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Canadians with criminal records: Admission to the U.S. - May 26, 2006
Imagine the following scenario. A Canadian citizen has traveled to the border with her family for vacation in Maine. It is August, the car is jam packed, they have been traveling for awhile, the DVD player isn’t working, the kids are fighting in the back seat, and they just want to continue on their way.
However, when attempting to cross at the U.S. border, a long forgotten criminal issue is suddenly the subject of intense scrutiny. The border official states that the alien appears to be inadmissible to the United States based on her criminal record, and must present her certified arrest record and court record, if any, for review. She obviously does not have these records with her, if she still has them at all. Even worse, the border official says all this after the Canadian citizen answered “no” when he asked if she had any criminal record. After all, she was only arrested in college, and nothing much ever came of it.
Now it is really time to buckle her seat belt, as she is in for a bumpy ride.
Inadmissibility
Despite what you may think, the above scenario is not all that uncommon. U.S. immigration law renders “inadmissible” those aliens with certain criminal records, however dated or “minor.” Generally, whether an alien is inadmissible depends on the type of offense, and the maximum punishment for the offense. Drug offenses and so-called “Crimes Involving Moral Turpitude” are some of the more common grounds of inadmissibility.
Section 212 of the Immigration and Nationality Act (INA) sets forth the various grounds of inadmissibility, with criminal offenses addressed generally as follows:
(A) Conviction of certain crimes.-
(i) In general.-Except as provided in clause (ii), 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 (other than a purely political offense or an attempt or conspiracy to commit such a crime), or
(II) 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 (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible.
(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-
(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or
(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).
(B) Multiple criminal convictions.-Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement 2/ were 5 years or more is inadmissible.
"Conviction" not necessarily required
Even more surprising is the situation where the border official asks whether the alien has ever engaged in the use of illicit drugs, and the alien responds that she smoked some marijuana in college. It is important to remember that an alien may be inadmissible based on an admission of misconduct, no matter when it may have occurred. The law covers “any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of” a crime. Simply admitting the elements of a crime may result in denial of admission. Accordingly, having been arrested for an alleged offense may generate scrutiny at the border, regardless of whether the charges were dropped or no conviction otherwise resulted. This may seem wrong, but it is the way it works. The border is a unique place, and an alien’s rights are limited in this setting.
Crimes involving moral turpitude ("CIMTs")
“Crimes involving moral turpitude” are not defined in the INA. However, the range of offenses deemed to involve moral turpitude is broad, including everything from turnstile jumping on the subway to domestic assault. Some offenses which have been held to constitute CIMTs are as follows:
- - OUI or driving under the influence (aggravated);
- - Spousal or child abuse; and
- - Assault with intent to cause serious physical injury.
U.S. immigration officials determine whether a crime involves moral turpitude by looking at the statutory offense, and interpreting it in accordance with U.S. law. An alien with any sort of criminal record should consult with someone (other than U.S. immigration officials) before applying for admission. Even seemingly minor offenses could render an alien inadmissible.
"Petty offense" exception
For a single misdemeanor offense, an alien may be able to take advantage of the so-called “petty offense” exception. This provides that an alien is not inadmissible if the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months. Accordingly, both the maximum sentence possible and the sentence imposed are relevant.
Waivers of inadmissibility
Canadians seeking to enter the U.S. as nonimmigrants, who are inadmissible based on a criminal record, may apply for a waiver of inadmissibility at the border. Waivers are discretionary, taking into account the following factors:
1. The risk of harm to society if the applicant is admitted;
2. The seriousness of the applicant’s prior immigration law, or criminal law, violations, if any; and
3. The reasons for wishing to enter the U.S.
Generally, the more time which has passed since the offense in question, the greater the chance of a waiver being approved. Also, although a pardon from the Canadian National Parole Board does not remove any grounds of inadmissibility to the U.S., it is evidence of rehabilitation, which is relevant to a waiver application. The waiver process often takes months, and is far from certain. However, it is an option available to those whose criminal records make them inadmissible to the United States.
This document was prepared by Matthew S. Raynes. For further information, contact Matthew S. Raynes at mraynes@eatonpeabody.com.
This paper is provided as general information, and is not a substitute for legal or other professional advice.