I was denied entry into the U.S. due to a criminal conviction. I applied for a waiver, but it was only valid for one (1) year. Since I am 76-years-old, is there a more permanent solution?

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.

In 2010, I was admitted to the United States. In 2012, I was denied entry due to a 1985 criminal conviction. Can you tell me whether I am truly inadmissible to the U.S.?

Question:

In 1985, I was convicted of attempted theft in Canada (I broke a car window). I am a Canadian citizen and currently live in Vancouver, Canada. Last May, I tried to enter the United States, but was denied entry because of my 1985 conviction. I have no other criminal record. Interestingly, two years ago when I tried to cross the border, I was sent to secondary inspection, detained and questioned for 2 hours, but allowed to enter. During my detention, Customs and Border Protection (CBP) managed to damage my classic car that I was traveling in a the time. I filed a claim against them, but it was eventually settled out of court. Last August, my criminal record was completely expunged. CBP claims they can still hold my previous criminal conviction against me. I only cross the border for car shows, charity fund raising events, and to visit friends. Outside of my 1985 conviction, I have never had any other legal issues. Can you provide me with any input as to whether I am admissible to the United States, I can't seem get a consistent answer from CBP?

Answer:

Thank you for contacting the SRW Border team with your question. You are certainly not the first person to receive inconsistent answers from Customs and Border Protection (CBP). As I recently told a client, CBP officers may be professional and at times helpful, however, in reality, officers should never be your only source of guidance regarding your immigration matters.

We receive many questions relating to previous criminal convictions and their ramifications on admissibility. While each case we receive is different, our initial approach is always the same: through our consultation process, thoroughly review the case and then discuss the case in detail with the client and determine the best strategy moving forward depending on our clients goals.

I imagine that the claim you filed against CBP may have resulted in some ill will; however, CBP cannot use that as a ground for denying your admission into the United States. As far as your conviction is concerned, we would like to review your complete court record to determine: (1) if the conviction makes you inadmissible to the United States for immigration purposes, and (2) how the current disposition of the conviction affects your admissibility. Even though your conviction is from 1985, was your sole conviction and it has been expunged, if it indeed is an ‘conviction’ as defined under the Immigration & Nationality Act, it could very well mean that you are inadmissible to the U.S. under INA §212(a)(2)(A)(i)(I). However, as mentioned above, we would need to determine whether you do indeed have a ‘conviction’ for immigration purposes, whether it falls under any of the enumerated exceptions, etc. In the event that your court records do not provide enough information, we will likely ask that you request your RCMP. It may even be beneficial to make a Freedom of Information Act (FOIA) request to obtain your complete CBP record.

Once we understand the disposition of your conviction and how it affects your admissibility, we will likely have one of two choices: (1) if our research determines that you are indeed inadmissible to the U.S. because of your criminal conviction, help you prepare a nonimmigrant waiver application packet (Form I-192) for submission to the Admissibility Review Office; or (2) if our research indicates that you are not inadmissible, we can provide a service called a “controlled admission.” A controlled admission typically includes the following: (1) a comprehensive professional analysis of the client's U.S. immigration issue(s); (2) preparation and submission of a detailed packet outlining the reasons why you are admissible to U.S. Customs & Border Protection (CBP) at a local Port of Entry; and (3) attorney accompaniment to the local Port of Entry for your admission.

For more information about your case, we encourage you to contact our office and schedule a consultation to speak with the SRW Border team and receive a thorough professional analysis of your case. We look forward to hearing from you.

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.

Vacating Criminal Convictions under the Immigration and Nationality Act ("INA")

The Immigration and Nationality Act (“INA”) restricts certain classes of individuals from being able to enter the U.S. - whether temporarily or permanently – by deeming them ‘inadmissible’ to the United States under INA §212. Conversely, the INA also has certain provisions which can render individuals who are already present in the U.S. – whether lawfully or unlawfully – ‘removable’ from the United States under INA §237. One class in particular that is vulnerable to being permanently ‘inadmissible’ and/or ‘removable’ are individuals who have certain prior criminal convictions.

Specifically, pursuant to INA § 212(a)(2)(A)(i) (which tends to be a common ground of inadmissibility but is not the sole ground of criminal inadmissibility): Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of: (I) a crime involving moral turpitude or an attempt or conspiracy to commit such a crime, or (II) a violation of any law or regulation of a State, the United States, or a foreign country relating to a controlled substance, is inadmissible.

The various grounds of removability based on criminal convictions can be found in INA §237.

Crimes Involving Moral Turpitude

A crime involving moral turpitude (“CIMT”) is generally defined as a crime that is “inherently base, evil, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” The definition of a CIMT is somewhat difficult to understand by many; however, the following crimes have been commonly found by courts to be CIMTs: Assault (in the second degree), Battery (aggravated), Child/Spouse Abuse, Criminal Reckless Conduct, Driving Under the Influence (aggravated), Arson, Blackmail, Theft, Possession of Stolen Property, and Bribery. However, since each state statute differs, and each case is unique factually, foreign nationals are urged to have an experienced immigration attorney review their case to ensure/confirm whether or not their specific conviction is a CIMT. Additionally, even if the conviction is a CIMT, an experienced immigration attorney can determine whether the conviction may fall under one of two the enumerated exceptions (Petty Offense Exception and/or Juvenile Exception) provided under INA §212.

Convictions for Violations of Federal, State, or Foreign Drug Laws The INA is exceptionally harsh when it comes to dealing with drug related convictions because of the severe negative impact that drugs have on our society. For example, while the INA provides for a nonimmigrant waiver for drug conviction(s) to allow individuals to visit the United States under INA §212(d)(3), it does not provide for an immigrant waiver for drug convictions other than a single offense of simple possession of 30 grams or less of marijuana. Thus, while individuals with drug convictions may apply to temporarily enter the United States with non-immigrant status, they will be forever barred from immigrating to the United States (beyond the aforementioned exception) because of their previous drug-related conviction.

Inadmissibility Based on Conviction

The INA defines the term “conviction” as: “a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where— (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.” INA § 101(a)(48)(A).

What does this mean? Well a conviction itself is easy enough to understand – but there may be situations in which the foreign national has been advised that the case has been dismissed pursuant to a conditional discharge or some other means, but an underlying plea of guilt remains. The underlying plea of guilt could still be a ‘conviction’ for immigration purposes.

Inadmissibility Based on Admission

Surprisingly, under INA § 212(a)(2)(A)(i), an individual can be found inadmissible, even if they have not been convicted in a court of law, as long as they “[admit to] having committed, admit [to] committing acts which constitute the essential elements of ” a CIMT or a controlled substance related offense. On its face, INA § 212(a)(2)(A)(i) seems to run contrary to well-established constitutional principles, such as due process; however, the INA is intentionally written this way to give immigration officers greater authority to prevent individuals (who may have committed a crime, but were not arrested or convicted for it) from entering the United States. When an immigration officer makes a finding of inadmissibility based on an admission, it is equal to that of a conviction by a court of law for immigration purposes and will remain on your immigration record and forms a permanent ground of inadmissibility. However, there are procedural safeguards in place within the law to ensure that any such ‘admission’ is legally sufficient.

Our Services

In the past, our firm has successfully assisted numerous clients in clearing up/resolving their inadmissibility. In some situations, it was a matter of establishing that the disposition of their criminal matter did not result in a conviction for immigration purposes. In some, it was a matter of reminding immigration officials that while the individual had a conviction for immigration purposes, their conviction fell into an enumerated exception. For others, it has been discussing the client’s case in detail with them and determining whether, through the assistance of a criminal attorney, their conviction could be vacated because there seems to be a technical/legal defect in the underlying criminal proceedings which forms the basis of their inadmissibility. If the conviction is vacated, we then prepare a legal memo explaining to the proper authority (whether a U.S. Consulate abroad or U.S. Customs & Border Protection) that the foreign national is no longer inadmissible and that the appropriate records be updated to reflect the same.

And for the fortunate few that have contacted us during their criminal proceedings, we have been able to work with their criminal attorney to help resolve their criminal matters in a way that does not render them inadmissible to the U.S.

What should you take away from this posting? If you are currently in criminal proceedings and are a foreign national, contact our office to team up with your criminal attorney to avoid a conviction which can render you removable and/or inadmissible. If you have completed your criminal proceedings and have a conviction, contact our office to have us evaluate your current immigration status and options moving forward.