge or residence has engaged in violence or subversion themselves. The broad terminology used within the section itself is enough for immigration officials to reason that the applicant once supported an organization at some point in the past, to which the organization either “possibly did engage in subversive activities[,] or that at some time in the future[,] [the organization] possibly will” (Ross, 2014).

Indeed, Canadian immigration law is consistently faced with determining how to define such acts as ‘subversive’ or ‘terrorist,’ as unfortunately, section 34 could easily apply to anyone in our conflict-ridden world. Therefore, while some applicants have never directly engaged in political violence themselves, the broad language of the section continues to widen the scope of inadmissibility, of which increases the quantity of people facing the threat of deportation from Canada, and the outright rejection of foreign nationals’ applications for residence or refuge.

Furthermore, as the Canadian Immigration Blog (2015) indicates, several court judgements have succinctly concluded that the definition of membership within section 34 (1)(f) does not require direct complicity with the wrongful conduct of the organization itself, nor is it a requirement for the member to direct comply with the actual participation of wrongful behaviour and conduct in the future (c.f. Ezokola v. Canada, 2013; Joseph v. Canada, 2013; Posteh v. Canada, 2005). In effect, the broad interpretation of membership parallels the interpretation of ‘an act of subversion,’ ‘an act of violence,’ ‘terrorism’ and ‘Canada’s interests,’ all of which are open to the Canadian government’s intentions to further securitize the Canadian population for its own ‘safety.’ However, such increases in security have been justified on the basis of an “indeterminate danger,” in which case one could argue that such securitizing discourses have become contingent upon suspicion rather than reasonable grounds (Bell, 2006, p. 149; see also Walby et al., 2016).

In short, Canadians should reconsider their whiffs of pride as their American counterparts’ transition into a Trump administration. It may be the case that Canadian ‘values’ (however we appear to define them) differ from the Americans, and it is my hope that Canadian culture will continue to be welcoming and inclusive for people from all walks of life. However, section 34 of the IRPA, as it currently stands, is a strong reminder that Canadian immigration law must reflect such changes for inclusivity, rather than broadening the scope of deportation and securitization from ill-perceived threats. Bridges, not walls, must be built so that we may reach out and support those in need in these desperate and hostile times. As Bauman contends, “the sole way out of the present discomforts and future woes leads through rejecting the treacherous temptations of separation” (2016, p. 18). Indeed, let us work together in solidarity towards an immigration law which rejects such treachery, and combat the political speech of separation that is based upon extant suspicions, animosities and overarching indifference towards an-Other.

References:

Austen, I. & Levin, D. (2016). “As Americans Look North to Flee Donald Trump, Canada Peers Back in Worry.” The New York Times: November 9.

Bauman, Z. (2016). Strangers at Our Door. Cambridge: Polity Press.

Bell, C. (2006). Surveillance strategies and populations of risk: biopolitical governance in Canada’s National Security Policy. Security Dialogue 37(2): 147-165.

Canadian Immigration Blog (2015). ‘Section 34(1)(f) of the IRPA – membership does not require complicity.’ Belissimo Law Group: April 13.

Ross, O. (2014). “In Canada’s immigration law, anyone can be a terrorist.” The Star: April 27.

Walby, K., Lippert, R., & Gacek, J. (2016). “Securitizing ‘National Interests’: Canadian Federal Government Departments, Corporate Security Creep, and Security Regimes.” In National Security, Surveillance, and Terror: Canada and Australia in Comparative Perspective. R. Lippert, K. Walby, I. Warren, and D. Palmer (eds.). London: Palgrave. Pp. 155-176. 

Legislation cited:

Ezokola v. Canada (M.C.I.), 2013 SCC 40.

Immigration and Refugee Protection Act (S.C. 2001, c.27).

Joseph v. Canada (M.C.I.), 2013 FC 1101.

Poshteh v. Canada (M.C.I.), 2005 FCA 85.

© 2016 James Gacek

James Gacek is a PhD candidate at the University of Edinburgh, Edinburgh Law School. While his research interests are many, his work can be generally categorized within the realms of socio-spatiality, socio-legality and socio-sexuality. He has begun to publish in the areas of incarceration, genocide carcerality, film and media studies, cultural and visual criminology, exploitative relationships between human and animals, and emerging Canadian state surveillance. James is an American Sociological Association Student paper award recipient (2014).

This blog post is cross-posted at Robson Crim.

The Criminalization of Immigration in the United States by Drs. Walter Ewing, Daniel Martinez and Ruben Rumbaut

The American Immigration Council recently published a report entitled: "The Criminalization of Immigration in the United States" written by Drs. Walter Ewing, Daniel Martinez and Ruben Rumbaut. 

The report can be found here: https://www.academia.edu/13822850/The_Criminalization_of_Immigration_in_the_United_States

The following is an excerpt from the Executive Summary:

For more than a century, innumerable studies have confirmed two simple yet powerful truths about the relationship between immigration and crime: immigrants are less likely to commit serious crimes or be behind bars than the native-born, and high rates of immigration are associated with lower rates of violent crime and property crime. This holds true for both legal immigrants and the unauthorized, regardless of their country of origin or level of education. In other words, the overwhelming majority of immigrants are not “criminals” by any commonly accepted definition of the term. For this reason, harsh immigration policies are not effective in fighting crime.

Unfortunately, immigration policy is frequently shaped more by fear and stereotype than by empirical evidence. As a result, immigrants have the stigma of “criminality” ascribed to them by an ever-evolving assortment of laws and immigration-enforcement mechanisms. Put differently, immigrants are being defined more and more as threats. Whole new classes of “felonies” have been created which apply only to immigrants, deportation has become a punishment for even minor offenses, and policies aimed at trying to end unauthorized immigration have been made more punitive rather than more rational and practical. In short, immigrants themselves are being criminalized.

Duress and The Material Support For Terrorism Exclusion: When Moral Involuntariness Is Not Enough

I. Introduction  

Terrorist organizations are not known for tackling issues with a soft touch. This includes their treatment of those who refuse to be conscripted into their organizations. Such resisters often face persecution or death for their defiance. Through forced conscription they are compelled to provide assistance knowing that it will aid the organization. Some may manage to escape and seek refugee status in another country. 

This poses a critical question - should such individuals who are forced to provide assistance to terrorist organizations be excluded from obtaining refugee status? The question is particularly relevant under United States refugee law and this post will tackle it by examining a very recent United States Federal Court of Appeal decision from the 3^rd Circuit based in Philadelphia. 

II. Sesay v Attorney General of the United States [1]

a. Facts

Sesay is a citizen of the west African state of Sierra Leone. In the late 1990s and early 2000s, the country was gripped in a civil war. The Revolutionary United Front (RUF) was dedicated to overthrowing the government through the use of force and managed to occupy the capital of Freetown. In 2001, three members of the RUF entered Sesay’s family home in Freetown. They sought to conscript him. Although Sesay refused, he was nevertheless forcibly taken. 

Over the course of a month, Sesay consistently refused to join; he was beaten for his resistance. After a month, the RUF attempted to train him to use firearms but he once again refused. The RUF instead decided to force him to assist them by transporting and carrying weapons. He did so under compulsion and under the supervision of armed guards. On one occasion, Sesay was able to escape while the rebels were being threatened by an aerial attack. He fled to Guinea and subsequently to Gambia before escaping to the United States. 

b. The Immigration Judge's Decision and the Administrative Appeal

The Immigration Judge (IJ) found Sesay to be credible and concluded that he suffered past persecution as a result of his membership in a particular social group – specifically, individuals who vocally opposed forced conscription into the RUF. Where an individual has suffered past persecution, there is a rebuttable presumption that s/he has a well-founded fear of future persecution. The IJ concluded that the presumption in this case could be rebutted since, at the time the decision was being made, the RUF had been disbanded and reconciliation efforts in Sierra Leone had since been successful.

In the alternative (and this is where it becomes relevant for the present discussion), the IJ also concluded that Sesay provided material support to the RUF, and determined that it was a terrorist organization. This was based on the fact that Sesay carried food, water, weapons, and ammunition for the RUF. The IJ held that there was no exception to this exclusion even where the support was based on duress.

Sesay appealed this decision to the Board of Immigration Appeals (BIA). The BIA affirmed the IJ’s decision.    

c. The 3rd Circuit's Decision

The 3rd Circuit affirmed the decisions of the BIA and IJ. It concluded, based on previous 3^rd Circuit jurisprudence, and those of sister federal circuit courts of appeals (as persuasive authority) that the material support exclusion to obtaining refugee status applied in this case. Sesay had knowledge (a subjective standard) that his acts would provide material support or that he should have reasonably known (an objective standard) that his acts would provide material support for terrorist activities. The fact that he did not desire that the RUF succeed was irrelevant to this assessment. 

The Court accepted that Sesay provided this material support under duress. However, it was deciding for the first time (within in its jurisdiction) whether the fact of duress provided a sufficient exception to the material support exclusion. It concluded, based on its statutory analysis, that the presence of duress did not provide an exception to the material support exclusion. 

i. Text and Context

The Court first began with a textual analysis of the provisions in question. The relevant portions of the Immigration and Nationality Act (INA) render an individual inadmissible if they engage in terrorist activity 

in an individual capacity or as a member of an organization— to commit an act that the actor knows, or reasonably should know, affords material support [to a terrorist organization]... .[2] 

This provision is silent on whether duress provides an exception to the material support exclusion. However, the Sesay Court identified that there is an exception in the INA to the material support exclusion where "the actor can demonstrate by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization."[3] Drawing from a 9th Circuit discussion on this very issue, the Sesay Court concluded that had Congress intended that compelled conduct should be an exception, it would have certainly included this in the INA. Furthermore, in other provisions of the INA, Congress has included “involuntariness” as criteria for exempting individuals for another exclusion.[4] The Court rationalized that because the exemption for compelled conduct was specifically employed elsewhere in the INA, Congress clearly intended not to insert an exception for compulsion in connection with the material support exclusion.[5]

ii. Executive Branch Waivers 

Through legislation, United States federal law permits the Secretaries of State and Homeland Security to confer certain waivers to those who provided material support to certain terrorist organizations. However, the ability to grant this waiver is within the purview of the executive branch and specific cabinet secretaries. 

In conclusion, the Court determined that based on statute, it was up to the executive to grant waivers and the Court must not intervene in such determinations on matters of national security.

iii.  Circuit Court Consensus 

The Third Circuit noted that there was some degree of consensus amongst sister circuits on the issue of a duress exception - with one exception. In Ay v Holder, the 2^nd Circuit determined that the statutory provisions in question (and referred to above) were silent on the issue of duress being an exception to the terrorism bar. The court stated that the "BIA's decision provides no analysis of the statutory question; rather, it appears to presume there is no duress exception."[6] As such, for the Ay Court it was possible for the BIA to interpret whether the provision in question excluded those who provided material support to terrorists by reason of compulsion. It remanded the case back to the BIA to “address the [statutory question] in the first instance in light of its own expertise.” As part of its own analysis, the 2nd Circuit neglected to address that Congress included an explicit exception (noted above) to the material support bar and consequently intended to exclude any exception for duress.

III. What is Problematic About All This?  

a. Overbreadth

First, let me start by stating that based on the text of the impugned provision and its relationship to other provisions, it was reasonable if not correct for the 3^rd Circuit to hold that the material support exclusion does not include a duress exception. 

The problem is not the Court's interpretation but the provision itself. The breadth of the provision is indeed breathtaking. It is arguably intended to result in such harsh consequences. Congress likely knew exactly what it was doing post-9/11 and this comprehensive exclusion is reflective of the siege mentality that took root after September 11, 2001. 

The comprehensive and harsh nature of the anti-terrorist provisions in the INA has been noted in several quarters. For instance, James C. Hathaway and Michelle Foster assert that "states have adopted definitions of terrorist acts in the context of refugee and related immigration law that are startlingly broad, a concern perhaps most strikingly exemplified by legislation adopted in the United States."[7]

An example will help demonstrate Hathaway's and Foster's point. The notion of "terrorist activity" in the INA does not account for the political aims or the targets of certain acts. Almost any violent act can get wrapped into the definition of terrorist activity regardless of context. In Re SK, an asylum seeker provided money and some supplies to the Chin National Front, an organization which employed armed resistance against the repressive military junta in Myanmar. Given the scope of the legislation, SK was barred from obtaining refugee status. Juan Osuna, the current head of the BIA, writing then as a Vice-Chair in concurrence of SK's exclusion, criticized the breadth of the exclusion for terrorist activities. He stated: 

[T]he statutory language is breathtaking in its scope. Any group that has used a weapon for any purpose other than for personal monetary gain can, under this statute, be labeled a terrorist organization. This includes organizations that the United States Government has not thought of as terrorist organizations because their activities coincide with our foreign policy objectives.[8] 

With respect to the applicant in SK and the application of the material support bar, Osuna asserted:

In sum, what we have in this case is an individual who provided a relatively small amount of support to an organization that opposes one of the most repressive governments in the world, a government that is not recognized by the United States as legitimate and that has engaged in a brutal campaign against ethnic minorities. It is clear that [SK] poses no danger whatsoever to the national security of the United States. Indeed, by supporting the CNF in its resistance to the Burmese junta, it is arguable that the [SK] actually acted in a manner consistent with United States foreign policy. And yet we cannot ignore the clear language that Congress chose in the material support provisions; the statute that we are required to apply mandates that we find [SK] ineligible for asylum for having provided material support to a terrorist organization.[9] 

These passages provide the context for understanding why duress was left out as an exception to the material support bar for refugee status. The legislation was reactive and in large measure comprehensive in its seeming objectives - to exclude anyone who adopted or supported certain types of violence regardless of context or their reasons, however legitimate.  

b. Discourages Legitimate Resistance

The consequences can be potentially inhumane. A person who was compelled to commit unlawful acts will be excluded unless the executive branch elects to grant a waiver. In this case, we have an individual who resisted not only once but several times to actively join the organization and to use a weapon on its behalf. That he agreed to transport weapons, ammunition, food and water under the supervision of a guard speaks to the coerced nature of this assistance. He also left as soon as practicable. 

The decision not to include a duress exception sends a particular message to certain asylum seekers. It tells those who resist recruitment into terrorist (or similar) organizations, which commit international crimes, that unless they resist to the point of being killed, they will be refused refugee status if they manage to escape. As the late international jurist and legal scholar Antonio Cassese asserted in a dissenting opinion in the Erdemovic appeal before the International Criminal Tribunal for the former Yugoslavia, "[l]aw is based on what society can reasonably expect of its members. It should not set intractable standards of behaviour which require mankind to perform acts of martyrdom, and brand as criminal any behaviour falling below those standards."[10] 

c. Inconsistent With The Human Rights Purpose of the Refugee Convention and Protocol

This lack of an exception is inconsistent with the overall human rights and humanitarian purpose of the 1951 Refugee Convention and/or the 1967 Protocol amending the Convention. Furthermore, the lack of an exception may be more punitive than a regular prison sentence for having committed the same crime. The consequences in these circumstances (refusal of refugee status) involve deportation and possibly persecution.

Endnotes

1. Sesay v Attorney General of the United States, --- F (3d) ----, 2015 WL 3372539 (3rd Cir 2015), online: <http://www2.ca3.uscourts.gov/opinarch/142996p.pdf>.

2. 8 USC § 1182(a)(3)(B)(iv)(VI), online: <https://www.law.cornell.edu/uscode/text/8/1182>. 

3. 8 USC § 1182(a)(3)(B)(iv)(VI)(dd).

4. 8 USC § 1182(a)(3)(D). 

5. The reference to involuntariness as being synonymous to duress or compulsion may not be accurate. Involuntary conduct under traditional criminal law purposes serves as a complete defence to a crime. In the case of duress, such compulsion normally does not indicate the lack of voluntariness or for that matter the necessary mental state for the offence. However, it has been recognized (under Canadian law) that where there is the presence of duress, this may indicate a moral involuntariness. See R v Ryan, 2013 SCC 3 at para 23, [2013] 1 SCR 14.  

6. Ay v Holder, 743 F (3d) 317 at 320, online: <http://www.ca2.uscourts.gov/decisions/isysquery/947fad22-e8ab-4464-9001-5ee703743be4/28/doc/11-2102_opn.pdf>.   

7. James C Hathaway & Michelle Foster, The Law of Refugee Status, 2nd ed (Cambridge: Cambridge University Press, 2014) at 560. See also Geoff Gilbert, "Running Scared Since 9/11: Refugees, UNHCR and the Purposive Approach to Treaty Interpretation" in James C Simeon, ed, Critical Issues in International Refugee Law (New York: Cambridge University Press, 2010). In a forthcoming article in the Canadian Journal of Human Rights, I criticize this and similar legislation in other countries for implementing legislative provisions which were unnecessary and certainly overly broad.

8. In Re SK, 23 I&N Dec 936 at 948 (BIA 2006), online: <http://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3534.pdf>.

9. Ibid at 950. 

10. Prosecutor v Erdemovic (Pilica Farm Case), IT-96-22, Separate and Dissenting Opinion of Judge Cassese (7 October 1997) at para 47, online: <http://www.icty.org/x/cases/erdemovic/acjug/en/erd-adojcas971007e.pdf>.