Criminal grounds for admissibility to the United States

During my years in practice, I have had occasion to represent persons who have problems with inadmissibility to the US on criminal grounds.  This article only covers those grounds.  However, other grounds include those relating to health issues, proper immigration documents, misrepresentation--(see s.  212(a)(6)(C))--or immigration offences.  Certain criminal exclusionary grounds do not require actual prosecution or conviction.  They involve suspected drug trafficking--(see s. 212(a)(2)(C))--suspected terrorist activity, former Nazi activity, and prostitution-related intentions or activities.  To see all the exclusionary grounds, go to s.  212 of the Immigration and Naturalization Act..

This article only covers situations involving prior records.  However, even without a prior record, a person will not be admitted to the US if a Department of Homeland Security, formerly, Immigration and Naturalization (INS) officer knows or reasonably believes that a person seeks entry to engage solely, principally, or incidentally in any unlawful activity.  See the IMMIGRATION AND NATIONALITY ACT s.  212(a)(3)(A),
Basics of Exclusionary Grounds:    Under s.  212(a)(2)(A), other than for political offences, a person is not admissible to the US if he or she
1.            Has been convicted of or admitted to committing a crime of moral turpitude,
2.            Has been convicted of or admitted to a violation of any country's laws relating to controlled substances, including simple possession of any amount, or
3.            Under s. 212(a)(2)(B) if the person has been convicted of two or more offences, regardless of whether they arose out of the same set of circumstances and regardless of whether any moral turpitude was involved, when the aggregate sentences involved confinement for five years or more.
It is important to note that all exclusionary grounds are lifetime bans, unless otherwise provided.  However, a lifetime ban does not necessarily stop a person from getting a waiver of his or her exclusionary grounds.  Thus it is still possible for an individual to visit or immigrate to or even become a citizen of the United States.
Canadian Pardons and Discharges:    The US does not recognize pardons from other countries.  A Canadian pardon, except perhaps a free pardon-- for these purposes means absolutely nothing.  Canadian discharges, on the other hand, are an interesting problem.  As a matter of Canadian law, although a discharge is considered a finding of guilt, it is not a conviction.  However, the Immigration and Naturalization Act provides a different definition and any discharge might be considered a basis for exclusion from the US:
Definitions s 101 (48)(A) The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where-
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.
It appears that Homeland Security considers a conditional discharge the equivalent of a conviction, but an absolute discharge is not.  Thus a discharge involves an adjudication of guilt being withheld, and since a conditional discharge involves some form of punishment, it is considered a conviction.  

What is a crime of moral turpitude?:    A crime of moral turpitude would include such crimes as fraud, theft, housebreaking, kidnapping, robbery, murder, arson, forgery, rape or sexual assault.  Certain other crimes are not crimes of moral turpitude, for instance, impaired driving.  Crimes such as simple assault, causing a disturbance or joyriding are not crimes of moral turpitude.  Even manslaughter, in most instances, is not a crime of moral turpitude.  An individual convicted of such a crime is not excludable as long as he or she has no other convictions or his or her total sentences do not exceed five years.  However, where an offence involves some element of reckless conduct, such conduct may constitute a crime of moral turpitude.  Close examination of the statutory provision is necessary, but in Canada these may include dangerous driving and criminal negligence causing death.

Single crime exception-crimes of moral turpitude:  See s.  212(a)(2)(A)(ii) The single crime of moral turpitude exception applies when the offence is punishable by a year or less and the sentence imposed does not exceed six months.  Another single crime exception applies to offences committed when a person is under the age of 18 as long as five years has elapsed from the date the sentence was completed.  The single offence exception does not appear to apply to convictions for two or more offences, even when they arise out of the same incident.  The single crime exception does not apply to drug convictions at all.  However, it is not clear whether an individual may be entitled to both exceptions, that is, one minor crime and one crime committed under the age of 18 years.
Is a 12-month conditional sentence the same as 12-months in jail?:    In some instances--in calculating if an individual has received total sentences of five years for offences including other than crimes of moral turpitude--this question might have to be answered in order to determine if a person is inadmissible.  We find this definition in the Immigration and Naturalization Act: 
Definitions s. 101 (a) As used in this Act-
(48)(B) Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.
Under the Criminal Code, a judge may impose a term of probation or a conditional sentence.  A term of probation does not involve any term of imprisonment and no term of imprisonment is suspended thereby.  The term in a probation order is the term of probation, not the term of imprisonment suspended. 

In 1996, Canada introduced conditional sentences.  It allows judges, where the sentence would otherwise be less than two years, to imposed an alternative sentence to be served in the community.  In substance, a conditional sentence is more like a term of probation than a term in jail.  Although the Supreme Court of Canada has stated house arrest should be the rule for conditional sentences, it is not mandatory.  Moreover, house arrest is also an option for a term of probation.  The most important indicator of the substantive nature of the sentence is the pronouncement by the Supreme Court that a conditional sentence should normally be longer than an equivalent term in prison.  This clearly suggests that the length of a conditional sentence cannot be included in calculating the total period an individual's jail sentences.  Nonetheless, it appears the Department of Homeland Security views conditional sentences for these purposes as jail sentences.

Admissions of crime:    Under what circumstances does an admission of crime constitute a basis for exclusion?  Clearly the admission must be voluntary.  Here is an example of the issue of voluntary admissions.  Many persons crossing the border bring drugs with them.  For small quantities involving the possession of marijuana, US Customs officials normally do not institute prosecutions.  Instead an administrative penalty is imposed along with a demand that the offender sign an acknowledgment of responsibility.  For many years, the INS considered this equivalent to an admission, making the individual inadmissible.  That interpretation had some problems because such an acknowledgment would seem to be a matter of compulsion.  To my knowledge, Homeland Security no longer adheres to the view that such acknowledgments are admissions for these purposes.  That being the case and given the fact that Homeland Security does not exclude an individual who only has an absolute discharge, it is not at all clear what kind of admission of criminal responsibility would make a person inadmissible.  Some INS inspectors have used this provision after eliciting incriminating answers from prospective entrants.  Beyond that, it appears in many instances that an admission in a judicial setting--a statement made under oath or in open court--may or may not be included.  What is clear is that any admission to a US government official, particularly, a Homeland Security inspector, would qualify.  However, in my view, a simple statement made in other context would not.

Examples of Inadmissibility Problems

Canadian Client A:    Has a 1999 conviction for impaired driving ($500 fine) and one for a 1990 assault by summary conviction (6 months probation).  At the age of 17, she received an absolute discharge for marijuana possession after pleading guilty.  Client is admissible because she only has one crime of moral turpitude conviction and the single crime exception applies.  The absolute discharge is not counted as a conviction.

Canadian Client B:    In 1990 he received a conditional discharge--after pleading not guilty and having a trial--for marijuana possession.  Client is inadmissible because this counts as a conviction.

Canadian Client C:    In 1980 she was found guilty of manslaughter after a trial for first degree murder.  The sentence was eight years in jail.  Client is probably admissible because the Criminal Code definition of manslaughter is probably not a crime of moral turpitude.  However, a conviction for manslaughter, may arise in a number of circumstances.  For instance, a person who has no intention to harm, but only to commit an assault is guilty of manslaughter if the assault results in death.  On the other hand, a crime that might otherwise be murder could be reduced to manslaughter by reason of provocation or drunkenness.  Therefore, it may be necessary to examine how the verdict of manslaughter came about because one type of circumstance may amount to a crime of moral turpitude, but another might not.  In this example, assuming it is not a crime of moral turpitude, the five year total sentence provision applies only to multiple convictions.  Of course, an individual would not be admissible if he or she has a five-year-plus sentence for manslaughter coupled with any other conviction whether for a crime of moral turpitude or not and regardless of any additional jail sentence.

Canadian Client D:    He was found guilty of a 1995 sexual assault.  The prosecutor proceeded by summary conviction and D received two months in jail.  With no other convictions, client is probably admissible because the maximum sentence under the Criminal Code was six months by way of summary conviction.  However, the same prosecution by summary conviction today involves an 18 month maximum and the single crime exclusion would not apply.

Canadian Client E:    He was found guilty of a 1998 sexual assault.  The prosecutor proceeded by summary conviction and D received four months in jail.  When he was released he decided to appeal the conviction.  The conviction was overturned two months later at the same time leave to appeal was granted.  It appears that whether an appeal is out of time or not when launched, for US immigration purposes, the person stands convicted until the conviction is overturned.  In this case however, since the client's appeal was out of time--he only had 30 days--he needed leave to appeal.  Therefore, until the appeal was allowed, the case was not under appeal and he stood convicted.

Kim Campbell, former Prime Minister of Canada:    She told the press she had once used a controlled substance.  As Prime Minister, Kim Campbell would never have been refused entry to the US for this statement.  As a private citizen, her statement would probably not make her excludable anyway.
Note Regarding American Indians Born in Canada:    Persons who qualify under the definition of "American Indians born in Canada" cannot be excluded under these provisions.  However, to qualify they must have at least 50% American Indian blood and therefore spouses and children of such persons must qualify on their own.  American Indian blood simply refers to persons of native ancestry.

What You Need to Know When Crossing the Border
Questions at the Border:    INS inspectors may question persons seeking entry into the United States.  Questions may relate to an individual's past criminal record.  Inspectors even have the authority to require the individual to submit to questions under oath.  Persons seeking entry to the United States should be very careful to answer questions in a truthful manner.  An untruthful answer may automatically create another ground of inadmissibility, namely excludability for misrepresentation.  See s. 212(a)(6)(C)).  A person might be questioned about whether he or she has ever been arrested or charged with a criminal offence.  If a person has been charged or arrested, but not convicted, he or she is not excludable from the United States.  However, if a person falsely claims he or she has not been arrested, that may be considered a material misrepresentation, regardless of whether that person was ever convicted of anything.  The test of materiality is that a material misrepresentation cuts off a line of inquiry that may lead to some substantive information concerning the person's admissibility or reasons for entry.
A person with any kind of criminal record should not attempt to cross the border without first determining whether his or her record is sufficient to bar entry.  However, even when no bar exists, persons seeking entry to the US need to be prepared to answer questions like the following:
Have you ever been arrested?
Have you ever been charged?
Have you ever been refused entry to the United States?

Questions That Do not Have to be Answered:    The US Constitution protects everyone, even persons without any immigration status, at least in respect of certain fundamental rights.  The protection against self-incrimination may arise in this context.  Thus, no one is required to admit to having committed a crime or even to answer questions that may tend to prove it.  One may simply say "I refuse to answer that question on the grounds that it may incriminate me."  However, a question about being arrested in the past or charged or refused entry to the US is not a question the answer to which might be incriminating.  This is only the opinion of the author, and it may be the case that the right to protection from self-incrimination does not apply in this circumstance.

Pending Charges:    INS inspectors have access to the Canadian Police Information Computer (CPIC) which includes details of pending charges.  Most INS inspectors will refuse to admit persons who have pending charges, even in the absence of any previous conviction.  In most instances this policy would be in error unless the officer knows or reasonably believes the individual in question seeks entry to engage solely, principally, or incidentally in any unlawful activity.  See s.  212(a)(3)(A), Nonetheless, it appears to be a common policy to refuse entry to persons with pending charges, at least if those charges, upon conviction, would make the person inadmissible.