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Law and the Border: To waive or to pardon? A look at when and why

U.S. Immigration waivers and Canadian pardons are confused sometimes because they both deal with Canadian criminal convictions, and they both have something to do with the government reviewing and "ex...

U.S. Immigration waivers and Canadian pardons are confused sometimes because they both deal with Canadian criminal convictions, and they both have something to do with the government reviewing and “excusing” prior criminal conduct.

Nevertheless, they are both completely different things, having completely different purposes, procedures and consequences.

A Canadian pardon is a method of removing a past criminal offense from public record. A pardon decision is made by the Canadian Parole Board after a review of the nature of the prior criminal offenses and documentary evidence relating to “rehabilitation” and other factors that justify a pardon. It is our understanding that Canadian law allows a pardon recipient to state “no criminal record” with respect to pardoned offences. It is further our understanding that virtually any criminal offense is eligible for a pardon after certain a specified time period has elapsed from the date of conviction or probation. This can help avoid embarrassment and other obstacles affecting one’s employment, family life and social life.

A waiver is a determination by the Customs and Border Protection (CBP) division of the U.S. Department of Homeland Security (DHS) that waives the fact that a person is inadmissible to the United States because of a criminal record. Not all criminal offences make a person inadmissible to the United States, and this is one important distinction from the Canadian pardon.

A U.S. waiver application would only be filed by someone having a criminal conviction record that affects admissibility to the United States. The first step in the waiver process is determining whether the criminal conviction record in Canada makes the person inadmissible to the United States. If the answer is “yes,” that person needs a waiver regardless of whether or not he or she has a pardon.

A Canadian citizen may have minor criminal offences in Canada that have no bearing on admissibility to the United States. Such individuals don’t need a waiver, but they may still want to seek a pardon to obtain a clean record in Canada.

There is no correlation between pardons and waivers. There are people with pardons who still need a waiver to gain entry to the United States, and there are people without pardons who don’t need a waiver. The act of seeking a pardon is a separate and distinct decision that does not have a bearing on admissibility to the U.S.

As a general rule, a pardon has no effect on a waiver application. The position of the DHS is that a Canadian pardon was granted by the Canadian government, not by the U.S. government, and a waiver can only be granted by the U.S. government. Obtaining a pardon in Canada does not guarantee a waiver and does not substitute for one. We have seen pardons have a positive impact on admissibility to the United States in the following areas:

* It appears that drivers with minor criminal convictions have a better chance of getting a FAST card if they have a pardon, even if no waiver is required.

* A crucial feature of a waiver application is a showing of rehabilitation. A pardon can be a positive factor for rehabilitation, because it indicates an objective, neutral determination by a qualified agency that the person has achieved a sufficient rehabilitation level to deserve a pardon. The evidentiary value of a pardon may be small, but it can’t be ignored.

A common misconception is that the pardon process will eliminate all criminal conviction records from databases available to the DHS, meaning that the DHS will have no knowledge of the person’s prior conviction record if the person has a Canadian pardon. This is simply not true. Although the pardon and related purging and file destruction efforts may have that result for some individuals, there is no way to determine that, and no way to know if will change as database information is added or enhanced.

We have seen numerous instances where persons with pardons have been refused entry to the U.S. because the record was detected in the DHS database.

We don’t know how or why this is the case. If a CBP officer asks about a criminal record, he or she wants to know about all convictions, including any that may have been pardoned in Canada. We do not recommend that someone seeking entry to the U.S. take the risk of denying a criminal record in the hopes that the DHS does not know about it.

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

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