Can I travel to the US if I am facing charges?

Posted by  on May 15, 2015
Can I travel to the US if I am facing charges?

In the years since 9/11, the United States has made it far more difficult to enter the United States. Individuals facing criminal charges have to be particularly aware of this, especially if their employment or family ties require them to be able to cross the border freely.

Homeland Security officials have broad and virtually unfettered discretion to decide who can enter the United States. And when they decide to exclude a traveller from the US, that decision is essentially unreviewable. It is therefore important to know whether you are at risk of exclusion before you travel.

Most criminal convictions will prevent an individual from travelling to the US. This is especially the case where certain crimes are involved: guns, drugs, and crimes involving “moral turpitude”.

What is a crime involving moral turpitude (CIMT)? It is a concept that is sometimes hard to define, yet is applied every day by border officials in deciding whether to permit entry. Some crimes are more obviously CIMT: sex offences, fraud, perjury. Others are harder to identify: is domestic violence a CIMT? Impaired driving causing bodily harm? Assaulting a police officer?

What constitutes a crime that will result in exclusion from the US often involves a judgment call by the border official. The circumstances of the offence are considered, as well as whether the traveller is subject to any ongoing penal consequences, such as probation.

To avoid the risk of being turned away at the border, the best outcome for a defendant facing criminal charges is for the charge to be withdrawn. If a withdrawal is not possible, an absolute discharge will often be satisfactory.

In cases where entry has been, or can be expected to be, denied, one may apply to the United States government for an immigration “waiver” that will permit a traveller to enter the US, despite a criminal record.

For clients who are concerned about whether they will be able to travel to the US, we are pleased to refer you to expert immigration advice, whether it is for an immigration waiver, an opinion letter for court, or legal advice concerning your specific circumstances.

Disclaimer: please note that this blog contains information that may be of interest to the reader. It is not legal advice. For legal advice, you must retain a lawyer.

For further information concerning your particular situation, please contact The Defence Group at 877-295-2830. We are pleased to offer our clients a free consultation, reasonable and flexible fees, and experienced, knowledgeable service.

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Arun S. Maini, lawyer and founder of The Defence Group, has practised criminal law since 1995. He’s a graduate of the University of Toronto and Dalhousie University Law School. After completing his articles at a Bay St. law firm, Mr. Maini joined the federal Department of Justice as a prosecutor of drug trafficking, tax evasion, and immigration fraud cases in Toronto, Brampton and Vancouver. In 1999, Mr. Maini transferred to the provincial Crown attorney’s office in Brampton, where he prosecuted a wide range of criminal offences, from theft to murder. In 2003, Mr. Maini left the government to establish The Defence Group. Mr. Maini handles all criminal offences and regulatory prosecutions.

Over more than 25 years as a criminal lawyer, Mr. Maini has prosecuted and defended hundreds of criminal cases, and has extensive jury trial experience. Mr. Maini has also lectured at The Advocates’ Society and has taught advocacy at the Law Society and Osgoode Hall Law School’s Intensive Trial Advocacy program. Maini appears occasionally in the media to comment on criminal law – see examples from the CBC, the Toronto Star, and the National Post.

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