Pubdate: Thu, 21 Feb 2008 Source: FFWD (CN AB) Copyright: 2008 FFWD Contact: http://www.ffwdweekly.com/ Details: http://www.mapinc.org/media/1194 Author: Donna Kay I HEAR YOU KNOCKIN' Crossing U.S. Border With A Criminal Record Can Be Difficult, Expensive In 1988, during the Reagan administration's war on drugs, a zero-tolerance drug policy was implemented at all U.S. ports of entry (POE). Individuals in possession of any measurable amount of illicit drugs were arrested and charged with both a misdemeanour and a felony offense. In theory, by implementing harsh penalties on the user - the root cause of the drug problem - supply and demand for illicit drugs would diminish. Justice was served on July 7, 1994 when I was arrested at the Del Bonita POE in Montana and charged with "criminal possession of dangerous drugs. 0.25 g of MJ [marijuana]". It proved to be a bad day for returning home to Canada, as the American border official discovered rolling papers on my friend, then a forgotten joint in a cigarette package. After a clean body search (flashing our nakedness to the female border official, proving we weren't hiding any more drugs), my friend and I were transported to the county jail and spent the night wearing complementary orange jumpsuits and black slippers. The next day, each of us paid the monetary penalty of $500 US before we were released. Stupid is as stupid does. The county deputy even told us we should have eaten the joint. Despite the conviction, I travelled to the United States for several years without proper papers. Then fate caught up with me in February 2005 at the same POE when the border official asked, "Have you ever been arrested?" I answered "yes," and as the word came out of my mouth, I wanted to hightail the car in reverse, but I was already within the jurisdiction of the U.S. Department of Homeland Security (DHS) and Customs Border Protection. It took five hours for my criminal record to be found in the American police database National Criminal Information Centre, before my fingerprints, photo and inadmissibility were permanently recorded in the U.S. Citizenship and Immigration Services database. I was officially banned from the U.S. I recently called the Montana ID Bureau, Criminal Records to see if I could get my charge dismissed. Since 14 years had passed, I was hoping I might be "deemed rehabilitated" or something similar to the Canadian way of overcoming criminal inadmissibility. A friendly woman named Michelle informed me this was not an option since I had been convicted of the crime. If it were a deferred sentence where I had done community service or something to that effect, it would have been possible to have the record sealed. I now had to do what an increasing number of Canadians have been forced to do, apply for advance permission to enter as a nonimmigrant, a waiver of inadmissibility issued by DHS to non-citizens with criminal records. A waiver should not be confused with a pardon. It is a common misconception that a pardon will allow you entry into the U.S., but this is not always the case. A pardon removes a past criminal offence from public record and is granted by the National Parole Board of Canada, not the U.S. government. DHS may still be able to detect the record in its database, and since the pardon seals your record, you will need to explain the nature of your offense to DHS. A pardon is not recommended for those seeking entry into the U.S. In 2007, over 3,500 waivers were issued to Canadians who had offenses such as drug possession, shoplifting, fraud. (Those with a DUI can relax, DHS does not see this criminal charge as a reason for refusal of entry.) Prior to September 11, 2001, waivers were permanent. Today, a waiver is only good for one to five years. Each application fee is $545 US (before July 30, 2007 it was $265 US) and generally takes six to eight months to get processed. A waiver can be obtained quicker under compelling reasons like a medical emergency, or by obtaining a port of entry parole, which can be granted at the POE at the discretion of the supervisory immigration inspector. This can be granted, for example, to a firefighter crossing to assist in an emergency. Completing a waiver application can be a daunting process itself - dealing with the RCMP, the courts, obtaining personal letters and filling out form after form. If an application is incomplete, it will not be approved. On the other hand, there is no guarantee a complete application will be approved either. Vance Langford, a commercial and immigration lawyer with Burstall Winger LLP and a former Canadian Immigration Officer says, "Yes, you can do it on your own, but we [lawyers and professionals with experience] definitely add value in terms of your probability of success, based on filing a complete application that addresses all of the important issues, using current forms, fees, monitoring the application to ensure its timely processing and having ongoing access to information. Many of our clients require certainty and cannot afford unforseen delays with respect to their waiver applications, whether they are travelling for business, family, medical or other reasons. We do not expedite the process. Applications are processed by the U.S. Department of Homeland Security in the order they are received." Nonetheless, hiring a lawyer for approximately $2,500 does have some advantages. Langford's office normally takes one to two weeks to complete a client's application and has never had an incomplete waiver application returned. In the past year, he has seen a significant increase for waiver application services. "I am currently working on five waiver applications which, I am told by a colleague and immigration attorney at a major U.S. firm, is significantly more than they have done recently." Another venue for assistance is the National Pardon Centre (NPC). With offices in Montreal and Calgary, NPC is a non-profit organization dedicated to helping Canadians apply for waivers and pardons. "Our Calgary office opened in January 2006 and has grown from three employees to six," says Birgit Granberg, regional director of NPC West Coast operations, "In 2007 we opened 1,100 new files for both pardons and waivers. The rush service for obtaining a waiver takes, on average, one year [including the DHS processing] and costs $750; whereas our regular service normally takes one and a half years and costs $550." The NPC keeps copies of all of its clients' applications, but problems can occur. "The system can be chaotic. DHS will report missing documents or loss of an application and even though we know we sent a complete application, there is no arguing with the U.S. government." There is also no arguing that the process is a miserable, lengthy and expensive one, but a waiver is often the only option for those who have been denied entry by DHS. Of course, if you can't do the time, then don't do the crime. Or, just eat the joint. - --- MAP posted-by: Derek