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Travelling with Criminal Charges

Traveling internationally as a person with a criminal record can be difficult. Each country has the right to decide who is or is not allowed to enter at their border. As such, a person with a criminal record may be refused entry depending on the length of their record, the types of offences they committed and the specifics circumstances around those offences.

The United States is Canada’s closest neighbour, and the two countries share the world’s longest shared and open border. This relationship means that citizens are constantly traveling between the two nations, particularly residents of Southern Ontario. This page is meant to provide some basic information on if and how Canadians with a criminal record can enter the U.S.

As mentioned, a person’s criminal record can be grounds for them to be refused entry into the U.S. Importantly, there is a basis for deciding which crimes are serious enough to deny international travelers. US Customs and Border Protection assess criminal activity based on categories of crime involving moral turpitude. This essentially means that the more serious a criminal offence, the more likely a traveler is to be denied entry.

According to U.S. Customs, an impaired driving offence will typically not lead to denied entry unless the traveller has multiple convictions for that offence or a combined record that includes that and other offences. Generally, drug possession charges, even ones that occurred long ago, can result in denied entry. Apart from those common examples, crimes of moral turpitude can include serious forms of assault or assault with a weapon, sexual offences including sexual assault, or major crimes against property like fraud or robbery. The standard for a crime of moral turpitude is a criminal action willfully undertaken by a person who knows it was illegal and that it was inherently wrong. This classification is reserved for actions that are done recklessly, maliciously or with evil intent.

Is International Travel Possible with a Criminal Record?

As mentioned above, each country has the right to deny travelers entry to their territory for several reasons. In the U.S., a traveler may still be denied entry even if they have not committed a crime of moral turpitude. If a person’s criminal record contains multiple minor offences, they may still be refused. There is also no set criteria for denying entry. The decision for allowing entry rests entirely with the customs agent a person speaks to when they attempt to enter the U.S. This means that a person with a criminal record may be permitted to enter the U.S. one time by one official, but that person may also be denied on another trip after they have been questioned by a different official.

This lack of consistency can be frustrating, especially in the context of travel for business or a vacation which are often detail-oriented and time-sensitive. To avoid any headaches or complications, it is best to plan ahead and to be as informed as possible about your options. If a person is worried about traveling with a criminal record, they can contact U.S. Customs and Border Protection to find out if they would be admissible to the U.S., or they can apply for an entry waiver that would allow an otherwise inadmissible person to enter the U.S..

Stages of the Criminal Justice System

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What is a U.S. Entry Waiver?

An entry waiver is a document that allows a person who would otherwise be inadmissible for entry to enter the U.S. Possession of a waiver allows the holder to travel within the U.S. for a period of up to 90 days. The waiver may be acquired as a precaution for anyone that has been convicted of a criminal offence in Canada, even if they have been discharged for that offence, or received a record suspension, otherwise known as a pardon. U.S. Custom officials are typically only concerned with a history of criminal activity, and not with the outcome of a case beyond whether an individual was found guilty or not.

How to Acquire a U.S. Entry Waiver?

The process to apply for an entry waiver is lengthy and complicated. A person applying on their own without aid from an organization or outside source could wait up to 12 months before their application is approved. Filing an application for a waiver carries a fee of $585, as of early 2024, along with the additional costs for acquiring some of the documents required for the application. There may also be various other rules that govern whether an individual is eligible to apply for a waiver, and these rules may change over time. It is suggested that anyone seeking a waiver consider retaining legal counsel.

The actual application for a waiver has several elements. These elements include two forms, an I-192, and a G-28 if the applicant is using an authorized person to aid their application process. An applicant must also provide evidence of their citizenship, a U.S. fingerprint card FD-258, a copy of their criminal record from any applicable country, and a court record from the court of conviction for each crime on a person’s record. The record must include plea indictment, conviction and disposition information for each crime committed. The USCBP has specific instructions for Canadians seeking verification of their criminal record from the RCMP.

Finally, applicants are asked to provide a signed personal statement that explains the circumstances of each arrest, conviction, and sentence they received. The USCBP also requests any additional information the applicant may be able to provide as evidence of their good character. This includes any evidence of rehabilitation following a conviction, proof of counselling, community service, current employment, or even marital status. Once all the elements of an application have been gathered, the applicant can submit them in person to the USCBP at any designated port of entry. This includes ports such as the Rainbow Bridge, Queenston/Lewiston Bridge, or the Detroit-Windsor Tunnel, among others.

Consequences of a Criminal Record

What is a Fingerprint Chart?

A fingerprint chart is one of the required elements for an entry waiver application. It is a document that contains images of a person’s fingerprints, and it is used by U.S. law enforcement to search their database of criminal records and match them to individuals. While it is possible for an applicant to have their fingerprints scanned by the RCMP prior to submitting their waiver application; it is simpler to have the scans taken when submitting a waiver application in-person at a port of entry.

Can Someone Check the Status of Their Waiver Application?

Applicants can check the status of their waiver application by contacting the CBP Admissibility Review Office. However, USCBP asks that all applicants wait at least 180 days after they applied before requesting a status update. The office receives a high volume of applications, so the recommended waiting period is meant to ensure that enough time has past to give an application the chance to be processed. A status request can be made by the individual applicant over email or made by a properly designated representative such as a lawyer. When requesting a status update an applicant should provide their full name and date of birth along within their request.

Other Reasons a U.S. Waiver Might Be Required?

There are various other reasons why a person might be denied entry into the U.S. that may require a different form of waiver and accompanying application. The most common reasons other than criminal history include health, or security reasons, falsely claiming U.S. citizenship, evading military service, or a history of immigration violations. There are also several other uncommon reasons that reflect the broad discretion that U.S. customs officials can use to deny potential travelers.

Denial for health reasons may be based upon a person’s recorded diagnosis of diseases, physical, or mental conditions. A person may be denied for security reasons if they have been accused of activities related to terrorism or other forms of extremist ideology. Specifically, an applicant in this scenario would have to prove to the satisfaction of the U.S. government that they are not a threat to the public.

Persons who have a history of violating U.S. immigration law in some form or another will also require a waiver, as would someone who has been discovered to have falsely claimed U.S. citizenship prior to a certain date. Finally, the evasion of military service applies to persons who have fled the U.S. to avoid military service and later seek to return to the country. Each of these other scenarios for refusal are more uncommon than the waiver needed due to criminal history.

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About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.