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Criminal Records and the United States of America

Most, if not all, practising criminal lawyers will have been at one time or another asked how a Canadian criminal record might affect entry into the United States of America. The answer to this question is usually that we are neither American lawyers, nor experts in American immigration law, and any information provided is a “best guess” as to how the entry process works.

The purpose of this review is to outline the procedure for Canadian citizens who have a criminal record and who seek entry to the United States.

Disclose. The United States requires every person with a criminal record (regardless of the nature of the offence or when it was committed) to disclose the existence of a record.

Offence. Denials of entry for the most part depend on the nature of the offence traveller has been convicted of. Pardons. Canadian pardons are not recognized by the United States and the receipt of a pardon does not obviate the need for disclosure of criminal antecedents.

Past entry. Simply because an individual has previously been admitted into the country does not mean that entry will be granted once the disclosure is made.

Appeal. If a traveller is denied entry into the U.S. they may appeal the decision.

Background

Whether by air, land, or sea, a traveller to the United States of America with a criminal record will undoubtedly face uncertainty about their eligibility for admission into that country. Despite this there are a few things that should be known before advising a client.

Not all convictions disqualify

The Immigration and Nationality Act (INA) is the statutory gatekeeper empowering border agents to allow or deny foreign nationals entrance into the United States of America. The INA states that an individual convicted of certain crimes can be denied entry into the United States. For example, a traveller will be denied entry if the individual in question has multiple convictions, or has been convicted of trafficking in a controlled substance, trafficking of persons, or for money laundering. The INA also authorizes border agents to deny entry to persons that have been convicted of crimes involving moral turpitude (CIMT).


 Although defunct in most common law jurisdictions, whether or not a crime is one of moral turpitude is a complex question of U.S. law and is determined by the nature of the offence that the individual was convicted of. In general, CIMT refers to conduct which is, “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.”2 According to the U.S. Department of State the most common element in these crimes are fraud, larceny, and/or intent to harm persons or things.3 However, a CIMT in American law can range from the offence of aggravated stalking, to tax evasion, and prostitution.4 It should be noted that attempting to commit, aiding and abetting, or conspiracy to commit a CIMT will be treated as a CIMT. There are also some important exceptions to these grounds for denial outlined in the INA, namely for minors, and for crimes with sentences of less than a year. These should be examined before advising a client.

What if the individual fails to disclose their criminal record?

If a person attempting entry into the United States fails to disclose the existence of a criminal record, even for crimes that would not otherwise exclude them from crossing the border, they will likely be denied entry, possibly face permanent ineligibility, and/or be detained at a U.S. Department of Homeland Security enforcement facility.

What is the correct protocol?

Individuals with a criminal record attempting to enter the United States should allot considerable time and be prepared to be denied entry. A quick, inexpensive, but risky way is to simply present a paper copy of the criminal conviction to the U.S. Customs and Border Protection (CBP) officer while attempting to cross. CBP officials have the discretion to deny and allow entry into the United States and they will review the record. If the offence is clearly not one of the grounds to exclude entry the border agent will likely grant the individual entry. But this is a gambit, and the U.S. Embassy in Canada advises individuals only to use this method for a single conviction of impaired driving.

What if a person is ineligible or believes they might be?

If an individual is uncertain if they will be turned away at the border they can apply in advance to enter the United States. If filed in advance of travel or in anticipation of a denial of entry, they must file an Application for Advance Permission to Enter as Non-immigrant (I-192). In the alternative, if they are denied entry at the border they may appeal the decision of a CBP officer by filing an Application for Waiver of Grounds of Inadmissibility (I-601). An individual can apply to these through the Department of Homeland Security of the CBP at any U.S. or Canadian port of entry or Canadian airport with a preclearance facility (Vancouver, Edmonton, Winnipeg, Toronto, Ottawa, and Montreal). For each application it can take up to a year for a decision to be made and the cost of filing is $585.5.

The DHS makes the ultimate decision but the consular officer must first recommend that an ineligible person be allowed entry into the United States. This decision is largely based on whether or not the Department believes that the individual will engage in unlawful activity while in the United States, how recently the conviction was entered, and whether or not it is in the national interest to grant them entry. Given this lengthy process the U.S. State Department and the DHS encourage applicants to register with the Traveller Redress Inquiry Program (TRIP). Here the applicant will be assigned a case number and the Department will answer applicants’ queries and inform them of a resolution regarding their denial or delay in entering the United States.

Conclusion

This how-to guide should not be taken as exhaustive and anyone advising a client or colleague should research the Immigration and Nationality Act, U.S. immigration procedure, and any relevant case law. Before deciding how to proceed, look first at the nature of the criminal conviction itself; does it involve trafficking in an illegal substance, persons, and/or laundering money? Is the conviction for a lesser offence, or could the crime be considered one involving moral turpitude? If not, the individual should approach the border with the proper paperwork and be prepared to fully disclose their criminal record. Any attempted border crossing should be approached with the expectation that they could be delayed, or outright denied entry into the United States. If they feel they cannot pass these first hurdles, especially if their conviction is on the boundaries of the CIMT category, the best strategy is to apply for preclearance in advance by filing a waiver of inadmissibility.

*Special thanks to Eric Girard, JD candidate, University of Ottawa, for his invaluable assistance in this article’s preparation.*