United States Waiver of Excludability (I-192)

U.S. Immigration law lists a large series of limitations people face when seeking entry to the United States. These bars to entry can include persons belonging to certain political groups, (especially those considered to be connected with terrorist activities), those suffering from certain diseases as well as those with certain criminal records. The description of such records is often referred to as Crimes Of Moral Turpitude or C.M.T.s.

Although this list is not complete -among the many specific offenses that the U.S. government and courts have determined to be CMTs in individual cases are:

• murder
• voluntary manslaughter
• involuntary manslaughter, in some cases
• rape
• spousal abuse
• child abuse
• incest
• kidnapping
• robbery
• aggravated assault
• mayhem
• animal fighting
• theft
• fraud, and
• conspiracy, attempt, or acting as an accessory to a crime if that crime involved moral turpitude.

However, the above list contains only brief summaries of various types of crimes. Most criminal convictions are based on state law, so their actual definitions will be lengthier and more complex. The details within the language of the statute may potentially affect the determination of whether a particular crime is a CMT.

For the purposes of this conversation about C.M.T. criminal records, we will consider only those cases where Canadians have prior criminal convictions that prevent them access into the United States.

It is no secret that the U.S. can access a current Canadian criminal record via the C.P.I.C. database by request as a result of an agreement with the Canadian government whereby information of this nature is traded back and forth between both countries on a day-to-day basis. Access to C.P.I.C .is given to the U.S. as is similar permission to enter the F.B.I. database by Canadian enforcement officers to assist with any number of problems associated with what both countries view as the entry of undesirables into either country.

The upside to this agreement is, of course as both countries would tell you, about maintaining a social security safeguard aimed at protecting citizens coming into or exiting Canada and the U.S.

On the downside of things, both Canada’s and the U.S. definition of undesirables is wide-ranging and covers many situations. Again, the variations within these acts and the laws therein are multiple and too numerous to mention here. Nevertheless, let it be said one of those situations that continues to cause Canadians any amount of confusion with the interpretations of Canadian law and what it means to have been granted a Canadian Criminal Record Suspension which is supposed to do away with the aforementioned ongoing prejudice visited upon those who have past criminal records. In short, the bad news is that the American government does not recognize the Canadian Criminal Record Suspension in any way, shape, or form. This includes the protection it is supposed to offer.

To put it mildly, problems often arise for Canadians when an individual is granted a Criminal Record Suspension and mistakenly assumes that his/her criminal record will no longer effect his/her U.S. entry status. The main reason for this confusion rests with the fact that the U.S. does not recognize the Canadian Record Suspension as being the sufficient evidence needed to allow you travel privileges in their country. This, they will tell you, is not part of their judicial process and as such has absolutely no validity when it comes to the criteria in making a decision as to whether or not you will be allowed access into the United States. If you admit to a current or past criminal record, regardless of whether you have been granted a Criminal Record Suspension you may still find yourself being denied access.

This may pose several very interesting questions. The most often inquiry asked of us is “If a Canadian has a Criminal Record Suspension or Canadian Criminal Record Pardon and the information concerning their record is then sealed, is it possible for the U.S. to still access this information?” The usual answer given by many Canadian authorities most of the time is “ no.”

Yet, nothing could be farther from the truth.

For instance, we know the information collected by the U.S. from Canadian sources prior to the granting of a Canadian Criminal Record Suspension remains within the F.B.I. N.C.I.C. and can be used to profile you and deny access into the U.S. should it be felt there is a need to do so.

For example, if you were ever stopped while entering the United States and asked, “Do you have a criminal record?” and answered “yes”, normally an inquiry is conducted to determine the seriousness of the offense. Should you then be denied access, a file is created noting the particulars of the offense and the fact that you have been denied entry. You are then usually told that you will have to make an application for a U.S. Waiver of Inadmissibility should you wish to legally enter the U.S. Should you ever attempt to enter the U.S. again without having made this application and the U.S. authorities determine the same, you are liable to be subjected to fines, imprisonment, and the confiscation of the vehicle in which you made your entry. Whether it is your car or that of a friend or relative makes no difference as they are considered to be a party to the action (A.K.A. aiding and abetting an illegal entry). The fact you later received your Canadian Criminal Record Suspension and had your criminal record “ permanently sealed” in Canada does not alter the U.S. criminal record database in Virginia one iota. That record remains there, active and nothing can be done to alter that.

In the case where you have never attempted a U.S. entry, now have received a Criminal Record Suspension, and wish to enter the U.S., a different scenario arises. If upon entry to the United States, you are questioned as to whether or not you have ever had a criminal record and you answer “yes” but have been granted a Canadian Criminal Record Suspension you will be still treated as before and the seriousness of your offense will be determined so as to ascertain whether or not you should be allowed entry. In other words, as previously mentioned the U.S. government does not recognize a Canadian Criminal Record Suspension as being sufficient proof of a complete rehabilitation. If your previous criminal record fits the CMT profile a file will be created and registered forthwith. As stated before that record remains there, active and nothing can be done to alter that.

Last but not least: If you have a Canadian criminal record that has been Pardoned and upon entry to the United States you are questioned as to whether or not you have ever had a criminal record, you answer “no ” and the U.S. border authorities run a check through C.P.I.C. what is suppose to come back, at least at the primary level is the following notation: “No Record”.

However, two problems arise here. First, if you answered “No” do you consider that a lie? In making that statement is it fair to say you knowingly avoided telling the truth to mislead a U.S. border-crossing official? Sir/Madam do you know what the definition of perjury is? Give it some thought.

Let us be perfectly clear about this: regardless of what you have heard to the contrary, if a U.S. Homeland Security and Border Protection officer finds out you have at best unknowingly misled him or her or at worst lied, be assured they view the matter as a most serious breach of their immigration policy. You are leaving yourself open to deportation, fines, imprisonment, confiscation of your vehicle, and more notably the possibility you may be denied access to the United States permanently.

To put it most succinctly, we have also come to believe that United States government computer surveillance, being what it is today, allows for such authorities to determine whether or not such a record has existed in the present as well as the past, regardless of what the Canadian government claims is a different policy agreement.

We shall not comment on why we believe this state of affairs to be accurate as actual proof of the same cannot be adequately determined. However, we know of at least one case where such a situation came to exist. The person, who, upon entry to the U.S. being of the opinion his Canadian records had been deleted, mislead the U.S. authorities at the time of his admission. He formed a company in Hawaii, which became very successful, eventually married an American, and became the father of two U.S. citizens. Several years later, he was found to have lied at the original date of entry and was then deported. To date, although several appeals have been in the process over the years, he continues to be denied access. Exactly how he was found out has never been determined. It is suspected the American authorities must have been able to access information previously thought to have been destroyed years after the fact.

There is one other piece of information you also might wish to consider. Access to a Record Suspension file can be obtained by asking for the same via a request for this information under what is known as the Privacy Act. If this is your record and you personally request that information to be released it will be sent back to you when you make that application. This is the method you use when you have a Criminal Record Suspension and are making a request for a U.S. Waiver application or if immigrating to the United States. Details of your Pardoned Record, including any discharge, will show up.

The United States government knows this. Let us say you are in the process of making a United States immigration application to go live in the United States as a citizen. Perhaps you want to open a business there or marry an American and become a citizen. If the U.S. authorities there are of the opinion that you may have had a criminal record that has been suspended or discharged and they want to know about it, they can ask you for it. They simply tell you to make a request under the Privacy Act for anything that might be available in that directorate. Of course, if this turns out that there was a criminal record and you have misled them they consider that a grounds for your excludability or even arrest.

We, therefore, strongly suggest that if you wish to enter the United States for whatever reason and have had a past run-in with the law be very clear about what makes you inadmissible. When crossing the Canada / U.S border be very clear as to whether or not you are making a legal or illegal entry there. Do not mislead any American law official in any way shape or form. Their whole reason for being there is to seek out what they consider“ undesirables “ and restrain them from entering the United States. They are very good at it. Furthermore, they do not fool around when it comes to doing their job. They have some very incredible tools when it comes to performing it. The other thing to remember is that incarceration is one of those tools and everything you have heard about the prison system in the United States is true. It is no joking matter and as an “alien“ your rights are not that of an American. They are severely limited, if almost non-existent. Furthermore, the expense of retaining a U.S. attorney to assist you. should you be confronted with an illegal entry, is something that you’d be advised to avoid at all costs. Compared to Canadian lawyers, to put it mildly, their fees are usually far more excessive.

If you have to make an application for a U.S. Waiver of Inadmissibility do so in a manner that is straightforward and as honest as is possible. Do not do so with a view to misleading anyone. With or without intent. We think to do otherwise may be an invitation to court disaster.

In summing up this part of our introduction let it be noted there are a number of people out there who have stated that once you have a Canadian pardon no one can access the CPIC data bank where the information is stored so there is no reason to tell U.S. authorities about a past criminal record when asked about the same.

Aside from the moral and ethical questions so posed about the validity of
answering “no” when indeed the answer should be “ yes “ is the person or company suggesting you do not have to answer honestly aiding and abetting an illegal entry into the United States?

In our opinion, the answer should be “yes”. Furthermore, is that person who gave you that misinformation willing to appear to admit to the same said statement if and when you are arrested, detained, and sent to trial for trying to make an illegal entry into the United States? Will they be willing to help pay your legal fees if, indeed, this comes to pass? Will they even remember you and the conversation you claim you had with them?

Think about it.

The answer undoubtedly this time will be “ No.” And that can be a very unpleasant wake-up call.


If you have any further questions about this situation be sure to contact us and we will try to determine exactly what your personal set of particulars will mean. Our conversation time is always free of charge. If we are engaged to actually help you with an application, there will be fees and disbursement costs to be considered. Each case is unique so most likely are the fees that go with it.

Should you wish to have us or one of our affiliates assist you with the processing of your application we can also discuss that with you.

Thank you for your kind consideration in this matter and if you need any further assistance please do not hesitate to call.

Yours sincerely,

Michael J. Finner
email: mjfinner@telusplanet.net