Seven Fallacies About Criminal Offences And U.S. Immigration Law

There are a variety of grounds of inadmissibility to the United States including criminal activity, health, national security, public charge, lack of labor certification (if required), fraud and misrepresentation, prior removals, unlawful presence in the United States, as well as several miscellaneous categories. But today we are only going to focus on the area of criminal admissibility. We will deal with seven fallacies about inadmissibility to the United States.

Fallacy Number 1 – Having A Criminal Conviction Makes You Inadmissible To The United States.

Being found guilty of a criminal offense does not necessarily make an applicant inadmissible to the United States. Not all convictions for offences are even subject to inadmissibility—only crimes of moral turpitude and aggravated felonies are capable of leading to inadmissibility. Even then, the mere fact they amount to such a crime does not necessarily lead to excludability. Take for example a single common assault, or a single Driving Under the Influence (DUI) conviction. In such instances, even if they are regarded as crimes of moral turpitude they are subject to Petty Offence exception to inadmissibility.

To qualify for the petty offense exception, you must show that:

• You have committed only one Crime Involving Moral Turpitude at any time, ever.
• The conviction carries a maximum possible sentence of one year or less.
• You were not sentenced to a term of imprisonment any longer than six months.

Fallacy Number 2 – The Way To Rid Yourself Of U.S. Excludability Is To Apply For A Canadian Pardon For Offenses.

A record suspension, or a pardon, allows people who have been convicted of a criminal offense and completed their sentence to have their criminal record removed from the Canadian Police Information Centre (CPIC) database. But this does not mean that the criminal record will be deleted. It only means that when someone searches for that person’s criminal record on the CPIC database, no criminal record will be found. However, because the United States and Canada share criminal databases, the old Canadian criminal record remains accessible to U.S. border officials and will prevent an applicant from entering the U.S. without getting a waiver.

Fallacy Number 3 – Getting A New Passport Will Solve The Problem.

Getting a new passport, even under a new name such as obtaining a passport under the name of a spouse following a marriage will not protect an applicant from excludability either. The reason for that is that a passport is only an identity document and if someone is convicted of a criminal offence they will likely have been fingerprinted and a fingerprint check at a preclearance booth at a U.S. port of entry will disclose the previous offence and lead to disqualification. Furthermore, any attempt to hide behind a new name to purposely throw U.S. Customs and Border Protection (USCBP) officers off the trail to identify an applicant’s previous criminal history will likely lead to a five-year bar to entry based on their misrepresentation to the officers involved.

Fallacy Number 4 – Criminal Offences Not Detected On Previous Trips To The U.S. Mean I am Safe

Sometimes someone who has travelled to the United States many times in the past is surprised to find out that suddenly they are no longer admissible because it seems like a U.S. official has almost pulled a rabbit out of a hat in finding that old conviction that the applicant thought had been lost until then. For example, this could be the result of delays in merging all the information in the criminal databases of both the U.S and Canada thereby finally making it possible for border officers to access a previous record. Previous entries into the USA do not erase the criminal record of an applicant and do not justify relief from a bar to entry based on previous favorable treatment at the border.

Fallacy Number 5 – I can Travel Through the U.S. As Long As I Do Not Stay In The Country

Travelers sometimes assume that they do not need to worry about a U.S. waiver if they are merely travelling through the U.S. and will not actually be staying there. But that is a false assumption. Any kind of entry into the USA requires the applicant to deal with any inadmissibilities he or she may have and especially criminal inadmissibilities.

Fallacy Number Six – Biden has removed convictions for possession of weed?

President Biden’s policy has not yet been put into practice at the federal level and in addition, there are many states that still have convictions for possession of marijuana entered in their records as criminal offenses. Over time the federal convictions are expected to be erased, but that still leaves the state convictions. Biden has encouraged state governors to follow his lead on this question but not everyone has joined in the effort so far. For the foreseeable future, it is still a good idea not to admit to any previous possession of marijuana.

Fallacy Number Seven – I have a conviction on my record so I cannot travel to the USA even for emergencies.

That is not true. In some emergency circumstances, even if you have a criminal record you can get permission to come to the United States. Much depends on the kind of emergency and it is not easy to get such permission. Getting married or being offered a new job are certainly not such exceptions. However, it may be possible to get the Director of a Port of Entry to approve a Director’s Parole to enable someone to enter the United States to be with someone in a hospital who is dying if they are a close family member or for example for a father to be by his wife for the birth or their child in a circumstance where otherwise they could not have applied. The circumstances dictate whether such permission will be granted.