I was convicted of 2 minor drug charges (possession) in Canada, but the convictions were pardoned in 1994. Do you think my case is likely to be approved for an I-192?

Question:

I have a situation that requires a nonimmigrant waiver. I am a Canadian citizen and currently live in Montreal, Quebec. Twenty-five years ago I was convicted for 2 minor drug charges (possession), but the convictions pardoned in 1994. I am seeking help with preparing a Form I-192 waiver and found your website on the Internet. Do you think my case is likely to be approved?

Can you tell me if, when depositing the waiver package at Port of Entry, Customs and Border Protection officers inquire about the facts of my previous convictions or do they simply verifying that the waiver is complete? I do find this whole thing intimidating.

At this point in time, I am collecting documents (RCMP, court documents-indictment-conviction-minutes of trial). If I chose to move forward with your assistance, the documents that I would be providing will be mostly in French. I hope this is not a problem.

Finally, since my record is sealed, it is not visible to law enforcement in Canada. My question is what will happen to my waiver application when it is submitted to the Admissibility Review Office? Will the information in the application be disseminated to other jurisdictional systems? I am concerned that a possible background check may reveal my previous conviction and jeopardize my job or future promotions.

Answer:

Thank you for contacting SRW Border Lawyers. As you are likely aware, Canadian citizens who are inadmissible to the U.S. and who would like to enter the U.S. for non-immigrant purposes, whether it be as a visitor for pleasure, business visitor or under a non-immigrant employment category (TN, L-1, etc.) must first apply for a nonimmigrant waiver (Form I-192). Due to your two (2) previous minor drug convictions, you are most likely inadmissible to the United States INA §212(a)(2)(A)(i)(II) and require a nonimmigrant waiver under INA §212(d)(3).

Our Services

Since the facts and circumstances of each waiver case is different, SRW Border Lawyers makes it a practice to first review each case in detail before confirming that a waiver is necessary. For example, we would want to know how old you were at the time of these convictions and how these proceedings were handled – and confirm whether you truly have a ‘conviction’ for immigration purposes. A consultation provides us the best opportunity to review each aspect of a case and address any issues or concerns you may have. Once we confirm that a waiver is necessary, we will assist you with collecting all necessary documents, complete all forms, and prepare a detailed legal brief outlining your eligibility for the nonimmigrant waiver under precedent case law.

Our firm has prepared numerous nonimmigrant waivers for clients throughout Canada, and each case brought with it a different set of facts and varying degrees of complexity and seriousness. While we never guarantee that a waiver application will be approved, we never take a case that we believe has little or no chance of succeeding.

Based on the information you provided in your email, there appear to be a number of favorable factors in a prospective nonimmigrant waiver application on your behalf. Your convictions, presumably the only ones you have, were from almost twenty-five years ago and you have not shown a history of recidivism. Other factors we would want to stress is how you have been a productive and respected member of society. Additionally, were you granted a pardon or was your case just sealed? If granted a pardon, we would want to highlight the favorable treatment you have received from your own government. As far as your French documents, generally, they would need to be translated before being submitted with your nonimmigrant waiver application. We sometimes obtain fee quotes for our clients from our third party vendor and let our clients choose how to proceed regarding the translations.

Submitting A Waiver Application at a Port of Entry

Submitting your waiver application at a port of entry is limited to paying the appropriate government fee and submitting your application. This is not a time where Customs and Border Protection officers address the merits of your waiver or question you about your previous convictions.

Admissibility Review Office (“ARO”)

The extent of the Admissibility Review Office’s (ARO) information dissemination is unknown. Once a waiver is filed, the agency provides little insight on the process other than providing (often incorrect) timetables for adjudication. In recent years, there has been a trend toward consolidating data among law enforcement agencies throughout Canada and the United States; however, we have yet to encounter an issue similar to the one you describe in your question.

Please continue to collect the documents that you outlined in your email (i.e., RCMP, court documents, certificate of disposition, minutes of trial). In the meantime, if you have any additional questions or concerns, or would like to set up a consultation to speak with us to discuss the specifics of your case, please call our office. We look forward to speaking with you.

Vacating Criminal Convictions under the Immigration and Nationality Act ("INA")

The Immigration and Nationality Act (“INA”) restricts certain classes of individuals from being able to enter the U.S. - whether temporarily or permanently – by deeming them ‘inadmissible’ to the United States under INA §212. Conversely, the INA also has certain provisions which can render individuals who are already present in the U.S. – whether lawfully or unlawfully – ‘removable’ from the United States under INA §237. One class in particular that is vulnerable to being permanently ‘inadmissible’ and/or ‘removable’ are individuals who have certain prior criminal convictions.

Specifically, pursuant to INA § 212(a)(2)(A)(i) (which tends to be a common ground of inadmissibility but is not the sole ground of criminal inadmissibility): Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of: (I) a crime involving moral turpitude or an attempt or conspiracy to commit such a crime, or (II) a violation of any law or regulation of a State, the United States, or a foreign country relating to a controlled substance, is inadmissible.

The various grounds of removability based on criminal convictions can be found in INA §237.

Crimes Involving Moral Turpitude

A crime involving moral turpitude (“CIMT”) is generally defined as a crime that is “inherently base, evil, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” The definition of a CIMT is somewhat difficult to understand by many; however, the following crimes have been commonly found by courts to be CIMTs: Assault (in the second degree), Battery (aggravated), Child/Spouse Abuse, Criminal Reckless Conduct, Driving Under the Influence (aggravated), Arson, Blackmail, Theft, Possession of Stolen Property, and Bribery. However, since each state statute differs, and each case is unique factually, foreign nationals are urged to have an experienced immigration attorney review their case to ensure/confirm whether or not their specific conviction is a CIMT. Additionally, even if the conviction is a CIMT, an experienced immigration attorney can determine whether the conviction may fall under one of two the enumerated exceptions (Petty Offense Exception and/or Juvenile Exception) provided under INA §212.

Convictions for Violations of Federal, State, or Foreign Drug Laws The INA is exceptionally harsh when it comes to dealing with drug related convictions because of the severe negative impact that drugs have on our society. For example, while the INA provides for a nonimmigrant waiver for drug conviction(s) to allow individuals to visit the United States under INA §212(d)(3), it does not provide for an immigrant waiver for drug convictions other than a single offense of simple possession of 30 grams or less of marijuana. Thus, while individuals with drug convictions may apply to temporarily enter the United States with non-immigrant status, they will be forever barred from immigrating to the United States (beyond the aforementioned exception) because of their previous drug-related conviction.

Inadmissibility Based on Conviction

The INA defines the term “conviction” as: “a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where— (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.” INA § 101(a)(48)(A).

What does this mean? Well a conviction itself is easy enough to understand – but there may be situations in which the foreign national has been advised that the case has been dismissed pursuant to a conditional discharge or some other means, but an underlying plea of guilt remains. The underlying plea of guilt could still be a ‘conviction’ for immigration purposes.

Inadmissibility Based on Admission

Surprisingly, under INA § 212(a)(2)(A)(i), an individual can be found inadmissible, even if they have not been convicted in a court of law, as long as they “[admit to] having committed, admit [to] committing acts which constitute the essential elements of ” a CIMT or a controlled substance related offense. On its face, INA § 212(a)(2)(A)(i) seems to run contrary to well-established constitutional principles, such as due process; however, the INA is intentionally written this way to give immigration officers greater authority to prevent individuals (who may have committed a crime, but were not arrested or convicted for it) from entering the United States. When an immigration officer makes a finding of inadmissibility based on an admission, it is equal to that of a conviction by a court of law for immigration purposes and will remain on your immigration record and forms a permanent ground of inadmissibility. However, there are procedural safeguards in place within the law to ensure that any such ‘admission’ is legally sufficient.

Our Services

In the past, our firm has successfully assisted numerous clients in clearing up/resolving their inadmissibility. In some situations, it was a matter of establishing that the disposition of their criminal matter did not result in a conviction for immigration purposes. In some, it was a matter of reminding immigration officials that while the individual had a conviction for immigration purposes, their conviction fell into an enumerated exception. For others, it has been discussing the client’s case in detail with them and determining whether, through the assistance of a criminal attorney, their conviction could be vacated because there seems to be a technical/legal defect in the underlying criminal proceedings which forms the basis of their inadmissibility. If the conviction is vacated, we then prepare a legal memo explaining to the proper authority (whether a U.S. Consulate abroad or U.S. Customs & Border Protection) that the foreign national is no longer inadmissible and that the appropriate records be updated to reflect the same.

And for the fortunate few that have contacted us during their criminal proceedings, we have been able to work with their criminal attorney to help resolve their criminal matters in a way that does not render them inadmissible to the U.S.

What should you take away from this posting? If you are currently in criminal proceedings and are a foreign national, contact our office to team up with your criminal attorney to avoid a conviction which can render you removable and/or inadmissible. If you have completed your criminal proceedings and have a conviction, contact our office to have us evaluate your current immigration status and options moving forward.

A previous drug conviction is preventing me from entering the United States. I need to take College final exams or I risk losing an entire semester of credit.

Question:

Dear SRW Border lawyers,

I entered the United States in F-1 status to attend college in California. During my first semester I was arrested and charged with possession of a controlled substance. The controlled substance was not mine, but since it was found in my car I was charged with possessing it.  During the criminal proceeding, I was represented by a public defender who was unaware of immigration law and how a criminal conviction would affect my immigration status. In fact, I was told on several occasions that if I were to pled guilty to a misdemeanor the conviction would not affect my immigration status. Taking the advice of my lawyer, I pled guilty to a misdemeanor. I was under the impression that entering a plea and paying a small fine would put an end to my situation.

Several months later, I returned home (Sweden) during Christmas break. When I tried to return to the United States to continue my classes, Customs and Border Protection (“CBP”) denied me entry due to my conviction. After I explained the situation surrounding my conviction CBP paroled me into the country for one (1) year. I finished up my spring semester and then returned home to Sweden again for summer vacation. Unfortunately, I did not realize that my parole was only a one-time entry. So, when I tried to enter the United States again to begin the new school year, I was denied because of my conviction.

My school has been very understanding with my situation, but I was recently informed by school administrators that I must take my final exams in-person, or I will have to withdraw from all of my classes and lose an entire semester worth of class credit.  How can I enter the United States? I do not want to lose an entire semester of classes.

Answer:

Thank you for contacting the SRW Border Team. As you already know, you are inadmissible due to your criminal conviction. Pursuant to INA § 212(a)(2)(A)(II), “any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance is inadmissible.

That being said, and with only a limited understanding of the facts of your case, you may have some options available to return to the United States to finish your schooling.

Parole

Despite you inadmissibility, you may be able to parole into the country for a period of time long enough to take your exams. Parole is a legal fiction that CBP uses to allow individuals to enter the United States for a specific purpose and period of time without actually “admitting” them. Parole is generally used in situations where there is a strong humanitarian or business need, however, an experienced immigration lawyer may be able to develop and present a persuasive case to CBP to allow for the discretionary authorization of parole. You should also be aware that your parole will more than likely be a one-time entry only, which means that once you enter the country, you will not be able to return if you depart prior to the expiration of your parole.

Vacate Criminal Conviction

While we only have the information you provided in your email, you may be able to vacate your criminal conviction. Based on your email, it appears that throughout the criminal proceeding you were not properly apprised of the immigration consequences of your plea agreement. Vacating the conviction would essentially clear your record and remove your inadmissibility. While our office does not handle criminal matters, we have a network of experienced criminal lawyers that we will put you in contact with and then work closely with that lawyer to resolve your immigration matter.

If you are not able to vacate the criminal conviction, you will likely need to apply for a non-immigrant waiver through the U.S. Consulate in Sweden, in conjunction with your application for a new F-1 visa.  For more information about this non-immigrant waiver process through the Consulate, please click here. 

We hope the above information was helpful. We look forward to speaking with you through our detailed consultation process and helping you through this stressful time.

Q: How can I return to the U.S. after being deported for a drug conviction?

Q: Dear SRW Border Lawyers,

In 1984, I was granted permanent resident status. In 2008, I was placed in removal proceedings and then removed to the Dominican Republic after serving a prison sentence for a conviction for conspiracy to distribute 300 grams or more of cocaine. I was charged as inadmissible and removable under INA § 212(a)(2)(A)(i)(II) and INA § 237(a)(2) for violation (or a conspiracy or attempt to violate) any law regulation of a state, U.S., or a foreign country relating to a controlled substance. I have been out of the country for several years now, but would like to return to the U.S. to visit my family (especially my daughter).

A: Based on the information you provided in your question, your previous drug conviction will greatly restrict your efforts to visit the United States. Drug convictions are punished severely under immigration law due to the severe negative impact that drugs have on society. That being said, for you to enter the U.S., you must first acquire a waiver for your inadmissibility under INA § 212(a)(2)(A)(i)(II). Unfortunately, your conviction bars you from ever applying for a green card again because there is no immigrant waiver available for your particular ground of inadmissibility. You will, however, be able to apply for a nonimmigrant waiver under INA § 212(d)(3)(A)(i), together with a non-immigrant visa, which will allow you to visit the U.S temporarily if approved for both. 

To learn more about the nonimmigrant visa/waiver process, please click on the INA § 212(d)(3)(A)(i) nonimmigrant waiver (applying at U.S. Consulate) tab under the “Border Solutions” drop down menu.

For further assistance, please call our office to discuss what the best strategy would be in preparing a strong nonimmigrant visa/waiver package.