- 1 - 0003-C0-00096-01-3-Apr-20-DR-SWAIJA-58(1)(a)-58(1)(b)

IMMIGRATION AND REFUGEE BOARD

- IMMIGRATION DIVISION -

Record of Decision of a Detention Review held under the

Immigration and Refugee Protection Act, concerning

ANGELO EDUARDO DURANGO RINCON

HEARING: PUBLIC

HELD AT: Teleconference

DATE: April 3, 2020

BEFORE: Jacqueline Swaisland - Member

APPEARANCES:

Angelo Eduardo Durango Rincon - Person Concerned

Ms. Rimer - Counsel
M. Mroue - Minister’s Counsel
Ms. Duckworth - Interpreter
 - 2 - 0003-C0-00096-01-3-Apr-20-DR-SWAIJA-58(1)(a)-58(1)(b)

DECISION

MEMBER: This is a decision in the detention review of Mr. Angelo Eduardo Durango
Rincon.

This is a public hearing.

Sir, you are not a Canadian citizen or a permanent resident of Canada.

You are a citizen of Columbia.

You have been detained since January 23, 2020 on the grounds that you are both a danger to the
public and unlikely to appear for your removal from Canada.

This is a 30 day review of the reasons for your detention.

Now I have considered the submissions, substantial submissions made by the Minister's counsel
as well as the substantial submissions made by your counsel, the testimony you have provided me as well
as the testimony of Mr. Brubacher the proposed bondsperson as well as all the substantial evidence I have
on file and the previous reasons of my colleagues and today I am prepared to order your release and I am
going to go ahead now and explain the reasons for my decision.

So the Minister is asserting that you are unlikely to appear for your removal and that you are a
danger to the public and I find that the Minister has established both grounds.

With regards to your being unlikely to appear for your removal I find that this has been
established for the following reasons.

First, you have a history of noncompliance with Immigration at least in three countries.

You have admitted that you have lived without status in the United States for approximately eight
years until you were deported.

While in the United States you used several aliases some of which were variations of your true
name but many of which were not.

You have also admitted that you were deported from Spain for also being out of status there.
 - 3 - 0003-C0-00096-01-3-Apr-20-DR-SWAIJA-58(1)(a)-58(1)(b)

You misrepresented your identity when you came to Canada and then you worked without
authorization while here.

I find that this demonstrates an unwillingness or an inability to comply with immigration laws of
not only this country but of two other countries as well.

You have also demonstrated noncompliance with the criminal laws of both the United States and
Canada which also demonstrates a willingness or an inability to obey the laws of Canada and finally you
have a stated fear of return to Columbia.

This is evidenced by filing of your pre-removal risk assessment and your repeated statements you
do not want to go back to Columbia because you are at risk there.

While you have made statements indicating that you will return home to Columbia if required to
do so and while I have given some weight to the fact that you have cooperated thus far with the Canada
Border Services Agency with regards to getting an emergency travel document given your extensive
history of noncompliance and your other statements to the contrary I still find that the Minister has
established that you are unlikely to appear for your removal from Canada.

With regards to the danger ground I also found that the Minister has established this on a balance
of probabilities.

Like my colleagues I find that you have recent convictions in both the United States and Canada
which fall under the purview of Regulation 246.

You were convicted for the possession of controlled substance for the purpose of selling that
substance.

You were also convicted of break and enters with intent and possession of property obtained by
crime in November of 2019 here in Canada.

MINISTER’S COUNSEL: Madam Member, would you mind slowing down a little because
I do have to take notes.

I apologize.

MEMBER: Yeah.

I can do that, not a problem.

 - 4 - 0003-C0-00096-01-3-Apr-20-DR-SWAIJA-58(1)(a)-58(1)(b)

MINISTER’S COUNSEL: Thank you.

MEMBER: I will also note that as found by my colleagues at your previous detention reviews
the evidence demonstrates that you were associated with a group of people during the commission of your
break and enters.

This is another factor that I find weighs in favor of a danger finding in this case.

As such I find that the Minister has established on a balance of probabilities that you are a danger
to the public.

That said I find that the danger that you pose to be at the low end of the spectrum.

I find as a result of the limited sentences that you received for your convictions, your stated
remorse under sworn testimony, the fact that there has been no violence involved in the commission of
any of the offenses you have been involved in and indeed the fact that you are currently being housed at
the Immigration Holding Centre in Toronto.

So I do find that these are very significant mitigating factors and as a result the danger that you
pose to the public is at the low end of the spectrum.

Having found that the Minister has established these two grounds I next must assess the factors
set out in section 248 of the Immigration and Refugee Protection Regulations.

And these are the factors I have to assess in order to ensure that your ongoing detention is
appropriate and constitutional in the circumstances.

I am going to go through each one of these factors now.

First with regards to the reason for your detention as I just stated I find that the Minister's interest
in detention is that you are unlikely to appear for your removal and that this is at the higher end of the
spectrum and that you are a danger to the public which I find to be at the lower end of the spectrum.

With regards to your length of detention at this point it has been a little bit more than two months
which I find also weighs in favor of release particularly given the current circumstances of your detention.

With respect to anticipated length of detention its agreed by all the parties that at this point it is
unknown because of the COVID-19 pandemic.
 - 5 - 0003-C0-00096-01-3-Apr-20-DR-SWAIJA-58(1)(a)-58(1)(b)

And it could be long given Canada is currently not enforcing removals and given that Columbia
is not permitting the repatriation of even it is own nationals and it is not clear how long that will go on for
given the current COVID-19 pandemic.

I find that this unknown duration and potentially extensive length of your future detention weighs
significantly in favor of your release.

With regards to the best interests of the children although you have indicated you have two minor
children they are residing in the United States with their primary caregiver.

And you have indicated you have not been in contact with them for some time and that they seem
to be upset with you and so I do not have evidence before me which demonstrates your detention is
impacting on your children and so I find this to be a neutral factor.

With regards to delay I do not find that there has been any delay by either party and I have also
looked at the conditions of your detention and this was something which substantial evidence is provided
and substantial testimony was provided on this issue.

Your counsel is asking that I take the impact of the COVID-19 pandemic into consideration when
assessing the section 248 factors and specifically how the pandemic could put you at risk.

Indeed you have provided significant documentation on the risks that persons in detention face
and testimony on your fears associated with your exposure to the virus in the detention centre.

The Minister does not contest that these factors ought to be taken into consideration in my
weighing of the section 248 factors but contests to the degree to the amount of weight they should be
given in the circumstances.

So I find that it is appropriate for me to take these risks into consideration.

I note that the Federal Court has made it clear in cases like Sahin that the section 248 factors are
not exhaustive.

I also note that they are meant to assist in ensuring that your rights pursuant to section 7 of the
Charter are not violated by your ongoing detention.

Having assessed the information before me I find that the risk that you face are not at the same
level of detainees in Correctional facilities particular given that there is such a limited number of the
detainees currently being housed at the Immigration Holding Centre, 15 as of today and given the
significant steps that are being taken to reduce the risks to individuals being detained at the holding centre
currently.
 - 6 - 0003-C0-00096-01-3-Apr-20-DR-SWAIJA-58(1)(a)-58(1)(b)

That said I still find that the risks that you face at the immigration centre weighs strongly favor of
your release.

As your testimony and the information received from the Minister still demonstrates that even
though the Immigration Holding Centre is taking significant precautions they are not perfect.

And you still have a high risk of exposure and significant restrictions on your ability to self
isolate in a manner that the documentary evidence seems to suggest that is required with this virus.

Given you have an underlying condition which the documentary evidence also demonstrates puts
you at a heightened risk of serious health complications if you do get the virus, I find that this factor
weighs significantly in favor of your release.

MINISTER’S COUNSEL: Madam Member, you are speaking very quickly and I am trying
to take everything down

MEMBER: Sorry.

I will slow down further.

MINISTER’S COUNSEL: Okay.

Thank you.

MEMBER: I do find that the conditions weigh very significantly in favor of your release sir.

Now I did consider whether release on your own recognizance is appropriate and I find that it is
not in the current circumstances given the risks that you pose.

But today we have an alternative to detention that has been presented to me and that is Mr.
Murray Brubacher as a bondsperson.

Now I will be the first to say that this alternative is not perfect but I find that it does virtually
eliminate the low level of danger that you pose in this case.

And it offsets the flight risk concerns as well particular when combined with the very strict terms
and conditions that I am also going to require of you to adhere to.

First and this is my assessment of Mr. Brubacher as a bondsperson I find that Mr. Brubacher
overall is a suitable bondsperson.

I find that he has come forward in good faith.

I find that he has experience having acted successfully in the past as an immigration bondsperson.
 - 7 - 0003-C0-00096-01-3-Apr-20-DR-SWAIJA-58(1)(a)-58(1)(b)

Mr. Brubacher understands his responsibilities and by the conclusion of the hearing he had
became well versed of your criminal and immigration history and was still willing to act on your behalf.

I also find that Mr. Brubacher lives by a strict moral code and has high expectations for those
around him and is not likely to hesitate enforcing the strict terms and conditions I will be imposing on
you.

With regards to the financial amount being put forward which is a 500 dollar cash bond I find that
this is significant in the circumstances to Mr. Brubacher.

Mr. Brubacher has indicated that he has no savings and has a limited income of approximately
50000 dollars a year which he uses to support a family of seven.

It is also noted that his income may be significantly affected by the significant economic impacts
of the COVID-19 virus.

Although he has substantial equity in his farm I still find that this amount of money is meaningful
to him in the circumstances and will help to ensure that he take steps to make sure that you comply with
your terms and conditions.

With regards to the supervision being proposed Mr. Brubacher is willing to have you reside on
his farm with him in a residence about 150 m from his home.

He indicated that he would be in regular contact with you each day making sure to check in often.

He also indicated that he would not hesitate to contact authorities if you are not complying with
any of the terms and conditions.

I find this supervision sufficient especially since I will be putting you under house arrest Mr.
Durango Rincon meaning that you will not be allowed to leave Mr. Brubacher’s farm without the
permission of the Canada Border Services Agency.

Now with regards to the relationship that you share with Mr. Brubacher it is not contested that at
this stage it is very limited.

You have only spoken to him ample of times and he has never met you in person.

That said you have testified under oath that you feel that you owe him your compliance and your
loyalty because he is the only person that is stepping forward to help you during this difficult time.

It is also clear that you are very fearful of returning to the detention centre and of getting sick
with the virus more generally, especially given your underlying condition which makes you more
susceptible to serious complications.

I find these factors will also significantly motivate you to comply with the terms and conditions I
am imposing on you because failure to do so could result in your re-detention.
 - 8 - 0003-C0-00096-01-3-Apr-20-DR-SWAIJA-58(1)(a)-58(1)(b)

I also find that these fears render you less mobile than it otherwise would be.

Indeed one of the benefits of the arm’s length relationship that Mr. Brubacher has with you is that
he will not hesitate as I have indicated previously to call the authorities and turn you in.

Given all these circumstances I find that the relationship while limited is sufficient in the
circumstances.

Now as I indicated I will be imposing very strict terms and conditions on you Mr. Durango
Rincon and I am going to go through those terms and conditions with you now.

It is really important that you understand all of the conditions I am about to provide to you
because a failure to adhere to any one of them could result in your re-detention.

PERSON CONCERNED: Can we use the interpreter for those conditions?

MEMBER: I think that is a great idea.

So Madam Interpreter if you can please interpret the following to Mr. Durango Rincon.

INTERPRETER: And I would like to repeat what the lawyer said is that you are speaking
incredibly rapidly and that is not always easy when interpretation is imposed.

MEMBER: I will make sure to speak slower for your interpretation Madam Interpreter.

INTERPRETER: Thank you

MEMBER: So the first condition is that Murray Brubacher pay a deposit in the sum of 500
dollars.

INTERPRETER: I am sorry?

I am really confused with his name, is it Rubaker Bubacher, how do you spell it Madam
Member?

MEMBER: I actually do not have the proper spelling yet.

MINISTER’S COUNSEL: It is B-R-U-B-A-C-H-E-R Brubacher

INTERPRETER: Okay.

It sounds differently when each one of you says it, it sounded like Blue Baker like the jam person.

Okay, Brubacher.
 - 9 - 0003-C0-00096-01-3-Apr-20-DR-SWAIJA-58(1)(a)-58(1)(b)

MEMBER: The second condition is that you present yourself at the date, time and place that
a Canada Border Services Agency officer.

INTERPRETER: You present yourself where?

MEMBER: At the date, time and place that a Canada Border Services Agency officer.

INTERPRETER: At the date, time and place that the Canada Border Services Agency
officer does what?

MEMBER: There is a significantly longer portion of the sentence so that is where I thought I
would break to allow you to interpret.

INTERPRETER: I know but it is really hard when people break before the verb, verb is
important

MEMBER: Or the Immigration Division requires you to appear to comply with any
obligation imposed on you under the Immigration and Refugee Protection Act including removal if
necessary.

Sir, you provide the Canada Border Services Agency prior to your release with your residential
address and advise the Canada Border Services Agency in writing of any change in address prior to the
change being made.

You report to an officer by phone of the Canada Border Services Agency on or before a date to be
determined and weekly thereafter.

That you reside at all times on the property of Murray Brubacher, that you fully cooperate with
the Canada Border Services Agency with respect to obtaining travel documents, that you not engage in
any activity subsequent to release which results in a conviction under any Act of Parliament.

INTERPRETER: In any act which is what sorry?

MEMBER: Any act which results in a conviction under any Act of Parliament.

You not work or study without authorization in accordance with the Immigration and Refugee
Protection Act.

INTERPRETER: He must not work or study without the permission of?

MEMBER: Without authorization in accordance with the Immigration and Refugee

Protection Act.

That you not use or possess any controlled substance as defined by the Controlled Drugs and
Substances Act unless prescribed by a physician.
 - 10 - 0003-C0-00096-01-3-Apr-20-DR-SWAIJA-58(1)(a)-58(1)(b)

That you always be present on the property at the residential address provided to the Canada
Border Services Agency except where specifically authorized in writing by the Canada Border Services
Agency.

To be clear Mr. Durango Rincon that is me stating that is house arrest essentially.

You cannot leave that property without permission of the Canada Border Services Agency.

The next condition is that you not associate with any of the individuals you were previously c
with or anybody associated with an organized criminal group and that you report any new charges to the
Canada Border Services Agency within 72 hours of the charges being laid.

So sir, those are the terms and conditions that you will need to adhere to.

Do you understand?

PERSON CONCERNED: Yes.

MINISTER’S COUNSEL: When I balance the supervision in Mr. Brubacher along with
these terms and conditions I find that the alternative to detention before me virtually eliminates the danger
that you pose and offsets the flight risk.

INTERPRETER: I did not hear.

When you balance these conditions with the supervision of Mr. Brubacher.

MEMBER: That is what I said, if you want to interpret that I can do the rest afterwards.

I find that the alternative to detention before me virtually eliminates the danger that you pose and
offsets the flight risk.

And when I weigh this alternative along with the other factors including the anticipated length of
your detention and the conditions of your detention I find that they weigh in favor of your release.

I will note that you have the ability to apply to amend these terms and conditions in the future and
that will be assessed by myself or another member of the Division.

So this concludes your hearing today sir.

If for some reason you are not released however I am scheduling your next detention review for
April 29, 2020 at 9 am.

Thank you.

This concludes today's hearing.

 - 11 - 0003-C0-00096-01-3-Apr-20-DR-SWAIJA-58(1)(a)-58(1)(b)

The order will be sent to the parties.

COUNSEL: Thank you.

MEMBER: Thank you.

----------REVIEW CONCLUDED---------

I HEREBY DECLARE THAT THIS IS A TRUE

TRANSCRIPT OF THE RECORDING AND THAT I HAVE
SWORN THE OATH OF SECRECY

_____________________________________
Valerie Pienne – Transcriptionist
For DigitScribe Inc.
Security # 95320455-0000759120

April 14, 2020