In 2010, I was admitted to the United States. In 2012, I was denied entry due to a 1985 criminal conviction. Can you tell me whether I am truly inadmissible to the U.S.?

Question:

In 1985, I was convicted of attempted theft in Canada (I broke a car window). I am a Canadian citizen and currently live in Vancouver, Canada. Last May, I tried to enter the United States, but was denied entry because of my 1985 conviction. I have no other criminal record. Interestingly, two years ago when I tried to cross the border, I was sent to secondary inspection, detained and questioned for 2 hours, but allowed to enter. During my detention, Customs and Border Protection (CBP) managed to damage my classic car that I was traveling in a the time. I filed a claim against them, but it was eventually settled out of court. Last August, my criminal record was completely expunged. CBP claims they can still hold my previous criminal conviction against me. I only cross the border for car shows, charity fund raising events, and to visit friends. Outside of my 1985 conviction, I have never had any other legal issues. Can you provide me with any input as to whether I am admissible to the United States, I can't seem get a consistent answer from CBP?

Answer:

Thank you for contacting the SRW Border team with your question. You are certainly not the first person to receive inconsistent answers from Customs and Border Protection (CBP). As I recently told a client, CBP officers may be professional and at times helpful, however, in reality, officers should never be your only source of guidance regarding your immigration matters.

We receive many questions relating to previous criminal convictions and their ramifications on admissibility. While each case we receive is different, our initial approach is always the same: through our consultation process, thoroughly review the case and then discuss the case in detail with the client and determine the best strategy moving forward depending on our clients goals.

I imagine that the claim you filed against CBP may have resulted in some ill will; however, CBP cannot use that as a ground for denying your admission into the United States. As far as your conviction is concerned, we would like to review your complete court record to determine: (1) if the conviction makes you inadmissible to the United States for immigration purposes, and (2) how the current disposition of the conviction affects your admissibility. Even though your conviction is from 1985, was your sole conviction and it has been expunged, if it indeed is an ‘conviction’ as defined under the Immigration & Nationality Act, it could very well mean that you are inadmissible to the U.S. under INA §212(a)(2)(A)(i)(I). However, as mentioned above, we would need to determine whether you do indeed have a ‘conviction’ for immigration purposes, whether it falls under any of the enumerated exceptions, etc. In the event that your court records do not provide enough information, we will likely ask that you request your RCMP. It may even be beneficial to make a Freedom of Information Act (FOIA) request to obtain your complete CBP record.

Once we understand the disposition of your conviction and how it affects your admissibility, we will likely have one of two choices: (1) if our research determines that you are indeed inadmissible to the U.S. because of your criminal conviction, help you prepare a nonimmigrant waiver application packet (Form I-192) for submission to the Admissibility Review Office; or (2) if our research indicates that you are not inadmissible, we can provide a service called a “controlled admission.” A controlled admission typically includes the following: (1) a comprehensive professional analysis of the client's U.S. immigration issue(s); (2) preparation and submission of a detailed packet outlining the reasons why you are admissible to U.S. Customs & Border Protection (CBP) at a local Port of Entry; and (3) attorney accompaniment to the local Port of Entry for your admission.

For more information about your case, we encourage you to contact our office and schedule a consultation to speak with the SRW Border team and receive a thorough professional analysis of your case. We look forward to hearing from you.

I was "flagged" and denied entry into the United States as a visitor in B-2 status. What can I do to correct any negative information in my file maintained by Customs and Border Protection?

Question

Dear SRW Border Lawyers,

I am a Canadian citizen and I currently live in Toronto, Ontario, Canada. Last week, I was denied entry into the United States at the U.S. Customs and Border Protection preclearance at Pearson International Airport. My primary purpose for traveling to the United States was to visit/tour and meet with my friend (and employer) who was also traveling on B-2 visitor status.

At the preclearance, I was extensively questioned by CBP when I explained that my flight was purchased by my employer as a bonus for my work with the production company that he owns in Canada. When asked what I do for a living, I stated I was a TV Producer, and I was then promptly sent to secondary.

After about an hour, I was told I was inadmissible to enter the United States. I was photographed, fingerprinted, and given a document to read and sign. I found the document inaccurate and did not sign it. No other clear information was given to me as to the reason I could not travel other than CBP believed I was being dishonest about my reason for visiting, and they believed I was seeking entry to work. I was informed, however, that I was not banned and that I could attempt to re-enter at a later date.

I went to the Air Canada desk to explain my situation, and was told I was rescheduled on a later flight. I was also informed that as long as I was told I was not banned that I could attempt to reenter the customs area and plead my case to another CBP official. I then checked back in and told a different CBP officer my situation. He said he believed me and would like to send me through, but I had been “flagged” and was required to enter secondary.

During my second visit to secondary, CBP officials said that in order to gain entry I had to bring documents that proved I was going to Los Angeles only to visit and a letter from my friend explaining why he paid for my air travel. After being unable to contact my employer, I cancelled my trip and left the airport.

I have no idea why I was found inadmissible. I am concerned that this ordeal will affect future travel to the United States. What can I do to correct any negative information in my file?

Answer

Thank you for your question. Based on what you briefly described, it appears as if you were simply turned away because CBP did not feel that you qualified for B-2 (visitor for pleasure) status, either because they felt that you did not establish that you had strong ties to Canada and/or they felt that you were seeking to enter the U.S. to work (which is not a permissible B-2 activity).

In general, CBP will issue documents or take a sworn statement from you if something more serious than a denial resulted from your encounter. Since no documents were issued and you were told by CBP officials to return when you could provide additional information, there is a good chance that no harmful action was taken. When the government fails to issue explanatory documents or provide adequate reasoning for a denial, it is understandable how you may be hesitant to reapply for admission into the United States. You cannot help but think that your next attempt will undoubtedly result in a permanent bar. Furthermore, it is not helpful when CBP begins to throw around terms like “flagged,” which only heighten your anxiety.

In situations such as yours, when you have little information about why you were denied, one service that we provide for our clients is to submit a FOIA request to see what, if anything, is in their file. FOIA requests can be made to the Department of State, Customs and Border Protection, or United States Citizenship and Immigration Services. Unfortunately, FOIA requests take around 6-8 months to process, so expect a wait once you submit your request. Once we received a client’s complete file, we completely review the file and develop a strategy moving forward that meets the client’s short and long-term goals.

Aside from making a FOIA request, there is little else that can be done other than going back to the border with “stronger ties” and applying for admission. Additionally, due to our proximity to the border, we also offer a service we refer to as “Controlled Admission.” A Controlled Admission allows us to accompany our clients to the border and guide them through the inspection process. We understand that applying for admission can be daunting, but with a Controlled Admission, we are able to personally advocate on behalf of our client at the border should any issues arise.

At this time, the best solution I can offer is to have you schedule a consultation with our office so we can thoroughly discuss what documents/information you presented at the border, about your conversations with CBP and determine a strategy for moving forward. We look forward to speaking with you.

SRW Border Team Clears Canadian Citizen’s Record for the Second Time Due To Erroneous Information Provided by Court Clerk

Two years ago the SRW Border Team was approached by a Canadian citizen to assist him in clearing up his inadmissibility issue. After a thorough investigation of his case, we determined that although he had posted a bond and never returned to the court, the court closed his case. In addition, his bond posting and failure to return to court did not result in a conviction or a plea of guilty that would render him inadmissible. Under immigration law, to be found inadmissible to the United States (and subsequently barred from entering) a foreign national must be convicted of, admit to having committed, or admit committing acts which constitute the essential elements of an offense.

Our plan to clear the client’s record took several steps. First, we requested court records to substantiate that no plea was entered, and that he only paid a fine and the matter was closed. Second, after collecting all the necessary information, the SRW Border Team prepared a detailed legal brief explaining why the individual was not inadmissible and submitted it to Customs and Border Protection (“CBP”) for their review. After reviewing our submission, CBP agreed that the client was not inadmissible. Finally, we contacted the client to inform him of the decision and then scheduled a controlled admission to accompany the client to the port of entry to correct his record to reflect he was no longer inadmissible.

Several years later, the client entered the United States at another port of entry. While being inspected by a CBP officer, the officer question client about his previous immigration history. Unconvinced that our client was admissible, the CBP officer took it upon himself to call the court clerk of the court that handled the client’s criminal matter to determine if the client was, in fact, admissible. Unfortunately, the court clerk erroneously informed the CBP officer that the posting of the bond is the equivalent of an entry of a plea of guilty. This was obviously wrong, but the client was nonetheless refused admission.

Following his denial, the client turned to us again and immediately contacted the court to correct the misinformation. Finally, after several attempts to communicate with the presiding judge, we were issued a strong and clear letter from the judge confirming: (1) that no plea had been entered, (2) there was no conviction, and (3) that the court clerk provided inaccurate information.

This case is a good example of where mistakes are frequently made. When officers rely on misinformation rather than on official documentation there can be very serious consequences to an applicant. If you are faced with a similar situation, and would like to review your with us, please feel free to call us for a consultation.

Young Athlete Misinformed by Customs and Border Protection

Last week, Attorney Bill Reich appeared at the Peace Bridge Port of Entry in Buffalo, New York to represent a young British citizen/landed permanent resident of Canada, in applying for entry to the U.S. under the Visa Waiver Program in B-1 (business visitor) status.  This young individual is a professional motorcycle racer, both in Canada and the U.S., and had been previously periodically entering the U.S. so he could compete in professional motorcycle races.   However, on his last entry a few months ago, he was advised by U.S. Customs & Border Protection (CBP) officers that he required a P-1 visa to enter the U.S. for this purpose. 

Wanting to properly comply with U.S. immigration laws, he contacted our law firm to confirm whether he did require a P-1 visa for professional athletes and clarify his understanding of B-1 permissible business activities.  After speaking to the client, our firm was able to confirm that the client was eligible to enter the U.S. as a B-1 business visitor to compete in the professional motorcycle race.  Specifically, pursuant to the CBP Field Inspector's Manual, professional athletes who are entering the U.S. to compete in competitions and are competing solely for prize money (i.e. not being paid a salary or payment for their participation in the race), are deemed to be within the scope of permissible B-1 business activities. 

Based on our findings, we scheduled a controlled admission with CBP for our client.  We first sent a packet to CBP to inform them of the client's background and his eligibilty to enter the U.S. under the Visa Waiver Program in B-1 status.  Once ensuring that CBP agreed with our research, we scheduled a time/date for the client to appear at the local Port of Entry to present himself for inspection and apply for admission.  Mr. Reich accompanied the client to the Port of Entry and the client was inspected by CBP officials.  At the conclusion of the appointment, the client was successfully issued an Form I-94W and allowed to enter the U.S. to compete in the upcoming motorcycle race.

The above scenario just highlights the fact that the scope of permissible activities under the B-1 category is incredibly complex.  This is mostly because of the difficulty in determining when individuals exceed the scope of the permissible B-1 business visitor activities and begin to take the form of employment activities. 

For additional information about the B-1 business visitor classification, please contact our office to schedule a consultation.