Area of Law: Criminal Records
Answer # 2205
Can someone with a conditional or absolute discharge enter the USA?Region: Ontario Answer # 2205
In Canada, a discharge means that a person was found guilty but was not convicted. A discharge can be either absolute (where no punishment or conditions are imposed) or conditional, which carries a punishment (usually a small fine or probation).
Technically speaking, although discharges are not convictions, the USA immigration department does consider conditional discharges to be convictions. This means that having a conditional discharge may make someone inadmissible if it is in relation to a crime involving moral turpitude (CIMT) or drug offence. Either way, it is unlikely that a CBP officer will endeavour to make this distinction and render a decision on the spot. There is a high probability that the CBP officer will turn the person away no matter what the outcome of the charges were.
The best solution is to submit a USA Entry Waiver application and the Admissibility Review Office (ARO) will determine if the person is inadmissible. If a Waiver is not needed because the crime was not a CIMT the individual will be given an official ARO letter stating that fact, which will need to be produced every time they cross the border. The Waiver application fee is not refunded. If the ARO determines that a Waiver is needed and the application is successful, you will be issued a Waiver. Showing up at the border without this letter, or the Waiver if the crime was a CIMT is risky, and will most likely result in the person’s being turned away.
If you have been charged with a criminal offence, refer to our criminal law section.
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