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.

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.

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.

A previous drug conviction is preventing me from entering the United States. I need to take College final exams or I risk losing an entire semester of credit.

Question:

Dear SRW Border lawyers,

I entered the United States in F-1 status to attend college in California. During my first semester I was arrested and charged with possession of a controlled substance. The controlled substance was not mine, but since it was found in my car I was charged with possessing it.  During the criminal proceeding, I was represented by a public defender who was unaware of immigration law and how a criminal conviction would affect my immigration status. In fact, I was told on several occasions that if I were to pled guilty to a misdemeanor the conviction would not affect my immigration status. Taking the advice of my lawyer, I pled guilty to a misdemeanor. I was under the impression that entering a plea and paying a small fine would put an end to my situation.

Several months later, I returned home (Sweden) during Christmas break. When I tried to return to the United States to continue my classes, Customs and Border Protection (“CBP”) denied me entry due to my conviction. After I explained the situation surrounding my conviction CBP paroled me into the country for one (1) year. I finished up my spring semester and then returned home to Sweden again for summer vacation. Unfortunately, I did not realize that my parole was only a one-time entry. So, when I tried to enter the United States again to begin the new school year, I was denied because of my conviction.

My school has been very understanding with my situation, but I was recently informed by school administrators that I must take my final exams in-person, or I will have to withdraw from all of my classes and lose an entire semester worth of class credit.  How can I enter the United States? I do not want to lose an entire semester of classes.

Answer:

Thank you for contacting the SRW Border Team. As you already know, you are inadmissible due to your criminal conviction. Pursuant to INA § 212(a)(2)(A)(II), “any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance is inadmissible.

That being said, and with only a limited understanding of the facts of your case, you may have some options available to return to the United States to finish your schooling.

Parole

Despite you inadmissibility, you may be able to parole into the country for a period of time long enough to take your exams. Parole is a legal fiction that CBP uses to allow individuals to enter the United States for a specific purpose and period of time without actually “admitting” them. Parole is generally used in situations where there is a strong humanitarian or business need, however, an experienced immigration lawyer may be able to develop and present a persuasive case to CBP to allow for the discretionary authorization of parole. You should also be aware that your parole will more than likely be a one-time entry only, which means that once you enter the country, you will not be able to return if you depart prior to the expiration of your parole.

Vacate Criminal Conviction

While we only have the information you provided in your email, you may be able to vacate your criminal conviction. Based on your email, it appears that throughout the criminal proceeding you were not properly apprised of the immigration consequences of your plea agreement. Vacating the conviction would essentially clear your record and remove your inadmissibility. While our office does not handle criminal matters, we have a network of experienced criminal lawyers that we will put you in contact with and then work closely with that lawyer to resolve your immigration matter.

If you are not able to vacate the criminal conviction, you will likely need to apply for a non-immigrant waiver through the U.S. Consulate in Sweden, in conjunction with your application for a new F-1 visa.  For more information about this non-immigrant waiver process through the Consulate, please click here. 

We hope the above information was helpful. We look forward to speaking with you through our detailed consultation process and helping you through this stressful time.