Canada denies visit if San Diego DUI on record but attorneys work around laws

Visitors to Canada are not generally permitted if they have a first offense San Diego California DUI.  Fortunately,  this “exclusion” law has exceptions.

Even in problem or multiple DUI cases, with the right attorney assistance, it’s not impossible to get into Canada.

It is always easiest if you start with a good Canadian immigration lawyer when you have a San Diego California DUI – related conviction.   It is recommended you begin your attempt to gain entry into Canada by contacting one of these Canadian attorneys:

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 immigration@drukarshlaw.ca .


Overview

The current policy generally appears to stress that entry into Canada under a relaxed policy is a one-time deal, if still available.  The travelling person must generally then seek a Temorary Resident Permit (TRP) from a consulate.  Generally,a non-jail resolution may help as it shows the offense was less serious.

Read on.

1.  Bottom Line if you have a San Diego DUI criminal conviction.

If possible, the first thing your San Diego DUI attorney should do is file a petition to dismiss (expunge) under California Penal Code Section 1203.4.  See this page for details.

The wisest and easiest thing to do next is retain a Canadian Immigration attorney.

If San Diego DUI criminal convictions are over 10 years old, entry is generally permitted after a criminal background check.

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

If San Diego DUI criminal convictions are less than 5 years old, one must get an attorney.  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 DUI criminal conviction and sentence, including proof of fine payment, and a transcript of the evidence underlying the conviction.  Some lawyers 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.

2. San Diego DUI? Turn around, eh? Face Canadian Exclusion.

Canada is off limits for San Diegans or Californians who show a DUI on their criminal record.  How could this be?

One’s San Diego DUI is the equivalent of a “felony” in Canada  and makes a visitor excludable under their Immigration Act.

A San Diego Drunk Driving or 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 DUI, Drunk Driving, 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 DUI criminal conviction, attempt to enter Canada without first retaining an immigration attorney 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.

3. Getting Around San Diego DUI Conviction Exclusion from Canada

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

  1. Deemed rehabilitation at a Canadian port of entry;
  2. Streamlined rehabilitation at a Canadian port of entry;
  3. Approval of rehabilitation through a Canadian Consulate in the United States; and
  4. A Temporary Resident Permit through a Canadian Consulate in the United States.

I.  Deemed Rehabilitation of a San Diego 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 elapsedsince 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.

II.  Streamlined Rehabilitation of a San Diego 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 propertydamage, physical harm to any person, or any type of weapon.

4.  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.

5.  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 DUI criminal conviction or number of convictions, employment of competent Canadian immigration lawyer may facilitate approval of the application.

6.  Temporary Resident Permit after a San Diego 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.

Someone 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 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.

7.  Processing Problems.

Incomplete or insufficient documentation is the biggest problem which is why you want to get an attorney 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.

8.  Immigration Lawyers & Resources.


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

9.  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, lawyers are told that a pardon is needed.

A 2012 POLICY CHANGE HELPED FIRST TIME CALIFORNIA DUI OFFENDERS TO GET INTO CANADA, AND FOR FREE.

Operations Bulletin 389 was the 2012 authorization for relaxed entry.  It lapsed and was not renewed in February, 2013.

However, the “relaxed” Canadian immigration policy is no longer in force.  The following is no longer in force at this time.  The following information is posted here in the event that Canada renews it.

Operational Bulletin 389 – February 27, 2012
Cost Recovery Fee Exemption for Temporary Resident Permits Issued to Foreign Nationals who are Inadmissible on Criminality Grounds

The Operational Bulletin 389 issued 27 February, 2012 is really very limited in its effect. All it does is authorize a CBSA officer to waive the $200 processing fee for the issuance of a temporary resident permit.

The criteria for issuing the permit and the documents that must be provided in support have not changed. The criteria are set out in OP 20. Important passages are marked in bold.

Overseas Processing Manual 20

5.7. Factors to consider when issuing or extending a permit

Officers should issue permits with caution and only in special circumstances.

5.8. Assessment of need and risk

An inadmissible person’s need to enter or remain in Canada must be compelling and sufficient enough to overcome the health or safety risks to Canadian society. The degree of need is relative to the type of case. Even if the inadmissibility or violation is relatively minor, a permit may be unwarranted in the absence of compelling need. For example, the temporary resident visa program would lack integrity if temporary residents without visas obtained temporary resident permits at ports of entry.

The following includes points and examples, which are not exhaustive, but illustrate the scope
and spirit in which discretion to issue a permit is to be applied.

Officers may issue a permit if:

• the need to enter or remain in Canada is compelling and sufficient to overcome the risk;
• the risk to Canadians or Canadian society is minimal and the need for the presence in
Canada outweighs the risk. See sections 8, 9, 10, and 11 below for criteria to consider when making a decision about recommending a permit. Restoration of status is not an option.

6.4. Temporary resident permit (TRP) [A24(1)]

A temporary resident permit (TRP) is a discretionary document that may be issued to
inadmissible persons or persons reported or who may be reported for violation of the Immigration
and Refugee Protection Act allowing them to enter or remain in Canada, where justified by
exceptional circumstances.

10. Procedure: Criminal inadmissibility

Powers to exclude or remove criminals were established by Parliament to protect Canadians.
Decisions to allow criminally inadmissible persons to enter Canada should not be made lightly.

Criminal inadmissibility does not apply to persons who:

• have been pardoned;
• have been granted rehabilitation by the Minister;
• are deemed to have been rehabilitated.

In reviewing criminal cases, officers should check the time elapsed since the sentence was
served to determine whether the client is eligible for rehabilitation, if appropriate, or be deemed
rehabilitated.

Acceptable risk means further criminal activity is unlikely. The onus is on the client to demonstrate this.

Officers should consider the following when making a risk assessment:

• the seriousness of the offence;
• the chances of successful settlement without committing further offences;
• behavioural factors involved (drugs, alcohol);
• evidence that the person has reformed or rehabilitated;
• pattern of criminal behaviour (e.g. was the offence a single event and out of character?);
• completion of all sentences, fines paid or restitution made;
• outstanding criminal charges;
• restriction of travel following probation or parole;
• eligibility for rehabilitation or a pardon;
• time elapsed since the offence occurred;
• controversy or risk caused by presence of the person in Canada;
• eligibility for provincial health insurance coverage in permanent resident cases; if ineligible,
they should prove they have sufficient assets or private insurance to cover possible medical
costs;
• any risk a foreign national will require public assistance.

Officers must weigh the possible merits of each case in relation to the gravity of the inadmissibility or violation. If it becomes necessary to obtain information or confirmation from third parties, documentary evidence should be kept on file. If officers use third party information to arrive at a decision, the applicant must be informed and allowed to respond to it.

Note: The main general requirement for obtaining a Temporary Resident Permit (TRP) is to demonstrate a significant reason to be in Canada. Usually, the Government is looking for a reason related to a person’s work, or family, or an emergency situation. A TRP is required until such time as criminal inadmissibility has been removed.

Summary

A public policy was recently approved with respect to the entry of foreign nationals (FNs) who are inadmissible on A36(2) criminality grounds. Specifically, the policy allows the grant of a one-time fee exemption for a Temporary Resident Permit (TRP) for certain offences, including offences such as driving while impaired (also known as driving under the influence (DUI)).

Issue

The purpose of this Operational Bulletin (OB) is to provide operational guidance on issuing a one-time fee-exempt TRP to a foreign national who is inadmissible on A36(2) criminality grounds and who meets the conditions set out in the public policy (see Instructions).

Background

Where an officer is of the opinion that it would be justified in the circumstances for an inadmissible FN to become a temporary resident, a TRP may be issued to enable the FN to enter and/or remain in Canada under section 24(1) of the Immigration and Refugee Protection Act (IRPA). Section 25.2 of the IRPA authorizes the Minister or delegated officers to grant an exemption from the payment of applicable fees where the Minister is of the opinion that public policy considerations warrant it.

On January 13, 2012 the Minister of Citizenship, Immigration and Multiculturalism issued the public policy considerations that in his opinion justify the granting of a one-time exemption from the TRP processing fee that is required under section 298 of the Immigration and Refugee Protection Regulations (IRPR) for FNs who meet the conditions of this public policy.

These instructions are to be considered an interim measure to facilitate the entry of these FNs until a more permanent measure is established. Additional instructions will be offered once a permanent measure comes into force or this public policy is revoked by the Minister.

Instructions

As of March 1, 2012 the public policy exemption would apply to an FN to whom a TRP is being issued at a port of entry (POE) or a visa office abroad, who is inadmissible solely on the grounds of “criminality” under section 36(2) of IRPA, and who:

(A) was convicted of an offence and received no term of imprisonment as part of the sentence imposed; and

(B) has had no other convictions or committed any other acts that would render the person inadmissible.

To facilitate these circumstances and overcome the inadmissibility, a delegated authority should consider issuing a TRP. If choosing to issue a TRP, the delegated authority can now exempt the fees associated with the issuance of this document. The delegated authority should counsel the foreign national that the next time they seek to enter Canada, the fee exemption will not apply and that they should look into potential mechanisms to overcome their inadmissibility.

This authority has been delegated to CIC immigration authorities at visa offices abroad and to Canada Border Services Agency’s (CBSA) Border Service Officers, Inland Enforcement Officers and Regional Program Officers in their immigration functions for POE examinations only.

When issuing a TRP in these circumstances, the cost recovery code M31 on the TRP screen in the Field Operations Support System is to be used. This code will automatically generate the following information on the TRP:

ONE-TIME FEE EXEMPTION/CIC.GC.CA

This public policy does not apply to FNs who are already in Canada.
Further information

Overcoming criminal inadmissibility

Questions

For further information or questions regarding the changes outlined in this OB, please contact Operational Management and Coordination at OMC-GOC-Immigration@cic.gc.ca.