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| Candice Cashman holds a picture of her children, drawn by her friend
Jacinto Garcia Garcia, who is currently at the Niagara Detention Centre
under a removal order.
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Wearing the bright orange jumpsuit of
a prisoner, Jacinto Garcia Garcia walked into the small room at the
Niagara Detention Centre and picked up the phone.
"I'm in limbo here," he said, as he looked out through the inch-thick
Plexiglas and heavy steel bars that separate prisoners from visitors.
Garcia has been in jail for years while authorities in three countries decide what to do with him.
He was convicted of the sexual assault, assault and criminal
harassment of his now ex-wife. But five years later, he's still there.
Garcia said he initially left Cuba Jan. 2, 2007, hoping for a new
life away from the persecution he feared in the communist country. He
said he was one of dozens of others who crowded onto a small ship to
escape the country.
He eventually made his way to the U.S., he said, where he was granted refugee status.
Garcia remained there for a year and a half, until he crossed the border into Fort Erie for a vacation to visit friends.
In April 2009, he married Dawn Colson.
Less than a month later, Garcia was arrested and later convicted of
assaulting her, and locked up in the Niagara Detention Centre.
Garcia was originally due to be released Feb. 9, 2011. Now, more than
three years later the 41-year-old is still being held in maximum
security at the Thorold prison.
He's been in custody so long, he has also served the three years of post-release parole while still behind bars.
On March 8, 2011 after he had served his initial sentence, Garcia
said was loaded on a bus and taken into the U.S. — deported by Canadian
immigration authorities.
But when he arrived in the U.S., Garcia said he was promptly put in
an American jail where he remained for three months before being shipped
back to Canada.
He's been at the Niagara Detention Centre ever since.
"I was put here forever," said Garcia, who said he learned to speak English during his incarceration.
"I want to get on with my life."
Canada Border Services Agency spokeswoman Nancy Thomson confirmed "Garcia is in detention and is under a removal order."
She said the Immigration and Refugee Protection Act allows border
authorities to detain people when the officer has reasonable grounds to
believe a person cannot be admitted into Canada, although their
decisions are assessed regularly by the Immigration and Refugee Board.
Garcia's next monthly detention review hearing is slated for Wednesday.
While several of his supporters hope he might finally be free, Garcia wasn't overly optimistic.
He said he feels "like a volleyball," lobbed from one government agency to another as he strives to regain his freedom.
Charles Hawkins, a spokesman from the Immigration and Refugee Board,
said it's rare for someone to be left in prison for years as a result of
immigration detention. He said there are only about eight people in all
of Canada who have been detained for more than three years under those
circumstances.
"Immigration detention is not meant to be punitive. And it cannot be indefinite," Hawkins said.
He said he knows of other people who have been held as a result of an immigration detention for as long as seven years.
During Garcia's Jan. 17 detention review hearing, Immigration and
Refugee Board presiding member Ken Thomson discussed the issues that
have kept Garcia locked up.
"The problem with dealing with foreign governments such as Cuba is
they do things at their own time, and we cannot. The Canadian government
cannot control when they will give an answer," he told Garcia during
the hearing, conducted via telephone.
"Now, although you've been detained for a lengthy period of time it
does not mean indefinite detention. The case law does not specify a
period of time as to what constitutes indefinite detention."
Although Thomson said the length of time a person has been detained
was taken into consideration, "lengthy detention, even for a period
greater than two years, in itself will not support a finding of release
if there are other reasons to support continued detention.
"In your case, the criminal activities involve violence and sexual
convictions referred to in the Immigration and Refugee Protection Act,
and it's been determined that conditions of release will not
sufficiently negate the danger, and can be supported for a decision for
continued detention even though detention has been lengthy," Thomson
told Garcia.
At Garcia's March 12 hearing, he will be represented by Lily Tekle, a
staff lawyer from the refugee law office at Legal Aid Ontario.
Tekle won't comment on his case due to the pending hearing.
"Unfortunately at this time, I don't think I feel comfortable
communicating with you only because proceedings are still pending and we
are making efforts to potentially work on a release plan for Mr.
Garcia," Tekle said in a voice-mail message.
Fort Erie resident Candice Cashman is one of several people who have agreed to act as a surety for Garcia if he is released.
"I have a lot of people who want to be responsible for me," Garcia said.
Cashman has no concerns about vouching for the man to whom she was once engaged.
"He never once was violent. He never once was aggressive," she said.
"I wouldn't even question whether he would be a danger to me or my
children."
While Cashman is confident Garcia poses no danger, Colson said she remains fearful of him.
And since Garcia has already served his parole while in custody,
Colson is concerned that if he's released in Canada there would be no
way to ensure her safety.
"That's kind of the issue. We're trying to figure out how to best be
protected if this happens, but there's nothing there," she said.
Although she could get a restraining order against him, she said that
will likely take months before it's approved. If Garcia is released in
Canada, she said, he won't even have a parole officer checking in on
him.
Welland MP Malcolm Allen has taken an interest in the case over the
past few years, advocating on behalf of Colson, his constituent.
"If you have a right to be in the country, then you have a right to
be released. But in Mr. Garcia's case, he was deported to the United
States. He has no right to be in the country at all," Allen said.
"The difficulty is finding a way to deport him back to Cuba."
Allen said he's discussed Garcia's case with Cuban authorities, and "the difficulty is that Cuba doesn't seem to want him."
Nevertheless, Allen and Colson agree that the situation needs to be resolved.
It costs Canadian taxpayers about $111,000 a year to keep a male
prisoner in custody, according to information published a year ago by
the Office of the Correctional Investigator.
"They cannot hold a person indefinitely," Colson said. "But he's here
in prison and something needs to get done. He can't be left in limbo."
Ideally, Colson is hoping Garcia will finally be permitted to return to Cuba.
"I think it would be best for everyone, and in everyone's best
interest -- for myself, my family and several of my friends "¦ and it
would be very beneficial for Mr. Garcia to go back home and be around
his own family as well," Colson said. "I hope for everyone that it will
happen."
But Garcia fears what might await him if he returns to Cuba.
Garcia said he could be thrown in prison in that country for having spoken out against the Cuban government.
Garcia said his father, Jacinto Garcia Sr., criticized the Cuban
government years ago. His father was taken to a military hospital and
never came home, Garcia said. Blaming the government for his father's
death, he said he began speaking out against the government, too.
"My family told me the government was going to put me in jail for 30 years," he said.
Garcia made it clear at his last review hearing in February that he does not want to return to Cuba.
"If you have problems, political problems in Cuba, I don't agree with
the communists and I don't want to be repatriated. If I'm here it's
because you want to deport me, then you can deport me. But that doesn't
mean that I want to be repatriated," he told immigration officials.
Cashman also fears for Garcia's safety if he returns to Cuba.
"For him to go back, yes, they would essentially throw him in jail if
not kill him," she said. "It's not safe for him to return there."
In the meantime, Allen has been working with Colson to develop a
private member's bill in the hope of getting more access to information
about the status of people involved in immigration cases.
Under current legislation, Colson said much of the information concerning Garcia is confidential.
"Even if he gets released, no one is notified of where he is. Even if he gets deported, I don't get to know," she said.
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