Anybody have any info advice about a Canadian entering the US w/ a criminal record?

[MissLianne]

*T.P.F has been a wealth of information in soo many areas... so I was hoping someone out there can help me*

Sooo it's my aunt and uncle's 25th wedding anniversary this year (December). My aunt is my Mom's sister whom had some terrible health problems over the last 5+ years. My Mom and Dad decided to give their family a 10 day vacation for their anniversary... my family, my dbf and my aunt/uncle cousins will be going on a 7 day Carribean cruise and spending a few additional days in Florida (my parents have timeshare). My aunt/uncles kids (my cousins) are both boys... 21 and 18 whom are very close to my family and ofcourse my parents. Since my aunt has been spending a lot of time in the hospital lately, my Mom invites my cousins over for dinner a lot.

So tonight as we were waiting for my older cousin M to join us for dinner... my Mom called him on his cell phone. Much to her surprise a police officer answered. The police officer asked my Mom to confirm the identity of my cousin M. My Mom (who watches wayyy too much Dateline NBC) asked the officer to put M on the phone to confirm he was there. Well he was, and my Mom kindly answered all the officer's questions but the officer wouldn't give out as to why my cousin was under investigation. Keep in mind my cousin has never been in trouble with the law before.... so this was shocking to us.

For 2+ hours my Mom and I contemplated as what to do. My mom didn't want to call my aunt/uncle bc they just dont need further stress right now. So my cousin calls around 6:30pm and says he's just driving over to our house and would talk to us when he gets there.

Cousin M got involved in some *stupid* scheme to open bank accounts in another person's name and cash cheques. It wasn't HIS master plan, his "friend" made fake a ID and Social Insurance # of an actual PERSON and put my cousin's picture on it. All he had to do was go into the bank and open the account and he was *promised* $10K which he says was to pay off his remaining student loan(s).
TRUST ME ... WE GAVE HIM $HIT FOREVER!!!!

My cousin didn't get arrested... when he was at the bank the ID looked fishy and they called the authorities to confirm the nature of the ID? When asked by the cops whether the ID was truly him... my cousin admitted it wasn't. He was brought to the cop car in the bank parking lot in handcuffs... investigated/interrogated in the cruiser for an hour. He was then released and hopped into his car that was in the bank parking lot. The cop instructed him that he had to go in for fingerprinting in 30 days and has a court date Dec. 10 but wouldn't have trial until next year (backlog in court dates I guess?). He wouldn't receive jail time as he's been charged with "Under $5000" in theft/fraud. He's NEVER been in trouble in the law before but will need to get a lawyer/pay a fine.

My Mom said she wasn't going to tell my aunt and told my cousin he would have to deal with the consequences... it would be up to HIM to tell and upset his already struggling Mom.

After my cousin left my Mom brought up a valid point: WOULD HE BE ALLOWED INTO THE U.S.A? Keep in mind my parents just pre-paid a $15,000 trip for their family and ours!

I kind of did some quick searching via google and came up with conflicting answers. The safe bet being to process a I-192 US Homeland Pre Admittance form.... another websites said you simply didn't have to state your record UNLESS you were asked?
Which is true? And what is the cost/timeline in processing ^ said form?

We leave Jan 20. help!

[bnjj]

What is the Dec. 10 court date for? I don't understand why this would go to trial. He would just plead guilty on Dec. 10, would he not? If not, then if it does not go to trial until some time next year, he won't have a criminal record by the time you leave for your trip.

[flashy.stems]

it should be fine before you leave for the trip, since he has a scheduled court date a month and a bit beforehand.. but id still get him to look into it, possibly go down to the station?

[MissLianne]

^^I have nooo clue. Nobody has ever been in trouble w the law.

I know though he wasn't arrested and wasn't charged (yet). The December 10 court date is a "Promise to Appear" in court. Would that court date be when he either pleads guilty or not guilty? If he pleads guilty to a lesser charge then what happens? There would be another court date?

IDK if that's helpful to you.

[bnjj]

There isn't a lesser charge than 'theft under' when someone is being charged with theft. Now fraud and identity theft charges, I have no idea.

This whole thing makes no sense to me. Why the cop would tell him to go for finger printing w/i 30 days and then have court date and then go to trial when I would think your cousin will simply plead guilty just doesn't make sense to me. You must be in a different province than I.

As long as he has not been convicted before you guys leave, he does not have a criminal record.

[Cyndee]

If he's going for fingerprinting and he's got a court date, then he's been charged with an offense. You said it yourself, he's been charged with 'theft under $5000'. He was arrested and released on the promise to appear in court on Dec. 10. If he doesn't show up, a warrant for his arrest will be issued.

As of now, he has a police record. Whether or not he's convicted, he still has a record. It will show up in the computer when he presents his passport at the border. I don't know exactly when that will happen, but it will happen. When he goes to cross the border, he will be asked if he has ever been charged with a criminal offense. I don't recommend that he lie and say no as they will know from seeing it on his passport. He should respond yes, and he will be sent inside to report to an immigration officer. They will likely then ask the details. It will be up to the border/immigration officer as to whether they want to let him into the country or not. Given the nature of the crime and the relative recent timeframe, I wouldn't hold my breath that they'll let him in.

I suggest that he take a 'trial run' down to the U.S. at least once and try to cross the border prior to your trip in Jan. It will give him an idea as to whether or not he is going to have a problem in January.

In the end, even if the charge gets dropped or he's found not guilty, he'll still have a record. He'll have to apply for a pardon to get it completely removed from his record and even then, it does not guarantee that it will be removed from his passport. Once it shows up on his passport, the U.S. border keeps that info on their records indefinately, so it may very well be something that will now dog him the rest of his life.

[MissLianne]

Awww man.
Thanks for the replies.


Do you know anything about applying for the US Pre Clearance form (I-192)
I.E since this is a new form.... Can he still apply?

[bnjj]

Perhaps this will give you more information:

http://www.pardons.org/content.phtml?page=08

And I'm sorry if I gave incorrect info above - I did not think one would have a record until convicted.

[MissLianne]

Thank you very much for your posts ladies:

Now I have a more specific question.... My cousin talked to the lawyer today.... apparently this is the way it works:

NOV 30: He has to go for fingerprinting at the courthouse
DEC 10: He has his "first appearance" in court (which from what I've been explained is when they basically will say this is what you are charged with etc). This is when he will decide if he needs a lawyer?
.... he will then be given a court date 6mos to 1year after

Now, since he will 100% still be "innocent until proven guilty" will this effect our travel plans? I got in touch with the US Border Pre-Clearance at Pearson Int'l airport and they were rude... as soon as I said "pending charge" they were like "ohh no ... we don't allow anyone into the US with criminal charges?"

I then got in touch with the pardons.org over the phone.... they said a US Waiver is ONLY for a convicted charge. They could give me the necessary docs that will state exactly what his charges are... and what we are planning on doing in the U.S


I just feel bad for my Mom/Dad... the final depost is due soon for the cruise.... the flights have already been booked throug Expedia who won't refund

[Cyndee]

MissLianne, please go back and read my original post again. I have first hand experience with situations such as this. Whether he actually gets convicted or not, he now has a record. Innocent or not, he has a record. I do know this for sure. There's no getting around it on a 'technicality'.

The court date in Dec. is just a legal formality. Even if he goes to court and they were to say, "oh we made a mistake, we withdraw the charge.....you are free to go", (although it sounds like that's not likely to happen) he still has a record. An innocent person that has been charged with an offense (charges were dropped, withdrawn, there was no conviction, etc), has to apply for a pardon to have it removed from their police record and to have the file destroyed and the fingerprints removed from the system. That pardon takes about a year in total for a person to obtain. The local police jurisdiction has to approve it, the RCMP has to search their files and approve it and once both of them agree to the pardon, the final notification has to be sent to the federal records dept. for removal. It sucks and it doesn't sound fair, but that's how it works. Given all of that, it still does not guarantee that the U.S. government will not also remove it from their own records. They can and probably will retain it and ask your cousin about it each time he wants to cross into the USA.

Here is one example - I know someone who is over 40 yrs old. As a teenager, he was charged and convicted with possession of a single marijuana joint. To this day, he cannot cross the border and visit the USA. He has obtained a pardon from the Cdn government, but they still won't let him into the USA.

I can give you another example. A woman charged with 'theft under $5000' as the result of a minor domestic dispute while she was going thru a separation. The ex lied and said that she had taken his wallet and some papers from his residence. The charge was quickly withdrawn and no conviction ever took place. This happened 15 years ago. Every time she crosses the border to enter the USA, she presents her passport and they single her out and ask her if she has ever been charged with a criminal offense. This happened as recently as this past August. She has to go inside and speak with an immigration officer where they ask for the details. Ultimately, they allow her to cross but they have made it clear that they have every right to deny at any time. I helped her apply for her pardon, which has been granted by the Cdn government, but she has been told that it does not guarantee that it will no longer show up on the U.S. system as they often will retain the information on their records.

Honestly, it does not look good for your cousin. As I said, I would advise him to do a 'dry run' and head down to the USA perhaps even a few times over the next couple of months and see what happens when he presents his passport and tries to cross the border. The worst that will happen is they will ask him about the situation and if they deny him access, they will simply turn him back. It will be the best indication of what will happen in January. If he gets denied in Nov. and /or Dec., then he'll most certainly be denied again in Jan.

[MissLianne]

Thank You Cyndee............
I just wanted to provide more information.

When crossing the border must one declare you have a record? I understand when asked...that you must.

I need to call Expedia for my Mom see what we can do... I doubt nothing.

[Cyndee]

He does not have to offer the info...never volunteer the info. However, he must produce his passport to the border guard. That is where the info will show up. That will prompt the border guard to ask the question - 'Have you ever been charged with a criminal offense'. If asked that, he absolutely must tell the truth. Yes, he has been charged. The record will show the charge, not the final outcome of guilty or innocent.

The only piece of this puzzle that I don't know is how fast it is going to show up. So again, it may be best to do a dry run to the USA before the big date.
Honestly, if you go calling here and there, I wouldn't be giving any names or other details. I don't think that you should be setting off any alarms or such when you don't even know at this point if it's even going to be a problem for sure.

[bnjj]

ML, if you take a look at the link I posted, it said that the border guards will likely turn away a person who has ever even been finger printed until that information is sealed.

I don't think it looks good for your cousin.

ETA - I don' t think that link worked. This is what I was linking to:

http://www.pardons.org/us_entry_waivers.html

[Cyndee]

^bjj's link above contains some excellent info and supports the information I have given you as well.

Here's the info that is most particular to your situation:

Strictly speaking, there are some criminal offences which should not affect your travel to the U.S. because they are not grounds for inadmissibility according to U.S. law. One such offence is driving while impaired, commonly known as drunk driving. The problem, however, is that the U.S. immigration officials at the border turn people away for every kind of criminal record, even in cases where the charges were withdrawn. Essentially, anyone who has a fingerprint number (FPS#) associated with their name and date of birth will likely be turned away.

It is best to seal or destroy your criminal record before attempting to enter the U.S. This way, you will no longer have an FPS# associated with your name, and your record will not appear on any search conducted by INS.

In a nutshell, it looks like basically once he's fingerprinted next month, his record will be accessible by the INS and the FBI and he's toast as far as traveling to the USA is concerned. But if he wants to know for sure, tell him to head down to Niagara Falls and try to cross sometime between late November-early January.
Even if he were wanting to try to apply for an entry waiver, it takes months and months to obtain that document and it looks like you don't have that kind of time on your side here.

For many years, people with a record were able to cross the border easily. All you had to do was state your name and maybe produce a driver's license. Now though with everybody having to show a passport in order to cross, things are VERY different. One swipe of the bar code on that passport and border guards have access to all kinds of info including criminal records and such.

[MissLianne]

Thanks ladies...

My Mom is going with my cousin tomorrow afternoon to meet w/ 2 different lawyers (to compare and contrast costs and what they can do for him)

Would you advise we consult the lawyer as what to do in this situation? Are they a reliable and valuable source?

^I'm sorry if my questions seem naïve. I have never had a friend/family member involved in the law before. So all this is very new to me. I just knew (as always) SOMEONE on TPF would provide reliable and resourceful information :)

Thank you again. I really appreciate it.