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Border Crossing With Criminal Records

Individuals who have committed a crime in the past may be denied entry into the US or Canada. Since 9/11, the two countries have been sharing national criminal databases with each other. This means that your record will be easily accessible to border officials on both sides. As a result, your ability to travel to either country is no longer a simple thing.

Now, you may think that a mistake you made in your youth couldn’t possibly be a good enough reason to be refused to enter a country, especially if you have a legitimate reason to go there. Or, you were charged, but you weren’t even convicted of a crime, so you’re practically innocent. There’s really no reason for you to become “inadmissible.” However, your record will show the charge.

Based on a country’s immigration laws, that youthful indiscretion or criminal charge may already be grounds for labeling you as inadmissible or ineligible for entry. Even if the laws technically allow you entry into Canada or the US, the border official may not see it or interpret it the same way.

So, before you even think of crossing the border into the US or Canada, you’ve got some thinking and planning to do. Each country has a different set of laws which makes it a bit hard to predict how they will perceive an offense. Also, both the US and Canada have their own list of crimes and convictions that make a person inadmissible. What can prohibit your entry to Canada, such as DUI, will not necessarily bar you from entry into the US. And if you’ve heard of stories about individuals easily crossing the border multiple times even though they have a record, don’t think you’ll experience the same thing. Generally, it is up to the border officials whether you can enter the country or not based on your record. So long as you have a record, you should expect a slightly bumpy crossing.

Crimes that make inadmissible to Canada

Generally speaking, any individual who has committed a crime or been convicted of one may be deemed “criminally inadmissible” by Canada’s border officials and denied entry. This includes minor and serious offenses such as:

  • disorderly conduct
  • driving under the influence (DUI)
  • computer crime
  • perjury
  • harassment
Criminally inadmissible to Canada
  • theft
  • manslaughter
  • rape
  • drug trafficking

Naturally, serious crimes punishable by a maximum prison sentence of at least ten years if committed in Canada are included. However, minor offenses may also be reason enough to warrant a refusal to entry. Basically, any of the offenses, both minor and serious ones, listed in the Criminal Code of Canada and the Controlled Drugs and Substances Act may declare you as “criminally inadmissible” based on several factors.

1 One factor that determines your admissibility is the nature of your offense. As mentioned earlier, each country has its own set of laws and its own interpretations of it. Your offense will be weighed based on its classification under Canadian law. Like the US, Canada has two main types of offenses: summary and indictable.

Generally, summary offenses are similar to misdemeanors (low-level offenses) while indictable offenses are like felonies (high-level offenses). A third category, hybrid offenses, are for a combination of the two. A conviction that is equivalent to a hybrid or indictable offense in Canada will prevent you from crossing the border. You will be required to request permission from the government to gain entry. One good example of the difference between US and Canadian law is a DUI conviction. While the US considers it a misdemeanor, it is classified as a hybrid offense in Canada. This means that a DUI will not bar you from entering the US, but it will prevent you from visiting Canada.

2 Typically, a summary offense will not prevent your entry. But multiple minor offenses will. This brings us to the second factor that can determine your inadmissibility – the number of offenses on your record. A single offense may declare you as already rehabilitated, especially if a long time has passed. The more offenses and arrest records you have, the lesser your chances are of gaining entry.

3 The third factor that will affect the border official’s decision is how much time has passed since you completed your sentence. This also determines the type of application you will be required to apply for in order to be granted permission to enter Canada.

4 The fourth factor is age. Individuals convicted of a crime when they were a minor (under 18) may be granted entry into Canada provided they do not fall into one of the categories mentioned below:

  • You were convicted in adult court in a country with a system that includes special considerations for young offenders.
  • You were convicted in a country with a system that does not include special considerations for young offenders, but the circumstances of your conviction would have resulted in you being tried as an adult in Canada.

Crimes that make inadmissible to the US

Crimes that make you inadmissible
Committing, even conspiring to commit, can be sufficient enough reason for inadmissibility.
The list of crimes that will prevent you from being granted entry into the US is very long and complex that it will be difficult to name and explain them all. For this reason, the list provided below is merely a general description of the most common offenses and convictions that will make you inadmissible to the US. It is important to note that a conviction is not necessary for you to become criminally inadmissible. Committing, even conspiring to commit, can be sufficient enough reason for inadmissibility.

 

  • Crimes of moral turpitude that you committed or were convicted of when you were 18 or older. Moral turpitude is generally defined as

    an act that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.

    U.S. Citizenship and Immigration Services

    Examples include murder, manslaughter, theft, prostitution or commercialized vice, rape, and fraud.

  • Human trafficking
  • Money Laundering
  • Drug trafficking.
The spouse, son, or daughter of a drug trafficker who has benefited financially or otherwise from that criminal activity and reasonably should have known about where the benefit/s were coming from is considered inadmissible.
  • Drug possession
  • Multiple criminal convictions which are not purely political offenses and have resulted in five or more total years in prison.
An individual who has committed or been convicted of only one crime involving moral turpitude will be exempted from being deemed inadmissible if he or she falls under one of the following exceptions:
  • Juvenile Offense Exception: he or she was under 18 at the time, and the offense occurred more than five years from the date he or she tried to enter the US.
  • Petty Offense Exception: when the maximum punishment for the offense is not more than one year. And, if the individual was sentenced to imprisonment, the term should not be more than six months.

One DUI conviction will not make you inadmissible to the US even if this type of crime carries more weight in Canada. However, multiple misdemeanors may prevent you from entering without a special permit.

To learn the entire list of crimes that bar you from entering the US, you can read the entire Immigration and Nationality Act here or the overview here.

US and Canadian crime equivalents

Consult a lawyer that practices Canadian immigration law to help you determine equivalent offenses

To find out the equivalent of a US criminal offense under Canadian law, you will need to look it up in the Criminal Code or the Controlled Drugs and Substances Act. It is highly recommended that you consult a lawyer that practices Canadian immigration law to help you determine equivalent offenses.

That being said, below are some common offenses in the US that are considered hybrid offenses in Canada. Generally, any individual who has committed or been convicted of a hybrid offense will not be automatically deemed rehabilitated until ten years have passed since the date of the completion of the sentence. In addition, he or she will only be able to apply for rehabilitation five years after the completion of his entire sentence (including probation). Some hybrid offenses in Canada include:

  • Driving under the influence (DUI)
  • Assault
  • Theft
  • Fraud

Pardon & Expungement

A pardon and an expungement are two different things.

Difference of Pardon and Expungement
A pardon gives “legal forgiveness” to an individual convicted of a crime. It nullifies the original sentencing and ensures that the individual will not receive any further punishment for the crime. The criminal record, however, does not get erased. An expungement, on the other hand, seals the court records on the conviction. This basically states that the crime never happened.

A pardon or an expungement granted outside of Canada does not mean that you are not inadmissible. You may still be deemed “criminally inadmissible” depending on the nature of the offense and how it is perceived under Canadian law. If you have an expungement, you have the legal right to not disclose your record to a prospective employer. This, however, does not apply to the Canadian immigration process. The fact that the offense exists should still be relayed to border officials.

You must be able to give all the details regarding the charge, conviction, and pardon/expungement as well as copies of the court proceedings and applicable sections of foreign law. This will enable the border official to determine if you are able to enter Canada or not.

Inquire with the Visa Application Centre (VAC) serving your location, if you wish to check the validity of your foreign pardon or expungement in Canada before you travel.

Similar to Canada, the US does not recognize foreign pardons and expungements. However, a pardon may aid you in proving rehabilitation to the border officials. An expungement of a record may be used to overcome inadmissibility if it falls under the Juvenile Offense Exception or the Petty Offense Exception.

Resolving inadmissibility to Canada

To Canada for crimes committed abroad

Individuals with a criminal record can still be permitted to enter Canada provided they are able to overcome their criminal convictions. There are several ways to do this, and your choice will be dependent on the factors we previously mentioned as well as your behavior since the conviction.

Deemed Rehabilitation

One option is to be deemed rehabilitated under Canada’s immigration law. This will be determined by a Canadian immigration officer, and his or her decision will be based on certain factors:

  • the crime you committed
  • the gravity of your crime
  • how much time has passed since the entirety of your sentence has been completed
  • if you have committed any other crimes.
For indictable offenses, ten years should have already passed. For two or more summary convictions, it’s five years.In all cases, this option is only open to crimes done outside Canada that has a Canadian equivalent offense with a maximum prison sentence of less than ten years. If you are deemed rehabilitated, your inadmissibility will be permanently resolved.

Individual Rehabilitation

Another option for overcoming inadmissibility is to apply for rehabilitation and get approved. If you get approved, you will be able to permanently resolve your inadmissibility, allowing you to travel in and out of Canada as long as you are not convicted again.

So, what is rehabilitation? It means that you are now living a stable life and there’s a very little possibility that you will commit any crime in the future. You are eligible to apply for rehabilitation if you fall under one of these categories:

Category 1
  • You were convicted outside of Canada
  • The offense is considered an indictable offense punishable by a maximum prison sentence of less than ten years
  • Five years have passed after the imposed sentence has been completed.
Category 2
  • Your offense was committed outside of Canada
  • The offense is equivalent to an indictable offense if committed in Canada that is punishable by a maximum Prison sentence of less than ten years
  • Five years have passed since you committed the offense
Category 3
  • you were convicted of an offense or committed an offense outside of Canada that is punishable by a maximum prison sentence of ten years or more if you had committed it in Canada.
  • five years have passed since the sentence was completed or since the crime was committed.
  • How do you determine the date when you will become eligible to apply for rehabilitation? Calculating the five-year waiting period will depend on the sentence that you get. Below are a few examples.
  • If you get a suspended sentence, your count starts the day you were sentenced.
  • If you get a fine along with the suspended sentence, you need to count five years from the day you paid the fine. If the payment is made on multiple days, the last day of payment is the date you start counting.
  • If your sentence is probation, then the rehabilitation period will start on the day your probation ends.
  • If you get imprisonment with parole, the day your parole is completed is the date you should start counting.

Temporary Resident Permit

If it has been less than 5 years since your sentence was completed, you can apply for a temporary resident permit. This is to allow you to temporarily enter or reside in Canada but it does not permanently resolve your inadmissibility. In order to get this permit, you will need to provide a valid reason to be in Canada. The border official would be the one to decide if your need to enter Canada is greater than the risk to the health and safety of Canadian society.

The TRP is typically only good for the length of your stay in Canada and will no longer be valid once you leave. You will need to leave on the date the permit expires or apply for a new TRP before the expiry date.

A new policy on criminal inadmissibility waives the fee for the application if the individual meets the following criteria:

  • convicted of an eligible offense listed in Section 36(2) in the Immigration and Refugee Protection Act. Convictions for child pornography or a sexual offense as well as serious criminal offenses defined under Section 36(1) are not eligible offenses.
  • did not serve any jail time
  • has done no other acts that will prevent their entry into Canada
  • is not considered inadmissible for any other reason

To Canada for crimes committed in Canada

If you committed or were convicted of a crime in Canada, you can request for a record suspension from the Parole Board of Canada (PBC) in order to permanently resolve your inadmissibility under the Criminal Records Act (CRA).

What is a record suspension? It removes your criminal record from the Canadian Police Information Centre (CPIC) database. This means that it won’t be searchable anymore on that database. What it doesn’t mean is that the record has been erased; it’s just that access to it has been restricted.

To find out if you are eligible to apply for a record suspension, use this self-assessment tool provided by the Canadian government.

For a record suspension guide or more information about this process, you can contact the PBC using the details listed below.

  • Address: Clemency and Record Suspension Division, 410 Laurier Avenue West, Ottawa, Ontario K1A 0R1
  • Telephone: 1-800-874-2652 (Callers in Canada and the United States only)
  • Fax: 1-613-941-4981
  • Website: http://pbc-clcc.gc.ca/index-eng.shtml

If you have convictions inside and outside of Canada, you will need to apply for a record suspension first and get approval before you can apply for rehabilitation to overcome your inadmissibility. If you only have one summary offense in Canada, you can submit your application for rehabilitation without obtaining the record suspension provided that you have sufficient proof that you have already applied for one with the PBC.

Resolving inadmissibility to the US

Canadian citizens who are inadmissible to the US may be able to apply for a temporary waiver of inadmissibility which will allow them entry into the country, despite the fact that they have a criminal record. You can submit your waiver application at a Port of Entry or a pre-clearance facility in Canada. Please note that not all Ports of Entry are able to process waiver applications.

The process can take a while, up to a year, and will require you to pay a fee of US$585 (in US funds) for each application, no matter what the result is. Your payment should be a certified check will be drawn from a US bank and made payable to US Customs and Border Protection.

To determine if you should be granted a waiver, the US government will be looking at three factors:

  • any risk of harm to US society
  • The seriousness of your offense/conviction
  • Your reasons for wishing to enter the US

Your waiver application should include the following documents:

  • Form I-192 completed and signed by you
  • U.S. Fingerprint chart FD-258 that will be taken by a US CBP Officer.
  • Form G-325, completed and signed by you.
  • A criminal check from the Royal Canadian Mounted Police (RCMP) using fingerprints you submitted through Form C216C.
  • A copy of the court records
  • Evidence of citizenship
  • A detailed statement written in your own words outlining the circumstances of your arrest, conviction, and sentence.
  • Evidence of your rehabilitation or reform (i.e. current employment, completed counseling or rehabilitation programs, community service, character references)
  • A statement that explains why you wish to enter the US (e.g. business, vacation, etc.)
  • Documents that support your reasons for wishing to enter the US.

It is important that you contact the nearest POE or Preclearance office to confirm the necessary paperwork you will need to apply for a waiver. The documents required may vary depending on your case.

Since the waiver application process can be lengthy, the US government can grant temporary entry to an individual if he or she has urgent humanitarian reasons (serious illness or death of a close relative) or provides significant benefit to the public. This is called the humanitarian parole. Generally, an individual has a very high burden of proof to make his or her case before it will be granted.

Crossing the Canadian border with DUI

If you have a DUI (or any variation of it) in your record, you are criminally inadmissible to Canada. Driving under the influence of drugs or alcohol is considered a hybrid offense in Canada. This means that it could be tried as an indictable offense or a summary offense. Because it has the potential to be tried as an indictable offense, individuals with this kind of conviction are automatically denied entry for at least ten years unless they are “deemed rehabilitated” or provided with a Temporary Resident Permit.

To be deemed rehabilitated, you must prove to the border official that you meet the criteria set for deemed rehabilitation. To obtain a TRP, you must provide the official with a compelling reason for you to be allowed entry such as work.

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