Canadian Citizen Admitted Into the U.S. After U.S. Conviction Vacated

After years of traveling to the United States without incident, in April 2012, while applying for admission into the U.S. to attend a concert, our client, a Canadian citizen, was informed by CBP Officers that his criminal convictions from 1999 in Toole County, Montana rendered him inadmissible to the United States. Subsequently, our client reached out to us to see what options were available to resolve his U.S. immigration matters. Given his convictions, we explained to him that he was inadmissible to the U.S. under INA §212(a)(2)(A)(i)(I) for a controlled substance violation and thus would require a non-immigrant waiver under INA §212(d)(3) for the rest of his life in order to continue re-entering the U.S. We explained the I-192 application process, processing timeframes, etc.

Our client was quite upset at these turn of events – he had not realized that the plea he had made would render him inadmissible to the U.S. He also felt that he had not been properly advised of possible immigration consequences. Instead of just advising our client to apply for a non-immigrant waiver for the rest of his life because CBP had determined he was inadmissible, our firm first confirmed that he was in fact inadmissible under INA §212(a)(2) and that his conviction did not fit under one of the excepNext, we proposed a strategy: we would attempt to get Client paroled into the U.S. by CBP to address to any important/urgent matters given that he suddenly learned of his inadmissibility and concurrently attempt to find a criminal attorney in Montana who could review the client’s criminal case to determine whether there were any technical and/or legal deficiencies during his proceedings given his brief recollection of the proceedings.

Subsequently, we were able to have our client paroled in twice: once in May 2012 to attend an important education convention related to his employment and again in September 2012 to stand as best man at his best friend’s wedding – both activities which had been planned well before April 2012 and at which time our client was not aware of his inadmissibility.

Concurrently, we located and began working with a criminal defense attorney in Montana to address possible procedural and/or constitutional errors that may have occurred during the handling of his case. We explained the immigration consequences of the plea and had the criminal defense attorney review our clients criminal records. The criminal defense attorney’s review of the record revealed that there was questionable doubt whether our client was properly advised of his constitutional rights during his criminal proceedings. After discussing his analysis with the County Attorney, our client’s criminal defense attorney filed a Motion to Amend Record with the Court which sought to vacate our client’s convictions and underlying plea, and dismiss the charges against him in their entirety. The Motion was granted and entered.

Our office subsequently provided CBP with the new order and requested that our client be admitted into the U.S. as a B-2 visitor for pleasure and that CBP records be updated to reflect that our client was no longer inadmissible to the U.S. given that he no longer had a ‘conviction’ for U.S. immigration purposes. Specifically, his plea had been vacated and the convictions against him had been dismissed with prejudice. Under INA § 212(a)(2), which lists the criminal grounds of inadmissibility, it is a prerequisite that an alien must be “convicted” in order for these grounds to apply. As our client was not “convicted” within the meaning of the term as defined by the INA, he is therefore not inadmissible to the U.S.

Our Client was admitted by CBP in B-2 status, CBP has amended their records and our client will not have to obtain a non-immigrant waiver in the future and can travel freely as most other Canadian citizens to the U.S.

This case is a prime example of the innovative strategies and solutions that our firm provides to our clients – By keeping in mind the client’s short-term and long-term goals, and exploring ‘out-of-the-box’ ideas, we are able to offer strategic options that enable our clients to achieve their end goals, instead of merely relying upon the ‘usual’ solutions.