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Expungement & Entry into Canada: Still Inadmissible?
In the last 25 years of practice, we have had dozens of clients and others who call our office to learn more about whether a conviction for DUI means he or she will not be permitted to enter Canada, or “inadmissible.”
The person may have an important meeting for work there, or the person may be part of a wedding there, or the person may seek to visit family in Canada.
The caller is usually generally aware that one’s legal history in the United States may cause Canadian immigration authorities to refuse entry to the person. Canada will find a person is inadmissible if that person has a dangerous or infectious disease, has an inadmissible family member, or has a criminal history for terrorism, violence, theft, possession of drugs, sales of drugs, espionage, being involved in organized crime, or having a history of DUI.
The person may be denied entry at a port of entry in Canada or upon applying for a visa of Electronic Travel Authorization (eTA). It merits mention that one may not apply for an eTA unless that person, if he has a criminal record, has first been deemed rehabilitated (see below for more information on rehabilitation).
The person may then need to apply for a finding of rehabilitation or a finding that the record was “suspended” to enter Canada.
We believe the most common reason for being found inadmissible is having a history of DUI. Indeed, there are many clients of ours who have been denied entry into Canada after having a DUI arrest or conviction in California.
If one has a pending DUI case or the person is on probation for DUI, the person usually is inadmissible. However, the person can apply for a Temporary Resident Permit (TRP), which costs $200 in Canadian dollars and may still be denied.
However, what about if one has the DUI conviction expunged, we are often asked. The U.S. Criminality Assessment Guide at page 8 published by the Canadian Consulate in New York City (where all rehabilitation applications are done) specifically states that a visitor with a California expungement is no longer inadmissible.
It explains that based on legal reviews the effect of dismissal pursuant § 1203.4 of the California Penal Code, such relief is regarded as equivalent to a Canadian record suspension. As such, an applicant who has been accorded relief under Penal Code § 1203.4, would not be inadmissible as per subsections A36(1)(b) or A36(2)(b) of the Immigration and Refugee Protection Act (IRPA).
Therefore, in the absence of any other criminality, the client in question is not criminally admissible.
However, the IRPA states that when faced with other convictions involving a dismissal under section 1203.4, the assessing officer should look at the circumstances of the particular offence to determine whether any valid reason exists not to recognize expungement.
We believe a finding of inadmissibility, despite receiving expungement, would be unlikely because expungement is generally associated with less serious crimes. However, with the easing of so many forms of post-conviction relief in California, including in expungement, this general rule may be reconsidered by Canadian authorities.
If one has a serious concern with being inadmissible, we recommend one try to clarify one’s status before landing or arriving in Canada, only to be told that entry is being denied. One should reach out to an immigration attorney in New York and apply for a finding of rehabilitation before leaving the United States (one is ineligible for rehabilitation if the crime committed outside Canada would have a sentence, if committed in Canada, or ten years or more). One is eligible for rehabilitation if more than five years have passed since one finished probation for the crime, if probation was granted.
The person may have an important meeting for work there, or the person may be part of a wedding there, or the person may seek to visit family in Canada.
The caller is usually generally aware that one’s legal history in the United States may cause Canadian immigration authorities to refuse entry to the person. Canada will find a person is inadmissible if that person has a dangerous or infectious disease, has an inadmissible family member, or has a criminal history for terrorism, violence, theft, possession of drugs, sales of drugs, espionage, being involved in organized crime, or having a history of DUI.
The person may be denied entry at a port of entry in Canada or upon applying for a visa of Electronic Travel Authorization (eTA). It merits mention that one may not apply for an eTA unless that person, if he has a criminal record, has first been deemed rehabilitated (see below for more information on rehabilitation).
The person may then need to apply for a finding of rehabilitation or a finding that the record was “suspended” to enter Canada.
We believe the most common reason for being found inadmissible is having a history of DUI. Indeed, there are many clients of ours who have been denied entry into Canada after having a DUI arrest or conviction in California.
If one has a pending DUI case or the person is on probation for DUI, the person usually is inadmissible. However, the person can apply for a Temporary Resident Permit (TRP), which costs $200 in Canadian dollars and may still be denied.
However, what about if one has the DUI conviction expunged, we are often asked. The U.S. Criminality Assessment Guide at page 8 published by the Canadian Consulate in New York City (where all rehabilitation applications are done) specifically states that a visitor with a California expungement is no longer inadmissible.
It explains that based on legal reviews the effect of dismissal pursuant § 1203.4 of the California Penal Code, such relief is regarded as equivalent to a Canadian record suspension. As such, an applicant who has been accorded relief under Penal Code § 1203.4, would not be inadmissible as per subsections A36(1)(b) or A36(2)(b) of the Immigration and Refugee Protection Act (IRPA).
Therefore, in the absence of any other criminality, the client in question is not criminally admissible.
However, the IRPA states that when faced with other convictions involving a dismissal under section 1203.4, the assessing officer should look at the circumstances of the particular offence to determine whether any valid reason exists not to recognize expungement.
We believe a finding of inadmissibility, despite receiving expungement, would be unlikely because expungement is generally associated with less serious crimes. However, with the easing of so many forms of post-conviction relief in California, including in expungement, this general rule may be reconsidered by Canadian authorities.
If one has a serious concern with being inadmissible, we recommend one try to clarify one’s status before landing or arriving in Canada, only to be told that entry is being denied. One should reach out to an immigration attorney in New York and apply for a finding of rehabilitation before leaving the United States (one is ineligible for rehabilitation if the crime committed outside Canada would have a sentence, if committed in Canada, or ten years or more). One is eligible for rehabilitation if more than five years have passed since one finished probation for the crime, if probation was granted.
However, we also understand that one may not have the time necessary to do this and will instead simply fly to Canada and hope that is permitted to enter. We hope this article therefore provides some peace of mind for such visitors.
For more information about inadmissibility into Canada, please click on the following articles:
