How Lawyers can get you into Canada even with a San Diego California DUI conviction

Any one wanting to go to Canada with a San Diego California DUI conviction (or any criminal conviction) needs special consideration starting with how it makes one excluded from Canada, how attorneys can help one get around "exclusion" from Canada, and how someone ineligible for "rehabilitation" can still get in through the help of immigration lawyers.

1. San Diego California DUI conviction makes you Excluded from Canada.

            Most California people think anyone can enter Canada.  It is not automatic.  Most folks can get in if they have no criminal record.  But if you have a San Diego California DUI criminal conviction, here's the nuts-and-bolts of what it means.

A San Diego California DUI is a felony in Canada and therefore an excludable offense under the Immigration Act.  A San Diego California DUI is an indictable offense in Canada that may be punished by imprisonment for up to a five year term.  Anyone with a conviction in the U.S. that is treated as a felony or indictable offense in Canada is excludable from Canada, but even if the offense is not a felony or indictable offense in Canada, Customs and Immigration Officers have ultimate authority to permit and deny entry to Canada. 

Nearly all criminal convictions (including a San Diego California DUI, DWI, reckless driving, negligent driving, misdemeanor drug possession, all felonies, domestic violence, theft, shoplifting, some assaults, etc.) can make someone inadmissible to Canada, regardless of when they happened. 

It is not recommended that persons with past convictions, including a San Diego California DUI criminal conviction, attempt to enter Canada without first retaining an immigration lawyer and obtaining necessary documents. It is always the final decision of officers at ports of entry to decide whether a person should be allowed into Canada.

Exclusion is codified in Canadian law.  The Canadian Immigration Act, in § 19; states: 

(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:

(a) persons who have been convicted in Canada of an indictable offence, or of an offence for which the offender may be prosecuted by indictment or for which the offender is punishable on summary conviction, that may be punishable under any Act of Parliament by a maximum term of imprisonment of less than ten years, other than an offence designated as a contravention under the Contraventions Act;

(a.1) persons who there are reasonable grounds to believe

(i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years, or

(ii) have committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years, except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be;

Later, in § 3 of the Immigration Act, there is a provision that permits discretionary entry:

A senior immigration officer or an adjudicator, as the case may be, may grant entry to any person who is a member of an inadmissible class described in subsection (2) subject to such terms and conditions as the officer or adjudicator deems appropriate and for a period not exceeding thirty days, where, in the opinion of the officer or adjudicator, the purpose for which entry is sought justifies admission.

The Canadian Consulate emphasizes entry is discretionary, and in the post-"9/11" era,  immigration officers are more typically exercising their discretion to deny entry than to grant entry. 
 
Fortunately, there is a permit process requiring prior application which may permit an otherwise "excludable" person to enter Canada.  Retaining a Canadian attorney is always recommended.

Information on the permit is on the consulate general’s website.  Visits may permitted up to 30 days.  Once approved, may be re-approved when application is again made within a subsequent 3 year period. 

2. Getting Around San Diego California DUI Conviction Exclusion from Canada

There are several ways individuals can overcome criminal inadmissibility arising out of  a San Diego California DUI criminal conviction, but there is no quick or easy way to do it.  These include:

A        Deemed rehabilitation at a Canadian port of entry;
B        Streamlined rehabilitation at a Canadian port of entry;
C       Approval of rehabilitation through a Canadian Consulate in the United States; and
D       A Temporary Resident Permit through a Canadian Consulate in the United States.

1.  Deemed Rehabilitation of a San Diego California DUI Conviction.

Persons are eligible to apply for deemed rehabilitation at a port of entry if the following are true:

1        There was only one conviction in total;
2        At least ten years have elapsed since all of the sentences for the conviction were completed (payment of all fees, jail time completed, restitution paid, etc);
3        The conviction would not be considered serious criminality in Canada (most felony convictions in the  United States are equivalent to serious criminality in Canada); and
4        The conviction did not involve any serious property damage, physical harm to any person, or any type of weapon.

2.  Streamlined Rehabilitation of a San Diego California DUI criminal conviction.

Persons are eligible to apply for streamlined rehabilitation at a port of entry if the following are true:

1        There were two or less convictions in total;
2        At least five years have elapsed since all of the sentences for the conviction(s) were completed (payment of all fees, jail time completed, restitution paid, etc);
3        The convictions would not be considered serious criminality in Canada (most felony convictions in the United States are equivalent to serious criminality in Canada); and
4        The convictions did not involve any serious property damage, physical harm to any person, or any type of weapon.

3.  Deemed & Streamlined Rehabilitation Applications.

Deemed rehabilitation and streamlined rehabilitation applications are processed at Canadian ports of entry. Submitting an application for rehabilitation does not guarantee that the request will be approved.  That is why use of immigrations attorneys is recommended.
To apply for either, the person with a San Diego California DUI criminal conviction must bring the following documents to a port of entry during regular business hours (Monday - Friday between 8am and 5pm):
1        A United States passport or birth certificate (with photo identification);
2        A copy of court documents for each conviction, and proof that all sentences were completed;
3        A recent FBI identification record;
4        Recent police certificates from the state where the conviction(s) occurred, and from any state where a person has lived for six (6) months or longer in the last 10 years; and
5        A fee is involved for the streamlined rehabilitation process, equivalent to $200 Canadian. There is no fee for deemed rehabilitation.

4.  Approval of Rehabilitation of a San Diego California DUI criminal conviction.

If more than 5 years have passed since the San Diego California DUI criminal conviction, since all sentences related to the conviction were completed but the person is not eligible for rehabilitation at a port of entry because of the nature or number of San Diego California DUI criminal convictions, a person may apply for approval of rehabilitation through a Canadian Consulate in the United States. The same documents required for port of entry rehabilitation identified above are also required for rehabilitation through a Canadian Consulate, plus a completed Application for Criminal Rehabilitation (Citizenship & Immigration Canada Form IMM 1444.  Five Canadian Consulates in the U.S. process criminal applications - Buffalo, NW, New York, NY, Detroit, MI, Los Angeles, CA, and Seattle, WA.  Again, the decision to approve rehabilitation is discretionary, so there is no certainty in obtaining admission to Canada.  In the situation where a person is ineligible for rehabilitation because of the nature of the San Diego California DUI criminal conviction or number of convictions, employment of competent Canadian immigration counsel may facilitate approval of the application.

5.  Temporary Resident Permit after a San Diego California DUI criminal conviction.

If a person is not eligible for deemed, streamlined, or approved rehabilitation, the only option remaining (short of a pardon or executive action) is to apply for a temporary resident permit.  This is a process where a person requests special permission to enter or remain in Canada. 

Someon applying for a temporary resident permit submits the documents required for deemed or streamlined rehabilitation as well as a completed Application for Criminal Rehabilitation, except that the applicant does not check the box in § A(1) indicating Application for Approval of Rehabilitation, but instead checks the box in § A (2) indicating For Information Only. 

The Customs and Immigration officer will review the Application form, look at the nature of the  San Diego California DUI criminal conviction offense, the number of offenses, when the offenses happened, and the applicant's current situation.  Then the Immigration officer will do the following:

At Canadian visa offices outside of Canada:
·              advise that they do not recommend that you travel to Canada; or,
·              advise that you could apply for special permission (temporary resident’s permit) to enter Canada*.
At Ports of Entry (airport, marine or land)
(Contact your nearest Canadian visa office before traveling into Canada.)
·              advise that you will not be allowed to enter Canada and ask you to return immediately to your country of departure;
·              take enforcement action (arrest, detention and/or removal); or,
·              advise that you could apply for special permission (temporary resident’s permit) to enter Canada.
In Canada
·              ask that you leave Canada voluntarily;
·              take enforcement action (arrest, detention, and/or removal from Canada); or
·              advise that you could apply for special permission (temporary resident’s permit) to remain in Canada.
The safest course of conduct is to make application for, and obtain approval of, a Temporary Resident Permit at a Canadian consulate in the U.S. prior to attempting entry to Canada.  The website indicates that Approval of Rehabilitation and Temporary Resident Permits take a minimum of six (6) months to process in the Seattle office; information indicated the time in Seattle is much closer to one year.  Unless an immigration attorney is used, persons with a San Diego California DUI criminal conviction wanting quicker decisions may want to direct their applications to the Canadian Consulates in Detroit and Buffalo.

Not timely seek a Temporary Resident Permit can result in very bad consequences, including detention & return to the U.S., loss of business, loss of job.  That's why a Canadian lawyer should be used.

Once a Temporary Resident Permit is granted, it must be updated every 6 months to 1 year.  It is not permanent.  There are significant non-refundable processing fees associated with Temporary Resident Permits after a San Diego California DUI criminal conviction. Higher fees correspond to cases involving more serious criminality.

6.  Processing Problems.

Inadequate or incomplete documentation is the biggest problem which is why you want to get a lawyer to do this.  Although court documents may be difficult to obtain, Canada typically requires them for review.  Proof of sentences being completed is critical, which could be anything from a letter received stating that a person’s civil rights have been restored or a letter from a probation or court officer stating that all sentences were completed successfully, to proof of the final payment of a fine showing a zero balance.  If court documents and/or proof of completed sentences have been destroyed by the court, Canada requires a letter from the court which clearly indicates that files are no longer available. Canada also needs to see original FBI certificates and state police certificates issued within the year, and requests all required materials be submitted in one package. While the minimum processing time for these applications is six (6) months, many cases take longer to process.

3.  Immigration Attorneys & Resources.

Good immigration attorneys if you have a San Diego California DUI conviction are Dennis McCrea in Vancouver at (604) 662-8200 x102 or email dennis@mccrealaw.ca, or Marshall Drukarsh in Toronto at (416) 862-7880.

The consolidated statutes and regulations page for Canada is HERE.

 
4.  Deported from Canada?

A visitor to Canada faces possible deportation upon conviction for impaired driving (aka DUI), violating Canada’s .08 % per se limit, or refusing a breath sample.  A person in Canada as a visitor who is convicted of a drinking and driving offense may not be able to renew his or her visitor status, and upon conviction, such a person becomes inadmissible to Canada and can be deported.  To overcome this inadmissibility, a pardon is required.

5.  Bottom Line if a San Diego California DUI criminal conviction.

The smart thing to do is engage an Immigration attorney. 

Generally, if San Diego California DUI criminal convictions are over 10 years old, entry is permitted after a criminal background check.

If San Diego California DUI criminal convictions are between 5 and 10 years old, entry is permitted on payment of a $200 fine/fee and a criminal background check.

If San Diego California DUI criminal convictions are less than 5 years old, one must get a lawyer.  Otherwise, the person is going to have to jump through a bunch of hoops, and even then, probably won’t get in unless there are exceptional circumstances.

          If there is any possibility a person will one day have to enter Canada, he or she would be prudent to secure certified true copies of all court records relating to the San Diego California DUI criminal conviction and sentence, including proof of fine payment, and a transcript of the evidence underlying the conviction.  Some attorneys keep records but rarely do they have certified records so one may have to make a trip to the courthouse or write a letter to the court requesting certified copies with the case number, a check not to exceed $50.00 and a self-addressed, stamped envelope to expedite.