Crossing the Border with Old Convictions

Rosanna Berardi for The Lawyers Weekly

August 20, 2010

Gone are the days of simply stating one's citizenship and entering the U.S. The Western Hemisphere Travel Initiative (WHTI), now in effect, requires all travellers to present a passport or other document that denotes identity and citizenship when entering the U.S.

Foreign nationals' passports are swiped against a comprehensive database that reveals criminal and immigration violations throughout the world. Many foreign nationals, who have crossed the border dozens of times without incident, now find they are inadmissible to the U.S. due to an old criminal conviction.

Foreign nationals are often shocked to learn they are no longer able to enter the U.S. to vacation, shop or work due to a criminal conviction that may be over 25 years old. In general, the U.S. Immigration and Nationality Act (INA) deems inadmissible those individuals convicted of committing, or having admitted to committing, crimes involving moral turpitude (CIMTs). Seemingly minor offences can become big challenges, since even a single CIMT can trigger inadmissibility. The INA regulations do not acknowledge foreign pardons, so even if a conviction has been fully pardoned in Canada, it remains on a foreign national's record at the international border crossings.

While no comprehensive list of CIMTs exists, there are general categories into which these crimes typically fall. The most common elements involving moral turpitude are: fraud, larceny and intent to harm persons or things. However, even within these elements, the case is rarely clear.

For example, burglary is considered to be a CIMT, while breaking and entering is not. Likewise, fraud is considered to be a CIMT, but passing "bad cheques" is not. Major crimes such as kidnapping, rape, prostitution and murder are all clearly CIMTs.

If a foreign national has a conviction for a CIMT, he or she has two options: 1) obtain a non-immigrant waiver, which is a document issued by the Department of Homeland Security which acknowledges and waives the underlying criminal offense; or 2) investigate whether the underlying conviction falls under the limited "Petty Offence Exception" of the INA.

While it sounds easy enough to obtain a non-immigrant waiver, think again. Processing times for such waivers are currently in excess of nine to 12 months and the government processing fee is US$545. In addition, some waivers are only issued for one year, which requires multiple applications to be filed.

If an underlying conviction is old, it is critical to determine whether it qualifies under the "petty offence exception" of the INA. If a conviction is deemed a petty offence, then the foreign national is not required to obtain a waiver and can enter the U.S. with appropriate documentation. To qualify under the petty offence exception, the foreign national must prove: 1) he has only one conviction and it is unrelated to substance abuse; 2) the sentence imposed for the crime is not more than six months in jail; and 3) the maximum penalty for the particular crime does not exceed one year in jail.

For example, a Canadian citizen may have one conviction for false pretenses under the Canadian Criminal Code which relates to the possession of stolen property. The Canadian was convicted summarily by the Crown and was given a conditional discharge and one year of probation. A conviction for false pretenses is generally held to be a CIMT.

However, such offences are deemed summary convictions, which result in a maximum sentence of imprisonment of six months. Because of this, such offences would qualify under the petty offence exception of the INA. As such, this Canadian citizen would not require a non-immigrant waiver and would be admissible to the U.S.

The implementation of WHTI has not only affected documentary requirements at the border. It has also impacted the criminal law system in Canada and throughout the world. Criminal defense lawyers must consider the immigration consequences of a criminal conviction. It is not enough to think that avoiding jail time will insure your client's entry to the U.S. Rather, a lawyer must analyze the conviction to determine if it is a CIMT and whether it meets the criteria for the petty offence exception.

The INA is a complex and confusing body of law. Don't gamble with your ability to cross the border.

Rosanna Berardi, managing partner of Berardi Immigration Law, is a former INS Inspector and INS Trial Attorney in Buffalo, NY and New York City.

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