Law and the Border: Law and Pardons and Waivers – Part 1: Much Misunderstanding
August 1, 2003
The interplay between Canadian pardons and U.S. Immigration waivers has elicited much misunderstanding.The issues are subtle. We have heard people say, "If you have a pardon, you don't need a waiver."...
The interplay between Canadian pardons and U.S. Immigration waivers has elicited much misunderstanding.
The issues are subtle. We have heard people say, “If you have a pardon, you don’t need a waiver.” That is wrong. The pardon may allow someone to avoid detection, but it does not eliminate the underlying legal requirement for a waiver. We have heard people say then, “Okay, but if you have a pardon, you can’t get caught.” That is wrong too. You can get caught. The percentages may decrease dramatically with the pardon, but nothing is foolproof. “Well then,” some say, “if you have a pardon, you won’t get caught.” This may or may not be true, and this seems to be the biggest area of uncertainty.
Based on the way the system is supposed to work, a Canadian pardon will eliminate all incriminating information in the Canadian criminal databases. Moreover, the Canadian Human Rights Commission has stated that a person with a pardon can lawfully deny the existence of the criminal record if asked by anyone in Canada. For that reason, some people are willing to advise Canadian pardon holders that they will not get caught at the border, and if they are asked about a criminal record, that they are entitled to deny it.
Although that may be an accurate representation of the Canadian pardon process, it is an oversimplification of the U.S. immigration inspection process and, in our opinion, it is dangerous advice. It may indeed be true that a pardon holder has a very low likelihood of being detected or refused entry at the border. Despite some diligent efforts to gather sufficient information on which to evaluate that risk, we have not found enough credible, reliable information to quantify it.
From a broader perspective, we are uncomfortable with the “Will I get caught?” approach to this issue. We are attorneys, not probability experts. Even if we were probability experts, the issues are such that there is not a general rule applicable to everyone. Broad generalizations can be misleading and can lead to a false sense of security and regrettable decisions. As attorneys, we can tell you if your criminal record makes you inadmissible to the United States or not. If it does, you need a waiver, regardless of whether you have a pardon or not. If you attempt an entry to the United States without a waiver, we can advise you of the potential consequences. Further, we can advise you of the consequences of not telling the truth about your criminal record at the border. The Canadian National Parole Board (NPB) can tell you about the effect of a pardon on your Canadian criminal record databases, but no one can guarantee that the U.S. government databases will not contain incriminating information about you. Finally, we will never advise you to be untruthful in your response at the border. Let’s unravel this and explain.
Ian Levine at Pardons Canada (www.pardons.org) says over 10 per cent of the Canadian population have either an arrest or criminal conviction record. There are five potential databases: a fingerprint file, photograph file, police file in the province, the local court file and an RCMP file. Individuals who are fingerprinted receive a fingerprint service (FPS) number. People with arrests but not convictions can request a file destruction, which purges all incriminating data. People with arrests and convictions can apply for a pardon through the NPB.
The pardon also eliminates all incriminating information from the Canadian Police Information Centre (CPIC). After a pardon is granted, a search of the pardon-holder’s criminal record through the RCMP or CPIC will come back as “no record.” And, as mentioned above, a pardon holder can lawfully deny the existence of a criminal record, and cannot be compelled to disclose his or her criminal record to an employer, government agency, or any other party in Canada.
It is important to keep in mind that not all criminal convictions make one inadmissible to the United States. There are thousands of individuals with offenses such as assault and/or impaired driving, who are fully admissible to the United States without a pardon and without the necessity of a waiver. Only certain offenses make one inadmissible to the U.S.
However, if you do have a record that makes you inadmissible, your inadmissibility is permanent. It will not go away after a number of years, and a Canadian pardon will not change it. The U.S. immigration inspector will want to know your full criminal record history, regardless of whether or not you have a pardon.
The issue, then, is whether a pardon holder’s record will be detected at the border. At the beginning of this article, we looked at the propositions that “You can’t get caught,” and “You won’t get caught,” and stated that no one can guarantee those things. So let’s turn that question around and ask: “How could an immigration inspector learn about my record if I have a pardon?” There are really only two ways – information contained in computer-searchable records and information gained from you during the entry process:
Permanent criminal records:
According to Mr. Levine, some serious drug trafficking charges will remain in the CPIC database, even if pardoned. This is likely to affect only a very, very small percentage of pardon holders.
The pardon only eliminates data in the Canadian criminal databases. The NPB has no ability to purge information that is already independently contained in U.S. databases. If a U.S. government agency has “captured” relevant information in the past, that information will remain in the database after the granting of the pardon. Examples of U.S. immigration activity would include: prior refusals of entry; visa applications filed by you, or on your behalf; or an inspection at the border in which you were subject to a full identity and background check.
Information obtained and retained through sharing of databases. This is speculative, but it must be considered. The U.S. government maintains numerous automated database systems to provide “lookouts” for individuals who should not be permitted to enter the U.S., including IBIS (Interagency Border Inspection System) and the aptly named NAILS (National Automated Immigration Lookout System). Lookout databases provide limited information about an individual, including some criminal history, and provide “pointers” to enable the immigration inspector to find further information in other databases. Since 9/11, the U.S. Department of Homeland Security (DHS) has significantly enhanced the ability of border inspectors to obtain data through sharing of databases with other U.S. government agencies, as well as with the Canadian government. (There is no indication that the Canadian government has shared information that was protected or purged by the pardon.)
We should stress that these initiatives are aimed at combating threats of terrorism, but we cannot ignore the relevance of prior criminal records in evaluating the subject of border security and admissibility to the U.S. If the DHS has the duty to maximize its ability to detect inadmissible individuals at the border, one would think that it would try to capture and retain relevant information, even it is just a pointer like the person’s FPS number, in order to preserve a record of a criminal history and potential inadmissibility. Again, despite some investigation, we cannot confirm whether, or to what extent, this has occurred. An immigration supervisor told me that he did not know how the Canadian pardon system affects his ability to determine prior criminality. He said, “All I know is that when we see that the person has an FPS number, we ask the person why.”
Direct questioning during inspection:
Immigration officers conduct questioning from a variety of perspectives. Sometimes the lookout databases provide information like the FPS number that needs to be pursued. Other times, instinct or body language will raise concerns. Sometimes it is just random, standard questioning. Immigration inspectors are trained to overcome rehearsed or dishonest answers. They are fully aware of the issues relating to pardo
ns, and are unlikely to ask, “Do you have a criminal record?” and let it go if the person says “No.” They are much more likely to ask, “Have you ever been arrested, charged or convicted for any offense or crime?”
The standard application form used for a visitor visa or temporary work visa, used at U.S. embassies worldwide (not at the border), makes it even clearer by asking for disclosure of any criminal background, even if a person has a “pardon, amnesty or other similar legal action.” This is also clear on the FAST commercial driver application form. The Canadian background check asks, “Have you have ever been convicted of an offense in any country for which you have not received a pardon?” The form then contains the statement that, “For U.S. background checks, you may be questioned by a U.S. officer about your full criminal history, including arrests and pardons.”
In the past week we received calls from two drivers who had been refused entry. One has had a pardon for 17 years and the other for eight years. Both have crossed the border hundreds of times, and both have had full entry inspections in the past. It is possible that someone told them long ago that they didn’t need a waiver and they would never get caught. For many years, they were lucky, and that advice and prediction worked for them. Until last week. What happened? We can’t look over the shoulder of the immigration inspector, so we will never know. But it does provide a perspective on the amount and the nature of the risk involved. Maybe the risk is small when viewed as a one-time thing for a cross-border shopping trip, but that risk necessarily increases in terms of size and harm in the context of a driver who crosses the border for a living, week after week, year after year.
Our position is that if you have a criminal record that makes you inadmissible, then you have a problem. The pardon will mask the problem for some people, maybe forever, but it will not make the problem go away. Your problem means that you will have to make a decision: should you apply for a waiver, or should you take your chances? We know that various pardon and waiver services in Canada encourage people to take their chances. We never do that. We view our role as helping people with their problems, not joining them or encouraging them in their hope that they won’t get caught. On the other hand, we are not in the business of “selling” waivers. We are in the legal advice business, and we try to equip the client to make an informed decision. Different people can tolerate different risks, and we won’t try to substitute our judgment for theirs. If someone wants to take a risk, we can only try to make sure he or she has sufficient information to evaluate the risk and the consequences. For the reasons stated above, we cannot advise people that there are no risks.
This is the first in a series of three articles on this topic. This article focuses on the interplay between the Canadian pardon and the US immigration waiver. Next month we will focus on the consequences of applying for a waiver or not applying for a waiver, and the consequences of untruthful statements at the border. The third article will summarize the rules regarding admissibility, i.e., which criminal offenses require a waiver and which do not.
– Daniel Joyce can be reached at Hirsch and Joyce, Attorneys at Law, at 716-564-2727.