Are you considering travel to Canada for business or recreation? If so, you should be aware that with heightened security and enforcement at the border, a trip to Canada is becoming increasingly difficult, especially for individuals with a history of criminal charges. The Canadian Government excludes certain non-Canadian citizens from entering Canada if they deem them members of an “Inadmissible Class.”
Many convictions in the U.S., including for driving under the influence of alcohol (“DUI”), driving while intoxicated (“DWI”), reckless driving, and negligence, can make a person inadmissible for entry into Canada. Inadmissibility is determined by comparing the elements of the crime in the U.S. with the elements of the corresponding Canadian criminal offense. Also, offenses such as shoplifting, theft, possession of illegal substances, and unauthorized possession of a firearm will trigger inadmissible status. Felony criminal convictions will also create an inadmissible status.
Canada regards DUI/DWI as extremely serious offenses. A conviction for DUI or DWI will place an individual in an “Inadmissible Class.” Those with such convictions will not be allowed to enter Canada should a border official become aware of the prior criminal conviction.
For individuals who have traveled smoothly back and forth to Canada in the past, being unexpectedly refused entry at the border can be frustrating and embarrassing. It can also be quite costly if a business is unable to effectively service its Canadian customers when key personnel are barred entry into Canada due to a prior criminal background.
In order to increase the chance of being granted entry into Canada, individuals with a history of criminal convictions or a pending prosecution should be prepared in advance of entry. For example, they should be made aware of the initial risk that the border officer will ask about prior criminal charges.
Generally, border officers use a random process in choosing whether to question a person entering Canada regarding their criminal background. Not every single individual seeking entry is questioned, but there is certainly a substantial risk that questioning may occur. If questioning does not occur, an individual should not volunteer any information about prior convictions or pending criminal charges.
If questioned by a border officer about criminal matters, an individual should provide honest and direct answers since border officers usually have immediate access to all state and FBI criminal records at the time of the crossing. Further, if questioning does occur, it is likely because criminal background information had been previously relayed to the border officer.
Honesty is the preferred policy, since it is much easier for an individual to overcome inadmissibility due to criminality than due to misrepresentation. If denied admission, an individual should voluntarily withdraw his or her application to enter Canada; withdrawal will avoid having to face a removal or exclusion order, which may be very difficult to overcome.
Second, while individuals should answer honestly about criminal matters, they should not provide specific details about pending charges. For example, an individual who provides sufficient information to a border officer about a pending DUI case can be denied entry even though not convicted.
An individual who is barred from entry into Canada, has four possible options:
- a temporary resident permit;
- a criminal rehabilitation;
- being deemed rehabilitated; and,
- an expungement of the conviction.
There are two routes to obtaining a temporary resident permit. First, an individual can appear at the border and apply for one if denied entry due to a conviction. Border officers have wide discretion in granting or denying such an application. The advantage of an application at the border is that it generally requires less paperwork. Such a permit is generally valid for a single entry. An individual who desires to obtain a multiple entry permit or wants assurance ahead of time that they will be allowed into Canada can apply for a temporary resident permit at a Canadian consulate in the U.S.
If more than five years have passed since the completion of an individual’s sentence, he or she can apply for criminal rehabilitation. This process generally takes around a year, but will permanently resolve the individual’s admissibility to Canada. The paperwork required for a temporary resident permit or an application for criminal rehabilitation can be quite extensive.
If more than ten years have passed since the completion of an individual’s sentence, he or she can be “deemed rehabilitated” at a port of entry to Canada. This is not a formal application process but is assessed by immigration officials at the border. Rehabilitation does not happen automatically after ten years. If an individual was eligible for rehabilitation at ten years but obtains another conviction later, that person would now have two convictions and would not be admitted for entry into Canada.
Finally, under some circumstances, it may be easier and faster to facilitate entry to Canada to bring a motion to vacate and expunge a conviction in the U.S. Because a DUI conviction cannot be vacated, expungement would only work for other criminal charges. Canadian officials will generally treat an expungement as the equivalent of no conviction.
Berry Moorman P.C. can assist you or your business in helping overcome inadmissible status into Canada. Our firm also offers a wide range of U.S. and Canadian immigration services, including work permits and work visas (green cards), student visas, investor visas, marriage and family based visas, as well as handling asylum cases and removal orders.
Should you have any further questions regarding inadmissibility to Canada, or any questions related to Canadian or U.S. immigration, please contact Scott D. Relf at 248-645-9680.