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The Effects of a Criminal Record on Travel
G. Shawn Swarts
G. Shawn Swarts
G. Shawn Swarts
Shawn graduated with a law degree from University of Western Ontario. Shawn articled in Ottawa, specializing in criminal defence work. Since his call to the bar in 1991, he continues to practice in this area.

Often I am asked whether a criminal record will have any effect on traveling to the U.S.A. The answer is a strong maybe, as the law in this area is both convoluted and often relies on the discretion of the immigration officers. However, under the Immigration and Nationality Act, all persons with a criminal record for certain offences (which is most of them), will not be permitted into the U.S.A.

You will be excluded if you have been convicted of a "crime involving moral turpitude", or a violation of any law relating to a controlled substance (essentially any narcotics charge). The exception to this exclusion are as follows:

Crimes committed when the person was under 18 and the crime happened more than 5 years before the date you are wishing to be admitted,
If the maximum penalty possible for the crime did not exceed imprisonment for one year and if the person was sentenced to a term of no more than 6 months imprisonment.

What is meant by a "crime of moral turpitude" is not entirely clear. It is safe to say that any serious crime will probably follow into this category. As well, this is a discretional category and the discretion is left up to the Immigration Officers.

In the U.S.A. the Immigration Department also view a conviction differently from what Canadian Law dictates. In the U.S.A. a conditional discharge is considered a conviction contrary to Canadian Law. However, an absolute discharge is not considered to be a conviction. Another twist, is a pardon from the Canadian Government may still be considered a conviction by the United States Government. It is believed that the immigration services has access to the Canadian criminal records to the extent that they can discover all acquittals, withdrawals, and past convictions, even if they have now been pardoned.

If you are concerned about your admissibility to the U.S.A., there is a procedure for getting advanced permission to enter the country. In order to do so, you have to apply for a waiver, which is done at the discretion of the Attorney General and granted if:

(i) The crime occurred more than 15 years ago

(ii) Admission would not be contrary to national welfare, safety or security of the U.S.A.

(iii) The alien has been rehabilitated

To apply for the waiver, one requires a certain form. It takes about 6 months to process and costs about $2,000.00 U.S.A. This waiver must be renewed each year.

Finally, it is an offence to lie to Immigration. If they discover this, you can be prohibited from entry to the United States for 5 years. Therefore, it is necessary that you answer the questions about criminal records and the purpose for your visit to the United States honestly. This being said however, there is a current questionable practice of some inspectors asking whether you have ever done anything that may constitute an excludable offence. The most common question asked is "have you ever tried drugs, smoked marijuana, etc."? Be advised, you can be excluded if you admit to having done anything illegal, even if you never got caught and have never been charged.

Furthermore, for those with charges pending there is no reason to be denied entry into the U.S.A. It is only convictions that may restrict your ability to travel there.

Essentially, my advice is to always be prepared. If you are traveling to the United States and have a criminal conviction, it may be in your best interest to have a copy of the criminal code offence, to show that the maximum punishment is less than 1 year. Also, if you are traveling for business purposes you should come prepared with a letter from your employer explaining the purpose of your visit to the United States.

Should you have any questions for Ask A Lawyer, please direct them to the Simcoe Reformer or ask a lawyer of your choice.

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