In November 2016, Nini Johana Rodriguez Anzola and her husband ingested cocaine before trying to get on a flight to Spain. They were arrested at the Bogota airport
A Colombian drug trafficker found inadmissible to Canada for her crime wants immigration authorities here to consider extenuating circumstances that she feared using in her homeland to defend herself.
In November 2016, Nini Johana Rodriguez Anzola and her husband Nelson Botero Martinez ingested cocaine before trying to get on a flight to Spain. They were arrested at the Bogota airport in Colombia.
“They explained to their lawyer that they had been coerced into committing the crime by the Revolutionary Armed Forces of Colombia, known in Spanish as the Fuerzas Armadas Revolucionarias de Colombia (FARC). Their lawyer shared this information with the prosecuting authorities, but the couple were offered no protection,” Federal Court Justice Simon Fothergill said in a recent decision.
The judge dismissed Anzola’s application for a judicial review of the decision denying her status in Canada.
But Fothergill certified the question for appeal regarding whether Canadian immigration officials should be allowed to consider the coercion defence that Anzola didn’t employ in Colombia for fear of retribution.
“The certified question confirms there is an important matter of law that requires clarification. Ms. Anzola intends to pursue an appeal to the Federal Court of Appeal, with the hope that this critical issue — whether individuals not morally responsible for criminal conduct should be deemed inadmissible to Canada — will be carefully considered,” her lawyer, Prasanna Balasundaram, said Wednesday.
While Anzola was found inadmissible to Canada, her husband, Martinez, was not, though his case is now also under appeal. The couple are now waiting in limbo outside Toronto. Their children got refugee status here.
Anzola did not formally raise the defence of duress in Colombia, “although it was available to her as a matter of law,” Fothergill said in his Nov. 28 decision.
“Criminal proceedings in Colombia are public, and she was concerned that the FARC would monitor her trial and cause harm to herself or her family if she revealed any information about them.”
He threatened to harm the family and recruit the children into the FARC
Anzola pleaded guilty to cocaine trafficking on Sept. 18, 2017.
“She spent 13 months in jail, and then served 23 months under house arrest. She completed the remainder of her sentence on probation, which ended on Nov. 17, 2020,” said Fothergill’s decision.
She argued that Canadian immigration officials “breached her right to procedural fairness by excluding evidence that was relevant to her claim of duress,” said the decision.
Her husband worked as a taxi driver in Colombia.
“One of his clients was in charge of the FARC in Cundinamarca and Bogota. He demanded that (Martinez and Anzola) transport cocaine abroad,” said the decision.
“He threatened to harm the family and recruit the children into the FARC.”
The couple “initially ignored repeated telephone calls” from the leftist guerrilla group. “But in November 2016, (Anzola’s) niece returned from school crying. She said that three men had approached her and threatened to hurt her cousins if her uncle did not answer his telephone.”
Martinez and Anzola eventually gave in to FARC’s demands, said the decision.
Martinez, who also did time in Colombia for the November 2016 trafficking attempt, “continued to receive threatening telephone calls from the FARC. At the end of his house arrest in February 2021, the family moved to another location within Colombia.”
Martinez told the court he was physically assaulted in November 2021. “The following month, his children were approached by members of the FARC. On January 1, 2022, one of his sons and his girlfriend were seriously injured.”
He fled to Canada with his sons and niece on Jan. 11, 2022, and sought refugee protection.
Anzola arrived in Canada three months later and made a similar refugee claim.
The immigration official looking at Anzola’s case refused to consider her husband’s claim “concerning a wreath that was placed on the family’s home in Bogota, a letter purportedly from someone within the FARC, photographs, and a letter from a friend” of Martinez, said Fothergill’s decision.
“This evidence was intended to demonstrate that the FARC was still pursuing” the family as of last year.
Anzola testified that “the ongoing threats demonstrated the FARC’s persistence, reinforced her credibility, and supported her claim that she continued to be under duress throughout her criminal trial. The … decision to grant refugee status to her children and niece also buttressed the credibility of her claim.”
The Canadian immigration official who decided Anzola was inadmissible to this country said she did not “see the relevance of the information related to the wreath or the incidents that happened quite recently.”
The immigration official “understood her role to be limited to assessing the equivalency of the foreign and domestic offences as a matter of law. Assuming this was the right approach, then the evidence of the FARC’s tenacity and the credibility (of Anzola’s) assertion that she remained under duress throughout her criminal trial was irrelevant to the matter under consideration.”
Fothergill found that decision was consistent with past cases and reasonable, so excluding “evidence of the broader circumstances surrounding” Anzola’s criminal trial did not breach her right to procedural fairness.
For Fothergill, the key point is it wasn’t necessary to determine “whether there was sufficient evidence for an actual conviction in Canada. It is whether there are reasonable grounds to believe that (Anzola) would be convicted if the same act were committed in Canada.”
Anzola told the court “she is not challenging the fairness of her trial in Colombia. Nor is she seeking to re-litigate her criminal conviction. Rather, she maintains that the (immigration official who decided on her case) should have the capacity to consider extenuating circumstances, such as those that caused the defence of duress not to be practically available to her.”
Fothergill accepted that “Anzola’s case may be distinct from those that gave rise to the leading appellate jurisprudence on criminal inadmissibility. She should be given the opportunity to revisit this matter before the Federal Court of Appeal, in light of the particular circumstances that gave rise to the finding of inadmissibility in her case.”
If Anzola is successful, the appeal court can send her case back to the immigration division of the Immigration and Refugee Board for redetermination. If she is unsuccessful, she will remain inadmissible and face removal proceedings, said her lawyer.
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