Can you cross the border if you have a criminal record? In this interview, Canadian and US immigration lawyer Andy Semotiuk tells you what you need to know if you have a criminal record and want to come to Canada or the United States. Watch the video or read the transcript below.
SB: Andy, we talked last time about DUI or drunk driving convictions and how that can be a hassle for people trying to get back and forth across the US-Canadian border. Let’s talk today about criminal convictions, period. Let’s say there’s someone from anywhere in the world who wants to get into the United States but they have a criminal record in their place of origin, how does the United States treat that?
AS: Generally, it depends on the nature of the offense. So, there are some offenses that are so-called petty offense exceptions to inadmissibility which means that if you’re convicted of such an offense, it should not be a problem for you to enter the United States. Let’s take an example of a Canadian who may have been involved in a common assault, who’s convicted of a common assault. That may be an example of someone who doesn’t really need to worry about going to the United States. That’s something that they can take an exception to through this petty offense exception.
AS: Another example is actually a DUI going southbound, one DUI. They don’t really get excited about one DUI if you’re just going for a visit or some business purpose to the United States. So those are the basic sort of exceptions to the general rule. The general rule is, of course, if you’ve got a criminal conviction, you’re inadmissible, then the question is, can you get a waiver of some kind? And that’s when we have to deal with more serious offenses.
SB: So, if you’re talking a more serious offense, a little more than petty crime, they need a waiver. Talk to me about the waiver. Let’s say, okay, someone may have an aggravated assault or something like that, something more than common assault. He comes to you and says, “Look, I really want to go down and see my sister in the US.” And you’d say?
AS: Yes, it’s possible. The only offenses that may not be possible are controlled substance offenses like drug trafficking. And even then there’s a little exception for up to 30 grams of marijuana. So, you can have some marijuana up to 30 grams and be convicted of it. But if you were convicted once of having marijuana, if it was a small amount, you could still get a waiver, you’d still be entitled to a waiver for these other offenses you mentioned such as aggravated assault or whatever, these are capable of being waived if the circumstances are right. And among the things that they consider are the nature of the offense, how long it’s been, things of that nature.
SB: But if someone’s convicted of a major league crime, murder, major trafficking of drugs, things like that, the chances of getting into the US, zilch?
AS: Yeah. It depends on the nature of the offense. Trafficking, definitely out. Treason, serious crimes of that nature, probably out. There may be some chances for someone who may have been convicted many years ago of a less serious offense but still sort of like of the kidnapping or some kind of that type of an offense, let’s say 20 years ago or 30 years ago, if they can show rehabilitation, and then there’s a bit of a formula that they go through to decide whether to grant the waiver or not.
At The Border
SB: How does it work at the border? You show up at the border, you’ve got this major offense, do they try and help you out to get this waiver thing done or do they just say, “Look, you’ve been convicted of a major crime. You’re not coming in. Get lost.”
AS: Well, the way it works is you don’t just enter the United States. You come down with this package of information that you have to give to them including things like fingerprints, court records from where the offense occurred, police clearances or a police record at least, say, from the RCMP in Canada. There’s a pile of documents, reference letters, things of that nature that you have to bring down. And then they take that package, they fingerprint you, they take a payment from you and they send it to a center that actually does the processing and decides whether you should be allowed into the United States or not. And then you get a letter back from them saying, “Okay you have a waiver,” or “No, you don’t have a waiver.”
Sneaking Over The Border
SB: What about the person that shows up at the border thinking they’re going to pull a fast one and decides to say that they’ve never been convicted of an offense, and they’re just going to quietly get over the border. They get caught at the border that they do have a criminal record in their past. What happens to that person?
AS: Well, they’re in expedited removal proceedings right off the bat, and it’s even possible that they could be convicted of an offense and imprisoned. An example of that would be someone who’s carrying marijuana on them if they’re trying to get across the border, some crime of that nature. But it’s not a good idea to try and sneak across the border nor is it a good idea to try and sort of deny that you have a criminal record because the databases that they have will almost certainly uncover any criminal record that you’ve had from long ago, 30 years ago, 20 years ago. It’s a very effective system.
Can You Go Back?
SB: Last one, and this may be a curve ball because I didn’t talk to you about it beforehand, but Conrad Black, say, and guys like this that are big in the news, he was imprisoned, I think he was imprisoned in Florida but he was on trial in Chicago or Illinois. Now, he’s back in Canada. Can he go now back to the States or does that record from the States say that, now that he’s paid his debt to society in the States, can he go back?
AS: He would need a waiver.
AS: And among the considerations are the nature of the offense, the risk to harm in the United States, how long it’s been since the offense occurred, what was the disposition, these type of factors go into a decision as to whether he would be allowed back in or not. And it would take some time for that waiver to be decided, probably a year or so.
SB: Either way no matter what, sounds like immigration lawyer if you’re thinking about trying to get over the border.
AS: Oh yeah, for waivers you definitely need legal advice.
SB: There you go, okay. Andy Semotiuk, contact him , paceimmigration.com and also find us on Facebook and Twitter, and we’ll see you next time, bye.