Complexity of Case

J Haygoodposted 7 months ago

My mother-in-law, a Canadian citizen, was refused entry to the US back in July for COVID (my wife was pregnant, we live in the US, I'm a US citizen). They also discovered her criminal record and told her that she needs a waiver for future entries

She already got her RCMP packet and the court records for the "major" court case

Her record is:

1992 Criminal Mischief, Suspended Sentence with 2 years of probation according to the RCMP check
2009 1 x Fraud under $5,000, 2 x Theft From Mail. She essentially worked at the post office, stole gift cards, and used said gift cards. Conditional Discharge, Restitution paid, Probation for 1 year

She would like to get a waiver to visit us in the US. What's the chances of this happening? She volunteers for a non-profit, has stable employment and living history, and has 2 US citizen grandchildren and a US LPR adult child

Replies (recent first):

@ John R

Thank you for clarifying.

@ Michelle

I was a little confused by your post as I'm not to sure if you mixed me up with OP. We are not the same.

Allow me to explain my unique situation. Long time lurker, first time poster. I also received a conditional discharge, a few years back, for mischief under and an additional charge that was plead down to be finally withdrawn. Charges were tried summarily. I never had any negative police interraction prior, spare the odd traffic ticket here and there. But in one night my world turned upside down. I had come across a despicable individual who sought to shatter my carreer. I don't really want to dwell on these seemingless things, but I felt I was framed and had very little recourse.

Luckily enough, I wasn't thrown in a prison cell and let go the same night on a simple notice to appear. I hired a lawyer and paid a hefty fine so I can finally accept some guilty plea with some boggus probationary requirements. The same individual wouldn't stop there and continued on their quest to undermine my reputation further. They are now behind bars for their shameful conduct.

Needless to say with my future shattered, I fell into depression. I was offered a great opportunity to travel South. But, Covid was a blessing. Although, I managed to enter succesfully once without questionning, I now fear they may have access to my information. It was all so sudden and the 3 years were not up for record purging. I have read extensively on the topic and how people can easily fall prey unwillingly to an archaic system.

I guess, I should start the process through E-Safe and hope for a September Letter, judging that my case was relatively minor. I have not asked for an official RCMP transcript and during the hiring process, the record may have been overlooked. Obviouly, I wish not to reveal anything to my employer.

I will continue reading the forum, so I can find others with similar stories. Most on here, have extensive records but in my case, I feel I shouldn't be subjegated to restrictive laws. As long as Covid ensues, I can boycott the place altogether, but for how long?

Jake Q replied 7 months ago   #7

@JakeQ

Waivers every 5 years serve a specific purpose for the US.

1. You might have a new administration so you might have a different set of rules
2. The person is thoroughly checked for further criminal activity
3. The person has to still prove they are living in Canada for example, the rules are different if you live in another country.
4. They can assure the population they are checking out people before letting them in, but still allow for people with a checkered past to enter.

Cost; Homeland Security charges exactly the amount it costs to process every application they do. They are not allowed to run a profit or loss.

Canada has a similar system, we do TRP's or Rehabilitations.

Again, the Conditional discharge issue is very black and white. There are no ghost entries.

Example. I plead guilty today and get a discharge. On December 30 2024 I can have it removed. But only if I actually do fingerprints. This shows the RCMP the record, they will see 3 years has passed and remove it and mail back a search result which is blank.
If I do not remove it and Homeland Security, or just the police do a search, they will see it, forever.

Gun restrictions will show up even if they are done, after a pardon. So pardoned clients can still get caught that way.

J Rogers replied 7 months ago   #6

@ J Rogers

Is it possible that a ghost entry remains after such records are removed?

Is it possible that they tell you the record is removed but in reality it's not, after the fingerprint check is done?

You hear lots of stories about both countries sharing lots of information about each and every one of us. Hard to believe anything anymore.

Others claim that the records never get removed and "sealed" comes up each time after a pardon id granted or a discharge is purged.

I just wish all countries would just re-inforce visas for every entry and those with past convictions can pay an extra fee, after a certain period has elapsed. Would avoid many hassles for every one. I mean countries are moving towards electronic visas anyways. The thing with waivers is that re-applying every 5 years is not really cost effective for either parties nvolved.

Jake Q replied 7 months ago   #5

@J Haywood, I have not been on here much lately; Welcome, could you provide a bit of your background? Are you a lawyer? or with a private Company such as John and I? You stated: "We are highlighting another example here of people still being punished......" You also state "how records don't get expunged properly"...This is an area I am also very interested in and have quite a bit of experience in, so would love to discuss more with you...

Michelle replied 7 months ago   #4

@haywood

If done properly, she should be a good candidate for a 5 year waiver right away. It should be filed through eSAFE.

Conditional Discharges;
They are eligible to be automatically be moved after 3 years.. But if you don't do fingerprints after the three years, the record just sits there. For those of you who think they should be "hunting them down" and purging them, why would they waste tax dollars to do this? The person pays for a set of Fingerprints 3 years later and ....the record is removed. Lawyers need to be better informed about what the clients do to remove the record. And a conditional discharge IS A RECORD. You must plead GUILTY to get it. You just don't need a pardon to remove it.

J Rogers replied 7 months ago   #3

@J Haywood, as Jake stated, the Conditional Discharge should have been removed from the RCMP record 3 years from sentence date; I am assuming 2012 or 2013. So that should not have been the problem. Your description of the Mischief has me thinking something is off..

  1. 1: A mischief is not listed as criminal Mischief according to the Criminal Records Act.. Also, the sentence is too harsh for a normal mischief conviction. A suspended sentence with probation of 2 years requires something more serious. Mischief is usually for minor things. Stealing gas, joy riding, keying a vehicle, ect., and does not usually result in a denial to the USA. Now, there is always an exception to the rule, but I would have to see the actual RCMP report or the court document. (It is possible there was a charge for a more serious offense and was plead down to a mischief?)...
2: Fraud, plus 2 x thefts, to receive a Conditional Discharge??? Again, not unheard of...but unusual in my opinion. For the most part, I agree with Jake, his advise is solid, this should be a fairly standard waiver case, applied through e-safe. If you were my client, I would advise that most likely 1st waiver will be a 1 year, then eventually a 5 year, but I advise this with all my clients.

Michelle replied 7 months ago   #2

@J Haywood

I would like to understand the unique circumstances of how she got refused entry. A conditional discharge should automatically expire, 3 years after the day of sentencing. The situation may be different if it was before July 24th 1992. The informartion should be removed otherwise and I'm curious as to why it still shows.

Mischief doesn't seem to be an issue for CBP agents. At least, it wasn't before. But again, there was plenty of time to get a pardon easily.

Now, I would like to understand if ghosts entries still exist once these records are removed. Nobody seems to have a clue and the experts don't necessarily agree. This is not such a complicated case after all. People get refused entry for this kind of stuff all the time.

We are highlighting another example here of people still being punished years after the events occurred and how records don't get expunged properly. I know of many who received discharges but won't travel south of the border because they don't know what predicament they face. I am just curious about what these CBP agents have access to. Lawyers like to negotiate these to avoid criminal records for their clients, but the US doesn't seem to care. Others have entered the country with them and never faced a problem.

A finding of guilt is registered with discharges which equates into a criminal conviction for US purposes. For Canada, they are a tactic used by several lawyers to win cases. Often, the probation period is just a smokescreen, with requirements such as keeping the peace, so the prosecutor gets his way. We live in a society of labels and for such a light record, I don't see why CBP agents would be so hard on her.

Again, the current US administration may have given a directive to bar anyone that has some sort of arrest or police involvement on the RCMP database.

A 5 year waiver should easily be granted for such light charges considering the time that passed. All she has to do is start the application through E-Safe. She needs copies of her fingerprints, copies of the court records, pay the 595$ US fee, the RCMP record check, a letter showing remorse and a few references indicating she's employed, etc. Its faster if done online. Obviously, it requires a lot of effort and ressources to assemble all the paperwork. It's silly but there's simply no other way. Just curious to know if she travelled before? The records may have been obtained previously by CBP.

Things are getting tougher.

Jake Q replied 7 months ago   #1

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