A Canadian immigration official failed to consider the hardships a high-profile American deserter and his family would face if forced to return to the United States, a Federal Court judge heard Tuesday.

In arguing Jeremy Hinzman's case in Toronto, lawyer Alyssa Manning told the court that deserters who have spoken out against the U.S. invasion of Iraq have been singled out for prosecution while others have been allowed to quietly leave the military.

As a result, she told Judge James Russell, Hinzman would likely be the victim of "differential treatment" if returned to the U.S., something the immigration officer did not consider properly.

"The applicant was the first person to come to Canada and publicly oppose the war in Iraq," Manning said.

"He is worried about being court-martialled and imprisoned."

Hinzman, 30, who staved off deportation in September after his refugee claim was turned down, is hoping the court will order the federal government to take another look at his application to be allowed to remain in Canada on humanitarian and compassionate grounds.

The immigration official failed to consider the impact prosecution in the U.S. would have on his wife, six-year-old son Liam and seven-month-old daughter Meghan, court heard.

Manning argued the family would be split up, his wife left to fend for herself and children, and Liam could find himself bullied at school because of his dad's outspoken views, court heard.

Family's separation a 'natural consequence': Crown

Crown lawyer Stephen Gold rejected Manning's arguments, saying Ottawa had considered the Hinzmans' plea to stay "sympathetically [and] thoughtfully."

It would be "perverse," Gold argued, to allow the family's potential hardship to trump the fact that Hinzman would have to face the music for his own actions in the United States.

"Separation occurs when people are incarcerated — it is a natural consequence," Gold said.

The hearing occurred on the same day as a U.S. deserter who left Canada voluntarily last week prepared to face prosecution.

"I'm nervous, scared," Cliff Cornell, 29, of Mountain Home, Ark., said before turning himself in at Fort Stewart, Ga., on Tuesday.

"I'm just not a fighter. I know it sounds funny, but I have a really soft heart."

It was expected Cornell would face criminal charges for abandoning his unit before it deployed to Iraq in January 2005 and fled to Canada.

Hinzman, of Rapid City, S.D., is a former U.S. army specialist from the 82nd Airborne Division in Fort Bragg, N.C. who fled the United States for Canada in January 2004.

He acknowledged Canadian immigration authorities and the courts have not been particularly kind to war dodgers, who have repeatedly been refused refugee status or permission to stay.

Several have been forced to return.

"Hopefully, they'll say that they need to re-evaluate our application and then in the end we'll be able to stay," Hinzman said in an interview.

"That's what I hope for; I don't know if that's what will happen."

Russell reserved his decision.