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.