Law and the Border: Law and Criminal Records and U.S. Waivers — Not All Criminals Need a Waiver

by Daniel Joyce

This is the final installment of a three-part series regarding Canadian pardons and U.S. Immigration waivers. The first two articles focused on the interplay between pardons and waivers. We saw that a pardon is not the same as a waiver; a pardon may make it more difficult for border personnel to detect prior evidence of one’s criminal record, but it does not mean that the person no longer has a record for U.S. Immigration law purposes. We also looked at the potential consequences of relying on just a pardon, and the consequences for misleading the Immigration inspector about one’s criminal record.

Today we want to focus on the type of criminal record that requires a waiver. Not all criminal offenses make a person inadmissible to the United States. Some people with multiple criminal convictions are fully admissible to the United States without the necessity of a waiver, while others with only one conviction may be inadmissible.

A waiver is only required if you have a criminal record, in Canada or elsewhere, that makes you inadmissible to the United States. The term “waiver” means that the Department of Homeland Security (DHS) is waiving the fact that your record makes you inadmissible. Essentially, it is a determination that you do not pose a threat to the U.S., and that you can be admitted to the United States despite your inadmissibility. For many years, waivers were granted in one-year increments, requiring annual renewals. For the past year, however, U.S. Immigration waivers have been routinely issued for five-year terms.

A determination of admissibility involves a step-by-step analysis of one’s criminal record. Most convictions will fall into one of three categories: narcotics violations; crimes involving moral turpitude (CIMT) and crimes not involving moral turpitude. It is further important to determine whether the conviction was a juvenile offense or not. All convictions are relevant, no matter what country they occurred in. The following are the general rules:

A person is inadmissible if he or she has any violations for laws relating to narcotics or controlled substances, regardless of the severity of the offense.

A person is inadmissible if he or she has any CIMT convictions. There is a “petty offense” exception if there was only one CIMT. Most Canadian summary convictions and U.S. misdemeanors fall into this exception. There is no petty offense exception for two or more CIMTs.

A person is inadmissible if he or she has been convicted of two or more offenses, CIMT or otherwise, if the aggregate sentence to confinement actually imposed was five years or more (regardless of how much time was actually served).

Most juvenile (under 18) offenses do not affect admissibility, unless there is a drug trafficking charge or more than one crime of violence. If there is only one juvenile offense for a crime of violence, the individual is admissible if more than five years have passed or if the conviction was treated as a summary conviction.

The above rules are fairly straightforward in their terms, but not in their application. The problem often lies in determining whether an offense is a CIMT or not. Some crimes have been well established as either CIMTs or non-CIMTs, but there are many offenses that do not have the benefit of an official determination by the DHS or a court. That leads to a decision by the Immigration officer involved, meaning that there can be differences of opinion. A couple of years ago, I personally presented a case to an Immigration inspector to see if he agreed with my conclusion that a certain offense was a non-CIMT. He disappeared into a back room, came back a few minutes later and told me that he asked five other inspectors and that it was a tie: three said “yes,” and three said “no.”

In cases where the nature of the offense is not well established, or where there is uncertainty, the individual will have to seek a formal determination by the DHS. Often this uncertainty has arisen because the applicant has received different conclusions from different Immigration inspectors.

The Buffalo DHS office (and presumably others) routinely resolves these issues as part of the waiver application process. The applicant can apply for the waiver and state his or her uncertainty as to whether an offense or offenses are CIMTs, and request a determination. If the crimes are not CIMTs, the DHS will withdraw the application and supply a letter that confirms the applicant’s admissibility without the need for a waiver. (The letter is referred to generically as a “September letter” because the prototype, years ago, had a September date.) Alternatively, the DHS can grant the waiver if one is required because of CIMTs.

Crimes that are well established as CIMTs include: theft, robbery, fraud, forgery, possession of stolen property, breaking and entering with intent, murder, rape, sexual offenses, assault with a weapon or with intent to commit a CIMT, or any conviction for conspiring or attempting to commit any of the foregoing. Commonly-encountered convictions which are not CIMTs include: simple assault, mischief, impaired driving offenses, firearms violations, gambling offenses, traffic violations and tax violations.

The essence of a CIMT is that it is something done contrary to traditional standards of justice, honesty, principle or good morals.

Moral turpitude implies something inherently immoral, as opposed to something merely prohibited by law. For example, possessing an illegal weapon is a non-CIMT, while use of any weapon to commit a robbery would be a CIMT.

As a general rule, waiver applications will not be approved if the conviction record is less than three years old. If there are special favorable circumstances, a shorter time frame may be permitted, while a longer time frame may be required for serious or multiple offenses.

The key factor is a determination of “rehabilitation” sufficient to indicate that the applicant no longer poses a threat to society. Although several factors can enter into the analysis of rehabilitation, the factor given the most weight is the length of time with a clean record after the last conviction.

Another factor is the reason for seeking entry to the U.S., and employment as an international transport driver is considered to be a valid, important reason.

A denial of a waiver application is not a permanent problem. Many people with waiver denials are eventually approved after a sufficient time period has elapsed.

– Daniel Joyce is a U.S. lawyer with expertise in Immigration law. He can be reached at Hirsch and Joyce, Attorneys at Law, at 716-564-2727.

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