14/11/2022
Can You Enter the United States with a Misdemeanour? A Comprehensive Guide
The question of whether a past criminal record, even a seemingly minor one like a misdemeanor, can prevent you from entering the United States is a common concern for many international travellers. Both the US and Canada have strict border control policies, and a criminal history can indeed create significant hurdles. It's crucial to understand that border officers are not legal experts, and their interpretation of laws can sometimes be complex or even misapplied. Therefore, even if you believe your situation is straightforward, seeking clarity is always advisable.
The list of criminal acts that can render an individual inadmissible to the United States is extensive and can be intricate. While official resources from U.S. Customs and Border Protection (CBP) and U.S. Customs and Immigration Service (USCIS) are available, they may not always provide the definitive answers you need, especially if your case involves nuances. Consulting with an attorney specialising in immigration law is often the most effective way to determine your eligibility and potential challenges when crossing the border.
Understanding Inadmissibility to the United States
Several categories of criminal activity can lead to inadmissibility. It's important to note that in some cases, a formal conviction may not even be required to trigger these restrictions. The following are some of the primary reasons why an individual might be denied entry:
Crimes Involving Moral Turpitude
This is a broad category encompassing acts or behaviours that gravely violate a community's accepted moral standards. The definition is intentionally vague, making it crucial to understand common examples. Crimes of moral turpitude can range from minor offences like shoplifting to more serious crimes such as murder. The actual penalty imposed for the conviction is often less relevant than the nature of the crime itself. However, there are some exceptions:
- Crimes committed when the individual was under 18, provided they were released from custody more than five years before applying for entry or a visa.
- Crimes where the maximum penalty did not exceed one year of imprisonment, and the individual was not sentenced to more than six months.
Common examples of crimes involving moral turpitude include:
| Offence | Description |
|---|---|
| Passing Bad Checks | Issuing cheques with insufficient funds. |
| Assault | Causing bodily harm, with intent to cause harm, or with a weapon. |
| Aggravated Assault | A more severe form of assault, often involving serious injury or a weapon. |
| Sexual Assault | Any non-consensual sexual act. |
| Theft | Unlawfully taking another person's property. |
| Burglary | Unlawful entry into a building with intent to commit a crime. |
| Trespass | Entering property without permission with the intent to commit a crime. |
| Child Abuse | In certain circumstances, depending on the nature of the abuse. |
| Prostitution | Engaging in or facilitating commercial sex. |
| Human Trafficking | Forced labour or sexual exploitation. |
| Money Laundering | Disguising the origins of illegally obtained money. |
Controlled Substance Violations
Any violation related to controlled substances, as defined by the laws of any country, can lead to inadmissibility. This includes drug trafficking, conspiracy to traffic, and even a single offence of simple possession of a small amount of illicit substances or drug paraphernalia. It's important to note that even family members who have financially benefited from illicit activities, knowing the source of the funds, can also be affected.
Multiple Criminal Convictions
Convictions for two or more crimes, where the combined prison sentences total at least five years, can also result in inadmissibility. This applies regardless of whether the convictions stem from a single trial or a series of incidents.
Other Serious Offences
Certain other serious criminal activities can also lead to inadmissibility, including:
- Prostitution or commercialised vice.
- Serious criminal activity for which immunity from prosecution was received.
- Human trafficking offences.
- Almost any offence related to money laundering.
- Prior deportations without a proper visa. This is considered a serious felony and can lead to significant legal consequences.
Crimes That May Not Prevent Entry
Not all criminal convictions will automatically bar you from entering the US. Some offences are considered less severe or fall outside the definition of crimes involving moral turpitude. These may include:
- Single Crime of Moral Turpitude with Specific Circumstances: If you have committed only one crime of moral turpitude, and it meets the following criteria, you might still be admissible:
- The crime was committed before you turned 18, and more than five years have passed since the commission of the crime.
- The maximum sentence for the crime did not exceed one year of imprisonment, and you were not sentenced to more than six months.
- Minor Traffic Offences: Offences like failure to appear in court for minor matters, causing a public disturbance, common assault, and impaired driving (DUI/DWI) are not always considered grounds for inadmissibility, especially if they were dealt with by way of a fixed penalty and did not involve an arrest or court appearance. However, it's crucial to note that the US does not view DUI/DWI as leniently as Canada might, and multiple convictions for this or other misdemeanours could still lead to denial of entry.
- Offences Not Classified as Crimes of Moral Turpitude: Multiple convictions for offences that are not classified as crimes involving moral turpitude generally do not block entry.
Acquittals and Non-Convictions
Even if you were arrested or charged with a crime but were never convicted, or if you were acquitted, this information will likely still appear on your criminal record. U.S. Customs and Border Protection has access to this information. If a border agent has concerns about anything on your record, even without a conviction, you may still encounter difficulties entering the United States.
Pardons and Expungements: A Different Approach
Canada and the United States do not generally recognise each other's pardon and expungement policies. This means that an expungement of a Canadian offence will not erase that conviction for U.S. immigration purposes. While a Canadian pardon might serve as evidence of rehabilitation for a U.S. waiver request, it does not negate the inadmissibility itself. Furthermore, the U.S. often treats a Conditional Discharge as a conviction, and even withdrawn charges can remain in law enforcement databases and cause issues at the border. It is advisable to be prepared to provide proof of withdrawal for any charges that were not pursued.
Admitting to Drug Use or Arrest at a U.S. Port of Entry
Be extremely cautious about what you say to U.S. border officials. Admitting to drug use, even if you were never arrested or convicted, can lead to inadmissibility. For example, if asked if you have ever smoked marijuana and you answer "yes," and the officer believes this indicates you may have committed an offence, you could be denied entry. This applies even if there is no formal record of an offence. Similarly, prior public acknowledgements of illegal drug use that find their way into law enforcement databases can also cause problems.
It is vital to remember that U.S. state laws can differ significantly from federal laws. U.S. Customs and Border Protection officers enforce federal laws. The legalisation of marijuana in some U.S. states does not change federal law or CBP's stance on drug possession or use. Admitting to drug use can lead to being turned away, and being caught with marijuana can result in arrest.
Police Reports and Travel Plans
Access to Canadian criminal record databases means that U.S. Customs and Border Protection can view police reports, even those where no charges were filed. This can include reports from medical emergencies like suicide attempts or traffic accidents. If you suspect your name might appear in a police report, it is prudent to contact your local police, the RCMP, and/or CBP before travelling to the U.S. to confirm you won't face issues at the border.
Frequently Asked Questions
Q1: Can I travel to the US if I have a minor traffic ticket?
A1: Minor road traffic offences that were resolved with a fixed penalty, without an arrest or court appearance, generally do not prevent you from travelling under visa waiver programs. However, if you were arrested or convicted, you will likely need to apply for a visa from the U.S. Embassy before travelling.
Q2: What if my misdemeanor conviction was a long time ago?
A2: The passage of time can be a factor, particularly for crimes of moral turpitude committed before the age of 18, provided certain conditions are met. However, for many other offences, the recency of the conviction is less important than the nature of the crime itself.
Q3: Does a pardon in Canada mean I can enter the US without issues?
A3: Generally, no. Canada and the U.S. have separate systems for pardons and expungements. A Canadian pardon may help with a U.S. waiver application as proof of rehabilitation, but it does not automatically grant you entry.
Q4: What happens if I admit to smoking marijuana to a border officer?
A4: Admitting to drug use, even if legal in your home country or a U.S. state, can be grounds for inadmissibility. U.S. federal law, enforced by CBP, may still consider this an offence, potentially leading to denial of entry.
Q5: I was arrested but never convicted. Will this affect my entry?
A5: Yes, it's possible. Arrest records are accessible to CBP. If an officer finds something on your record that raises concerns, even without a conviction, you could face difficulties at the border.
Conclusion
Navigating the complexities of U.S. entry requirements with a criminal record can be daunting. Understanding the definitions of inadmissibility, particularly regarding crimes of moral turpitude and controlled substance violations, is paramount. While some minor offences may not pose an insurmountable barrier, it is always best to be informed and, if necessary, seek professional legal advice. Honesty and preparation are key when interacting with border officials. Being aware of potential issues and having documentation ready can significantly improve your chances of a smooth border crossing.
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