Both the U.S. and Canada make it very difficult for anybody with a criminal record to cross the border. You can be barred from entry for a very wide variety of criminal offenses – even if they seemed to be minor when you were charged. You should also realize that border officers are not trained as lawyers. It is therefore certainly possible that they may misinterpret the law or misapply it to your situation.
The list of criminal acts that will bar you from the U.S. are long and complex. You can read through the U.S. Customs and Border Protection discussion of what it takes to enter the U.S. with a criminal record. If you are still confused you can call the U.S. Customs and Immigration Service for guidance. However, unless it is pretty obvious that you fall under a clear exception, none of these steps may give you the answers you need. It is very possible you will want to consult an attorney who specializes in this field to determine if you will have a problem crossing the border.
Crimes that will make you Inadmissible to the U.S.
Below is a very basic list of crimes that will make you inadmissible to the Unites States. This list is by no means complete. You should also note that not all of these crimes require an actual conviction in court to make the applicant inadmissible.
- Crimes involving moral turpitude. This includes any attempt or conspiracy to commit such a crime. It excludes crimes committed when the person was under the age of 18 years, so long as the person was released from jail more than five years before applying for a visa or other immigration benefit. It also excludes crimes for which the maximum penalty did not exceed one year in prison and the person was not, in fact, sentenced to more than six months in prison. See the more complete list of crimes of moral turpitude below.
- A controlled substance violation according to the laws and regulations of any country. This includes trafficking and any conspiracy to commit such a crime. This includes a single offense of simple possession for a small amount of THC residue or for “drug paraphernalia.” It also includes the spouse, son, or daughter of the inadmissible applicant if that person has, within the last five years, received any financial or other benefit from the illicit activities, and knew or reasonably should have known where the money or benefit came from. No actual conviction is required to trigger this inadmissibility.
- Convictions for two or more crimes for which the prison sentences totaled at least five years. It does not matter whether the convictions came from a single trial or whether or not the offenses arose from a single scheme of misconduct.
- Prostitution or commercialized vice.
- A serious criminal activity for which immunity from prosecution has been received
- Human trafficking offenses.
- Almost anything that has to do with money laundering.
- Do not even attempt to enter the U.S. if you have been previously deported without a proper visa. This is considered a serious felony under U.S. law and can result in extended jail time.
Crimes of Moral Turpitude
The definition of moral turpitude is very broad so we are listing the most common examples of this type of crime below. The actual offenses are ever changing. Some of them may be minor such as shoplifting, while others can be very serious such as murder. The actual penalty for the conviction does not matter.
- Passing Bad Cheques
- Assault Causing Bodily Harm or With Intent to Cause Harm
- Assault with a Weapon
- Assault with intent to cause bodily harm
- Aggravated Assault. “Aggravated felony” is even worse, though these also have a very loose definition, therefore the offences can change over time. However, there is absolutely no relief, and anyone deported or excluded for this reason cannot ever enter the US.
- Sexual Assault
- Trespass with Intent to Commit a CIMT
- Endangerment and Actual Injury
- Child Abuse in some cases
- Benefitting from illicit drug trafficking.
- Prostitution and commercialized vice.
- Involvement in serious criminal activity, where the person has asserted immunity from prosecution, departed the United States as a result, and not subsequently submitted to the jurisdiction of the relevant U.S. court.
- Human trafficking, whether inside or outside the United States.
- Laundering or aiding or abetting monetary instruments.
Crimes that Shouldn’t Prevent Entry to the U.S.
Not all crimes will result in being denied entry to the U.S.
- Crimes that are not considered moral turpitude include where the individual has committed only one crime of moral turpitude, and:
- the crime was committed when the individual was under 18 years of age and the crime was committed more than five years ago
- the crime did not exceed one year of imprisonment
- if the individual was convicted of the crime, but the individual was not sentenced to imprisonment for a term greater than six months
- Offences like fail to appear, causing a disturbance, common assault and impaired driving are not ordinarily considered in determining your admissibility to the country. In addition, multiple convictions involving crimes which are NOT classified as crimes involving moral turpitude ordinarily do not block your entry.
- The U.S. does not deny entry to persons with a conviction for “Driving Under the Influence” (DUI / DWI) despite how seriously Canada takes this type of offense. However, if there are multiple convictions for this and or other misdemeanors, you could be denied entry.
Acquittals and Non-Convictions
As we explained on our general page about Prior Criminal Offenses, if you have an arrest record for a crime and were charged but never convicted, or if you were acquitted, you should technically be able to enter the United States. However, this information will be on your criminal record and the U.S. Customs and Border Protection will have access to this information when you try to cross the border. If the border agent is concerned about something on your criminal record, even if it is not a conviction, you may have a problem gaining entry into the United States.
Pardons and Expungements
Canada and the United States generally do not recognize each other’s pardon and expungement policies. This means that having a record extension, (expungement) for a Canadian offense will not erase the conviction for the purposes of entering the United States. See our page on Prior Criminal Offenses for more discussion on this topic. A Canadian pardon may prove useful as evidence of rehabilitation in a U.S. Waiver Request but that is all.
The United States also treats a Conditional Discharge as a conviction. Even withdrawn charges remain in the law enforcement database, and may lead to problems at the border. This means that any person who has had a charge withdrawn should be prepared to produce proof of the withdrawal when they attempt to enter the United State
Admitting to Drug Use or Arrest at a U.S. Port of Entry
If you committed an offense but were never convicted you could still be denied entry to the United States. The most common examples of this are when the Port of Entry Officer asks “have you ever smoked pot?” or “have you ever been arrested, charged or fingerprinted?” If you answer yes, and describe anything which would suggest that you may have committed an serious offense, you can be deemed inadmissible even if there is nothing in your database record. There are also examples of people being prevented from visiting the country when they had made prior public acknowledgements of illegal drug use and those statements ended up in their FBI or RCMP record.
You should also realize that U.S. state and federal laws differ in many aspects. U.S. Customs and Border Protection officers are federal agents and enforce U.S. federal laws. State laws are different. Just because the state you are trying to enter has legalized pot means does not mean the border protection considers the possession or use of pot OK. If you admit to using drugs you can be turned away. If you are caught with possession of marijuana you can be arrested.
How Being Named in a Police Report Can Affect Your Travel Plans
Access to Canada’s RCMP’s Criminal Record database also gives the U.S. Customs and Border Protection access to police reports from across Canada. On some occasions travelers are unexpectedly detained at border crossings and/or barred from entering the U.S. even when they have no criminal record or have never been charged with an offense. For example, police records are created for some types of medical emergencies such as suicide attempts or traffic accidents even if no charges are ever filed. If you have even the slightest idea that your name may appear in a police report, it is best to contact your local police, RCMP and/or the CBP before travel to the U.S. to confirm that you won’t have problems at the border.