Cross-Border Issues & Inadmissability
Canadians Inadmissible To The United States
Canadians, as well as other foreign nationals, wishing to enter the United States may be inadmissible and not allowed to enter the United States basically for four reasons:
- Immigrant Intent. The Canadian fails to establish to the satisfaction of the U.S. Immigration inspector that they will leave the U.S. after completion of their intended period of stay.
- Unlawful Presence. Unlawful presence refers to the period of time when a Canadian is physically present in the U.S. after the expiration of the period of authorized stay as indicated on their I-94 Document. It can also refer to those Canadians who are physically present in the United States without being admitted or paroled. This provision took effect on April 1, 1997, and the period of unlawful presence begins to accrue on that date. If the person is determined to be in the U.S. in unlawful presence for a continuous period of more than 180 days, but less than one year, and voluntarily departs the U.S. then that person is barred from reentering the U.S. for three years from the date of departure. A ten-year bar is applied when the person has been unlawfully present for a continuous period of one year and departs voluntarily.
- Immigration Violations. Canadians who have violated certain U.S. immigration laws, such as presenting false or misleading documents, or making a material or misleading statement to procure a visa or I-94 Document, are inadmissible to the U.S.
- Criminal Grounds. Canadians who have participated in, been convicted of, or appear as if they may engage in certain criminal acts that involve "crimes involving moral turpitude" may be inadmissible to the United States.
Crimes Involving Moral Turpitude
U.S. immigration law provides for the inadmissibility of persons who have been convicted of or admit to committing a "crime involving moral turpitude" (CIMT). A CIMT refers generally to conduct, which is inherently base, vile, depraved, or evil. It is an act contrary to justice, honesty, principle or good morals. It may be performed against a person, against property, or against society in general.
Often encountered CIMTs are: murder, kidnapping, incest, rape, arson, forgery, robbery, theft, fraud, assault (with a weapon, or with intent to commit CIMT), gross indecency, and possession of stolen property (with guilty knowledge). Conspiring or attempting to commit any of these crimes is a CIMT.
Often encountered crimes which are not CIMT's are: common assault, assault causing bodily harm, firearms violations, juvenile delinquency, gambling offenses, traffic violations, tax violations, passing bad checks, taking an auto without consent, immigration violations, mischief, smuggling and customs violations, and breaking and entering (unless "with intent" or "and theft").
Also, Canadians are not inadmissible if the crime was committed while under the age of 18 and if the crime was committed more than five years prior to the date of application for admission into the U.S.
Summary Convictions Under Canadian Criminal Law. A Canadian citizen who has a single conviction involving a crime of moral turpitude may not be inadmissible if the conviction was by "summary judgment" and not by "indictment." Under Canadian law, certain offenses may be treated by the court as summary convictions. A summary conviction in Canada carries a maximum term of imprisonment of six months. Therefore anyone with only one conviction, when it is a summary conviction for a CIMT, is not inadmissible to the U.S. This exception applies to only one CIMT conviction. If the person has more than one summary conviction, they are inadmissible and must apply for a waiver. It should be noted that the exception applies only to CIMT's and not to any type of drug convictions.
The burden of proof is always on the person to show that he is admissible. When it is known that the person has a conviction, they must provide evidence that the conviction was treated summarily. Acceptable proof of summary conviction will include a criminal record, showing the code section of a summary conviction, or court records showing that the alien was summarily convicted.
Absolute Discharge, Conditional Discharge, and Canadian Pardon. Absolute discharges for all crimes are not convictions for the purposes of U.S. immigration law. This includes all CIMT's and all drug-related charges as well.
Conditional discharges are convictions for purposes of U.S. immigration law, even though in the eyes of the Canadian government they are not convictions. This includes conditional discharges for all offenses, CIMT's and drug-related offences. Conditional discharges are granted for convictions handled both by summary conviction and as indictable offenses. So a conditional discharge for an indictable offense renders the person inadmissible, but a conditional discharge for a single CIMT offense convicted summarily will place the person within the exception, and the person is otherwise admissible. However, this exception does not apply to drug related offenses. So a conditional discharge for a drug related offense still renders the applicant inadmissible.
A pardon granted by the Canadian government has no effect on past convictions under U.S. immigration law. Consequently, persons who have been granted pardons by the Canadian government for convictions of crimes that would have made them inadmissible to the U.S. are still inadmissible and must obtain a waiver.
Waivers of Inadmissibility for Nonimmigrants
A person inadmissible to the U.S. may be eligible for a nonimmigrant wavier. U.S. Immigration follows three criteria to determine a waiver application: (1) the risk of harm to society if the person is admitted; (2) the seriousness of the person's criminal law or immigration law violation; and (3) the nature of the person's reason for seeking entry to the U.S. In general, a waiver will not be granted unless the person's criminal act that led to his inadmissibility occurred more than five years prior to the date of application for the waiver. However, exceptions to this general application can be granted under certain circumstances. The application generally takes about 6 months for processing.
