Question:

Dear SRW Border Lawyers,

I am a Canadian citizen, and I live in Manitoba, Canada. In 1982, I made the terrible mistake of removing 5 rotary tables (each valued at approximated $50,000) from my business. The reason I took the tables, although well intentioned, in retrospect, was foolish. My company had fallen on hard times and it was eventually taken over by a bank. As a result of the take over, I had to fire all of my employees, which was incredibly difficult to do, but it was my only choice. I discussed with my employees how I could compensate them for some lost holiday pay, which the bank was unwilling to pay. As a result, I decided that I would take 5 rotary tables from the shop, sell them, and pay the employees with the proceeds. The rotary tables were sold to a company in California. Following the purchase of the tables, an employee told the police of the transaction and I was arrested and charged with theft. At my trial, I was prepared to plead not guilty, but my lawyer advised me to plead guilty as charged. I was convicted and ordered to serve 15 months in jail. I served half of my sentence in jail before being paroled for the remainder of the time. I know that taking the tables was wrong, but I did it to support my employees and their families. I have since restarted my business and it is financially sound and successful.

Three years ago, I tried to enter the United States, as I had done many times before, to attend an industry trade show. My line of work requires that I travel to the United States to inspect possible equipment before I purchase anything. At the border, the officer questioned me about the conviction. The officer informed me that due to my criminal conviction in 1986, I can no longer enter the United States without first obtaining a Form I-192, Application for Advance Permission to Enter as a Nonimmigrant. I couldn’t believe after such a long period time of going back and forth across the border that I was now being denied entry! Beyond the 1986 conviction, I have no other criminal record whatsoever!

Several months after my denial, I applied for the waiver and was later approved for one (1) year. The waiver has since expired. Because I am advanced in age, is there a more permanent solution to my problem? I do not want to continue to apply for waivers, especially if I am going to be issued waivers that only last for one (1) year at a time.

Answer:

Thank you for your question.

We are hearing more and more cases of individuals who are being denied entry into the United States after years of unfettered access. The denials are often based on a single conviction that occurred over 20 years ago. One reason for these types of denials is the fact that local law enforcement agencies are now able to access records that they were previously unable to.

As you already know, certain criminal convictions can prevent you from entering the United States, unless you first acquire a nonimmigrant waiver. Based on the date of conviction, type of conviction and circumstances surrounding the conviction, we sometimes recommend that a client consult with an experienced criminal attorney to review his or her criminal history to determine if there were any legal or technical defects in the underlying criminal proceedings. If so, it may be prudent to discuss attempting to vacate his or her previous criminal conviction. Current legal precedent states that a vacated conviction will no longer count for U.S. immigration purposes if the conviction was vacated because of some type of legal or technical defect during the criminal proceeding (e.g. ineffective assistance of counsel). A vacated conviction solely to circumvent the immigration consequences of the conviction will be insufficient to remove the immigration consequences.

In order to determine your best strategy moving forward and provide you with a thorough professional analysis, we would recommend that you schedule a consultation with our office. Should our review determine that continuing to file for your waiver is your only option – there is one glimmer of hope. While the Admissibility Review Office (ARO), the office which adjudicates these waiver applications worldwide, initially grants the waiver for a period of one (1) year, subsequent waivers can be approved for up to a five (5) year period, thereby easing the burden with reapplying. Thus, we can discuss with you potential methods to request that your next waiver be approved for a longer period of time.

We look forward to speaking with you and assisting you with your U.S. immigration matters.