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I Was Given an Absolute Discharge for a Conviction Under the Canadian Criminal Code (CCC), am I Inadmissible to the United States?

Question:

Dear SRW Border Lawyers,

I am a Canadian citizen who currently resides in Quebec, Ontario, Canada. In December of 2012, I was arrested and charged with breaking and entering and assault under the Canadian Criminal Code. As background, I dated my ex-girlfriend for two years; however, during the course of our relationship we would repeatedly break-up and then get back together. On the day of my arrest, I was at her place and we began to argue. By the end of the argument, I told her that I was finished with the relationship and that I wanted to collect all of my property that was in her apartment (e.g. pots, pans, dishes, etc). At one point, my ex-girlfriend tried to prevent me from collecting my property by standing in my way, and I unfortunately made the mistake of moving her aside so that I could leave (I did not push or shove her). She called the police and they came to the apartment to investigate the situation. Subsequently, I was arrested and charged with breaking and entering and assault.

When I attended Court, my case was handled quickly. The breaking and entering charges against me were modified to assault, which I was convicted of; however, the Court later granted an absolute discharge on the assault conviction.

Currently, I work for a company that would like to send me to the United States for business. I am concerned that my conviction makes me inadmissible to enter the United States, and as a result, I may end up losing my job. Bottom line: I do not want my company to find out about this matter. Based on the facts I provided above, do you believe that I will encounter any issues entering the United States? Will I have to inform Customs and Border Protection of my arrest and conviction?

Answer:

Dear Reader,

Thank you for contacting the SRW Border Lawyers.

You state in your email that you were convicted by a Canadian Court for assault, but that you were given an absolute discharge for that conviction. Based on a March 2, 1993 memorandum issued by Winston Barrus regarding U.S. immigration consequences for absolute and conditional discharges under the Canadian Criminal Code, the memorandum notes that absolute discharges for all crimes are not considered convictions for the purposes of United States immigration law. This includes all crimes involving moral turpitude (CIMTs) and all drug-related charges as well. However, the memorandum notes that conditional discharges are regarded as convictions for the purposes of United States immigration law, even though Canadian law does not view them as convictions. Thus, based on the information you provided above, it is likely that your conviction would not affect your admissibility into the United States.

While you do not have to volunteer information about your arrest and absolute discharge to Customs and Border Protection, in general, you should answer all questions directed to you by immigration officers. We always advise clients to be honest and succinct in their answers. A sufficient response would explain that you were arrested, pled guilty to the charge of assault and were given an absolute discharge.

However, in order to ensure that the above truly applies to you, and to provide you with a complete and professional analysis of your case, I would encourage you to set up consultation to speak with us. Prior to the consultation, you should provide our office with the certificate of disposition of your case. A certificate of disposition allows our attorney’s to review what you: (1) were charged with, (2) pled guilty to, and (3) were convicted of. It also provides us with important information regarding how the Court may have disposed of your case, e.g. granting an absolute discharge. In addition, I would encourage you to obtain a copy of your Royal Canadian Mounted Police (RCMP) file. Your RCMP will provide yet another source to determine what, if any, criminal record you may have.

If, after reviewing your RCMP, you are still uneasy about applying for admission to the United States on your own, we do offer a service called “controlled admission.” During a controlled admission, one of our attorneys will accompany you to our local port-of-entry (the Peace Bridge in Buffalo, New York) and assist you with your application for admission, to ensure that any issues that may arise are handled appropriately.