Criminal pardon not enough – by Guidy Mamann

November 14th, 2005

Every day a Canadian somewhere is denied entry to the United States because of a past criminal conviction. Many suffer embarrassment, financial loss, missed opportunities, and inconvenience when they are confronted with this problem.

I have seen many fine Canadians who may have done something, perhaps during their youth, that now prevents them from visiting family, attend important social functions, or seizing career or business opportunities in the United States.

Some may think their conviction is a non-issue because they have a pardon, or because a certain amount of time has passed or because they have since entered the US on many occasions without difficulty. Unfortunately, none of these will necessarily preclude the possibility of a denial of admission.

A pardon issued by Canada's National Parole Board allows people who were convicted in Canada of a criminal offence to have their criminal record kept separate and apart from other criminal records.

Such a pardon, however, does not erase the fact that a person was convicted of an offence nor does it guarantee entry or visa privileges to any country.

In fact, a person who is criminally inadmissible to the United States cannot overcome such inadmissibility by simply obtaining a Canadian pardon.

As in Canada, it is possible to be criminally inadmissible to the U.S. even where no criminal conviction has been registered against the foreigner. An alien seeking to enter the United States is inadmissible if they have been convicted of, or admit having committed, or who admit committing acts which constitute the essential elements of, a crime involving "moral turpitude."

There are two general exceptions to this rule.

First, a foreigner is not inadmissible if they were under 18 at the time that the crime was committed provided that more than five years have passed since the commission of the crime and the completion of any term of imprisonment.

Second, the "petty offence" exception covers foreigners who were convicted of, or who admit having committed, an offence which carries a maximum sentence not exceeding one year of imprisonment provided that the foreigner did not receive a sentence in excess of six months regardless of the extent to which the sentence was ultimately executed.

What constitutes a crime involving "moral turpitude" is complex and does not involve every crime but does include most common ones.

Since 9/11 Canada and the United States have been sharing more information and are each more efficient at retrieving such information from one another. This is so even in the case where a pardon has been granted.

People who have been denied entry to the US should not rush off to another port-of-entry as the denial is recorded electronically and is immediately available to all U.S. immigration officials. Such an attempt can only make matters considerably worse and could lead to a bar to entry if misrepresentation is used to cover up the previous denial of entry.

Those who have a conviction who feel they qualify for an exception must carry documentation to persuade the officer of their entitlement. Others need to apply for a waiver which will take several months to process.

A pardon might help the waiver process but won't guarantee its success.