The Canada Criminal Code defines the crime of “assault” in several different levels of seriousness, ranging from common (or simple) assault, to assault causing bodily harm, to assault with a weapon and aggravated assault. Sexual assault crimes are defined separately.

For a person convicted of assault, admissibility to the U.S. will depend upon the severity of the offence, and, in some cases, the disposition by the court. U.S. Customs and Border Protection (CBP) divides offences in two broad categories: crimes involving moral turpitude (CIMT) and non-CIMT offences. Unless there was significant jail time imposed, a person is admissible to the U.S. if he or she has one or more non-CIMT offences. A person is inadmissible to the U.S. if he or she has any CIMT offences, unless there is only one such offence, and the offence was treated as a summary conviction. (This is a very general statement of the rule, and further analysis may be required in some cases.)

For many years, the CBP and former INS were quite consistent in applying admissibility rules to convictions for assault. Common assault and assault causing bodily harm (CBH) were non-CIMT offences, while all other assault offences, including sexual assault offences, were regarded as CIMT offences. In cases where drivers encountered admissibility problems with assault convictions, the problem was usually related to the driver’s inability to prove to the satisfaction of the CBP officer that the conviction was for common assault or assault CBH, or that the CIMT offence was treated as a summary conviction.

Within the past year or two, we have seen that a new dimension has been added to the analysis at some ports of entry. Many common assault convictions involve altercations between spouses or family members. In the U.S. and elsewhere, society is reacting to domestic violence and related offences such as stalking and harassment, and new laws have been enacted to provide stronger penalties for domestic violence. However, no changes have been made to the basic array of criminal assault offences as set forth in Sections 265 through 268 of the Canada Criminal Code.

Nevertheless, we have seen instances where CBP inspectors have inquired as to the circumstances of a common assault conviction, and denied admission to the U.S. to a driver who admitted that the common assault incident involved a spouse or family member. This led to the rather bizarre result that one driver could be deemed admissible to the U.S. and another inadmissible (requiring a waiver) even if both drivers had exactly the same criminal conviction record.

An inquiry into the underlying facts of a conviction is improper under the immigration laws. U.S. courts have long established that the immigration inspector must make a determination based on the record of conviction, and not upon the underlying facts of the conviction. Immigration law has codified this principle in its regulations relating to CIMT offences, which state that a CIMT offence “is determined by the nature of the offence for which the alien was convicted, and not by an independent analysis of the facts underlying the conviction.” In other words, common assault is common assault, regardless of the circumstances of the incident. A conviction for common assault does not become a CIMT crime if a driver answers a question one way, and a non-CIMT offence if he answers another way. The immigration inspector must look to the conviction record alone, and make a determination on admissibility.

To clarify this point, and to achieve consistency among the ports of entry along the Canadian-U.S. border, we asked for a ruling from CBP headquarters in Washington, D.C. The CBP agreed with our position, and has instructed the ports of entry that the offence of common assault does not become a more severe conviction for “domestic assault” upon the whim of the Immigration officer.

It is important to remember that the burden of proof is always on the person seeking admission, and the person cannot rely on the computer records available to the Immigration Inspector to establish admissibility. Sometimes, the exact Criminal Code section and subsection numbers are important to establish the nature of the conviction, and at other times actual court records must be produced to show whether the offence was handled as a summary conviction or an indictable offence. We have seen many cases where drivers were refused entry to the U.S. and told that they needed waivers, when the real problem was that the driver could not produce court records or a conviction record that proved admissibility. In those cases, the driver has been able to return to the port of entry and prove admissibility by providing the proper documentary evidence, thereby avoiding the necessity of a waiver application.

– Daniel Joyce is a partner with the Buffalo N.Y. law firm Jaeckle Fleischmann & Mugel LLP. He can be reached at (716) 843-3946.