Canada Exclusion

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 or California DUI is a felony in Canada and therefore an excludable offense under the Immigration Act.

A San Diego or California DUI is an indictable offense in Canada that may be punished by imprisonment for up to 5 years.  A person with a conviction in the U.S. which is treated as a felony or indictable offense in Canada is excludable from Canada. However, even if the subject offense is not a felony or indictable offense in Canada, Customs and Immigration Officers possess absolute power to deny or permit any entry to Canada.

Unfortunately, most criminal convictions (including but not limited to DUI, misdemeanor possession of drugs, all felonies, theft, domestic violence, a number of assaults, reckless driving, negligent driving) may prevent entry into Canada. The issue of admissibility does not matter when the conviction occurred.

Persons with San Diego or California DUI criminal conviction, prior to attempting to get into Canada, should immediately retain an immigration lawyer and obtain the proper documents. Risk if you do not: reject entry. Remember, the entry officer decides at any port of entry to decide whether you come in or not.

Canadian law [Exlusion]

Canadian Immigration Act, § 19:

(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;

§ 3 of the Immigration Act later contains a provision permitting 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.

In our post-“9/11” era, the consulate reminds people that Canadian immigration officers have generally exercised discretion to reject entry rather than allow entry.

Luckily, a Canadian lawyer can assist with the permit process involving prior application whichto maybe permit an otherwise “excludable” individual to come into Canada.  Start by hiring a Canadian attorney.

The Canadian consulate general’s website provides info.  Short visits can be permitted up to thirty days.  Upon being approved, the permit may be re-approved when application is renewed within three years.

2. How to successfully avoid Canadian Exclusion if you have a San Diego or California DUI Conviction

Ways to avoid inadmissibility are:

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 or California DUI Conviction.

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

1        If only 1 DUI conviction;
2        10 or more years passed and everything was completed (fine payment, programs completed);
3        The DUI conviction would not be considered serious criminality in Canada (most felony convictions in the  United States are equivalent to serious criminality in Canada) as most DUI convictions are misdemeanors; and
4        No serious property damage or physical harm to any person, or any type of weapon was involved.

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

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

1        2 or less DUI convictions;
2        5 years passed because usually all of the sentences for the conviction(s) were completed (payment of fines, jail served, programs done, restitution made);
3        DUI conviction(s) would not be considered serious criminality in Canada (most felony convictions in the United States are equivalent to serious criminality in Canada); and
4        DUI conviction(s) didn’t have serious property damage,physical harm to any one, or weapon.

3.  Deemed & Streamlined Rehabilitation Applications.

Deemed rehabilitation and streamlined rehabilitation applications are handled at Canadian ports of entry.

An application for rehabilitation does not mean it’s granted.  An immigration attorneys is always recommended.

To apply, bring these documents to a port of entry during regular business hours (Monday through Friday, 8:00 AM & 5:00 PM):
1        A United States passport or birth certificate (with photo identification);
2        Final court judgment paper showing any DUI conviction, and proof entire sentences and required items were successfully finished (copy ok);
3        FBI identification record (recent);
4        Police certificates from the state where DUI conviction(s) happened, and from any state where you lived for 6 months or longer in previous ten years; and
5        A fee is involved for the streamlined rehabilitation process, equivalent to apx $200 Canadian dollars.

Interestingly, there is no fee for “deemed rehabilitation.”

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

If 5 years or more elapsed following a San Diego or California DUI criminal conviction, because all terms and conditions were completed but if you are not eligible for rehabilitation at a port of entry due to the number or nature of San Diego and/or California DUI criminal convictions, you may apply for approval of rehabilitation through a Canadian Consulate in the United States.

The same documents needed 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 you are not eligible for rehabilitation because of the number or nature of the San Diego California DUI criminal conviction(s), employment of a Canadian immigration lawyer will help with timely approval of the application.

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

If you are ineligible 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 [TRP].

A TRP is a regularly used process where you request special permission to enter or remain in Canada.

If you apply for a temporary resident permit, you submit the same documents required for deemed or streamlined rehabilitation as well as a completed Application for Criminal Rehabilitation, except you do not check the box in § A(1) indicating Application for Approval of Rehabilitation. You check the box in § A (2) indicating For Information Only.

A Canadian Customs and Immigration officer reviews an Application form, looks at the nature of the San Diego or California DUI criminal conviction, the number of offenses, when the offenses happened, and your current situation.  Then the Immigration officer will do the following:

At Canadian visa offices outside of Canada:
·              advise they do not recommend that you travel to Canada;or,
·              advise 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 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 you could apply for special permission (temporary resident’s permit) to enter Canada.
In Canada
·              ask you leave Canada voluntarily;
·              take enforcement action (arrest, detention, and/or removal from Canada); or
·              advise you could apply for special permission (temporary resident’s permit) to remain in Canada.

Historically, the best option is to apply 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 suggests Approval of Rehabilitation and Temporary Resident Permits take a minimum of 6 months to process in the Seattle office; information indicated the time in Seattle is much closer to one year.

Unless an immigration lawyer 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.

Failure to apply for Temporary Resident Permit can result in extremely adverse consequences, including detention & return to the U.S., loss of business, even loss of employment. This is precisely why a Canadian attorney must be retained.

If a Temporary Resident Permit is granted, it must be updated every 6 months to 1 year to remain effective. Expensive non-refundable processing fees are associated with Temporary Resident Permits in connection with a San Diego or California DUI criminal conviction. Higher fees can be expected in DUI cases involving more serious criminality.

6.  Processing Problems.

Incomplete documents is the #1 problem. So retain a Canadian lawyer to do this.

San Diego DUI court documents and proof should be maintained as they are sometimes hard to get later on. Save or get them for Canada entry.  Proof of payment of fine, completion of programs, and jail sentence served, are needed. Sometimes you can get a letter to the Canadian representative indicating your civil rights have been restored. Other times get a letter from a probation or court representative indicating everything was done or the sentence was completed successfully, to showing entire fine was paid, leaving a zero balance.

If DUI conviction papers and/or proof of completed sentence have been destroyed by the court, Canada requires a letter from the court which clearly indicates that files are no longer available.

Canada still requires the original FBI certificates and state police certificates issued within the year, and wants documents submitted in one package. While the minimum processing of an application is 6 months, some DUI cases take more time.

3.  Immigration Attorneys & Resources.

Good immigration lawyers if you have a San Diego or California DUI conviction are
Dennis McCrea in Vancouver at (604) 662-8200 x102 or email dennis@mccrealaw.ca, or Marshall Drukarsh in Toronto at 416-365-5950 or email marshall@drukarshlaw.ca.

Statutes and regulations page for Canada is HERE.
4.  Deported from Canada?

A Canadian visitor may also be deported if convicted for impaired driving (DWI/DUI), violating Canada’s .08 % per se limit, or refusing a breath sample.  A person in Canada as a visitor 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.  A pardon is then required.

5.  If San Diego or California DUI conviction.

You really should retain an Immigration lawyer.

Generally, if San Diego or California DUI criminal convictions are over ten years old, entry is allowed upon a criminal background check.

When the San Diego or California DUI criminal conviction is between 5 and 10 years old, entry is permitted on payment of an apx. $200 fine/fee and a criminal background check.

When the San Diego or California DUI criminal conviction is less than 5 years old, one must get a lawyer.  Without a Canadian lawyer, too many hoops exist to jump through, and even then, you likely will be denied entry unless there are exceptional circumstances.

If you are going to to go to Canada one day, you should plan in advance. Secure certified true copies of all court records for the San Diego or California DUI criminal conviction and sentence, proof of fine payment, and even a transcript of the evidence underlying the conviction.

Some attorneys may keep records but you do should not rely on that as almost never rarely do lawyers have certified records. Make that trip to the courthouse or write a letter to the court now requesting certified copies with the case number, a check not to exceed $20.00 and a self-addressed, stamped envelope to process.

Canada Exclusion April 17, 2015

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