So: You Want to go to Disneyland

There is a complicated list of reasons why it can be difficult to travel to the US. The US Customs and Border Protection website discusses some of them, such as the effect of having a criminal record, but it can be confusing. The Canadian Border Security Agency and the US Customs and Immigration Services can provide guidance. The bottom line is this: unless your’s is a clear exception, entry can be at the whim of individual border officials – and attempting to gain entry illegally can result in a permanent ban.

It used to be that having a fingerprint (FPS) number meant the difference as to whether there was some record of your involvement in the criminal justice system. However, US and Canadian customs officials were recently given access to a Canada-wide police database, including routine matters. Nowadays, even just having your name mentioned in a police report could lead to problems at the US border.

That means that no matter what it’s for or when you got it, any criminal conviction could lead to problems getting into the USA (even if you’ve never had a problem in the past) and if you’ve previously been denied entry then you can expect problems. Even a discharge or a pardon is no longer a guarantee, because they are not recognized under US law. If you’re left wondering whether you’ll be allowed in, you should contact a US port of entry or the US Embassy well in advance of travelling and determine if you should apply for a Waiver of Ineligibility (submitting a Form I-192, “Advance Permission to Enter the U.S. as a Non-Immigrant”) which, of course, can take several months to process.

Where a Waiver is required, attempting to gain entry without one could result in detention and a permanent restriction from entering the United States. Or you could just be sent home.

Certain types of offences automatically exclude you from entering. Crimes of ‘moral turpitude’ head the list. To confuse the issue, the published list of crimes making someone inadmissible is not necessarily complete and, believe it or not, it doesn’t necessarily require a conviction or a criminal record to make a person ineligible. Any offence committed under age 18 should be okay if the maximum penalty for the offence did not exceed a year in jail and the actual sentence was no more than 6 months – and provided the person was released at least 5 years before applying for an entry visa.

The definition of what constitutes a crime of moral turpitude is very broad and the list is long. It ranges from shoplifting to murder, and the sentence is seemingly irrelevant. Examples include:

  • Any type of theft or fraud, including Shoplifting or passing bad cheques
  • Personation
  • Perjury
  • Assault causing injury (or with intent to cause harm)
  • Sexual violence
  • Weapons offences involving violence or used in the commission of a crime.

The ‘exclusion list’ also contains drug-related offences, including a single incident of possessing a small amount of marijuana, or possession of drug paraphernalia. No actual conviction is even required to trigger this one. (The media has reported examples of people getting turned around after admitting to a US border guard that they got arrested for being found with a joint half a lifetime earlier when they were in highschool.) Also, entry can be denied the spouse or child of someone who has been convicted of a drug-related offence and who has received any kind of financial or other benefit within the preceding 5 years from illicit activities related to controlled substances – drug trafficking – if they ought to have known that was the case. That probably also applies to other proceeds of crime situations.

Of note, minor offences that are considered ‘misdemeanours’ in the US (such as mischief, common assault, causing a disturbance, failing to appear, breach of probation and impaired driving) aren’t supposed to affect a person’s right of entry – nor should multiple convictions for offences not on the moral turpitude list. The reality, however, is that having more than one of these offences on your record could lead to delays at the border – and you could be denied entry. Further, someone with two or more convictions on their record will likely be denied entry if the combined sentences were 5 years or more. Also, if you have ever been deported then you won’t likely ever get back in.

Other criminal activity on the automatically excluded list (and it’s unlikely you’ll ever be allowed into the US) includes:
– Prostitution and commercialized vice (gambling or pimping)
– Smuggling
– Human trafficking
– Money laundering
– Anything to do with counterfeiting (or passing counterfeit currency)
– Involvement in something that involved granting immunity from prosecution.

Arrests, acquittals and convictions that don’t show up on a Canadian criminal record are not as straight-forward: if your record shows you have ever been arrested, or were charged but never convicted, or even if you were convicted but given a discharge or have been pardoned, then you should still be able to enter the US. Even having been placed on a ‘peace bond’ could be a problem. This sort of information, kept by the Canadian police and US law enforcement officials is or will be accessible to US customs agents when your passport gets scanned. This is where the individual discretion of border guards really comes into play. If anything on your record causes concern then you could face questions.

It is worth noting that there is nothing like a discharge or a peace bond in the US: they see (and treat) them as convictions, even though neither gives you a criminal record. Another consideration is that Canada and the US don’t officially recognize each other’s policies on pardons. Even worse, when charges have been withdrawn or a person has been acquitted it remains on the police database and is (or will soon be) accessible to US border officials. The bottom line is that having your Canadian criminal record expunged doesn’t mean the slate is wiped clean. It will, however, be considered ‘evidence of rehabilitation’ if a traveller applies for a Waiver. One suggestion might be to carry proof that a charge was withdrawn or some form of declaration as to what a peace bond or discharge means in Canada. No guarantees, but it is likely better than just crossing your fingers and might get you through the border.

As an aside, an absolute discharge is supposed to be removed from your criminal record after one year – and three years from the end of your probation for condition discharges. This doesn’t necessarily happen automatically, and it is worth checking with your local police department if you want to be sure.

Also of note: all customs officers are federal agents. US border guards enforce federal laws but not state laws and so it is irrelevant at the border that pot might be legal in the state you are trying to enter (and so why should it matter that you once got dinged for having a couple of joints). On the other hand, if there is an outstanding warrant for your arrest, it could show up on their system regardless of whether it relates to a federal, state, or provincial offence.

Some common examples of questions that travelers get asked are: “Have you ever been arrested or charged with anything?”, “Have you ever been fingerprinted?” or “Have you ever tried marijuana?”. Answering “yes” even for something seemingly insignificant could get you turned around regardless of why and whether there’s anything on your record. Answering “no” will likely lead to further questioning if it’s apparent from your record that you are not being truthful. There are stories of travelers being detained and even turned around at a border crossing, and being barred from traveling in the US, even though they have never been charged with anything or have nothing showing on their criminal records. The rumour-mill abounds about people who haven’t been allowed into the US because they admitted smoking pot, even as a teenager.

Waiver application forms are available from any port of entry or pre-clearance site, the US Embassy or a US consulate in Canada.

Keep in mind that every country has its own customs and immigration policies. You can still fly over the United States to go somewhere else. If you have any concerns, Canadian Border Services or possibly your local police should be able to answer your questions.

(September 2016)

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