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I would really appreciate some genuine advice on a situation.
A Canadian has an arrest that is in the American system. It cannot be removed. The arrest was for a non violent controlled substance offence (suspected simple possession). The arrest itself was baseless, and charges we’re not filed.
Crossing the border is an important part of this person’s life. A lot of research has been done, and it seems the following are options:
1) Apply for a Waiver, knowing the person is not actually inadmissible. Hope to receive Sept Letter. Will US customs let someone even file with dropped charges?
2) Don’t apply for a waiver. Bring court documents showing there is no court file or charge. Hope for the best.
The second option seems that crossings would be much more uncertain. For any of the experienced folks here: what are your thoughts? I’m not looking for a sales pitch, just some advice to help an individual who is in a tough place and needs some positive progress.
Here is the link for our show that will start in 90 minutes since we do it at 12 noon in Surrey. John you are invited to partake in the show and we will call you live on air to join in at sime point in the show. We can discuss the gentleman's question in detail.
Senior U.S. ImmigrationLaw Intelligence Analyst
@Alan, Thanks for info... However, if client did not go to court or have lawyer attend court, how are they going to get court documents? Sorry, but I am assuming it is the same in USA as Canada - If a charge is laid and serious enough to be entered into the FBI system, client or lawyer has to attend court to receive a disposition, even if charge is withdrawn, dismissed, not guilty...ect...Based on what you are advising, (If my client, I would need much more information to provide anything more then the following)...I would suggest similar to Ken and John, but with a bit more..as I deal with very picky Customs Officers here in Saskatchewan. The traffic to most of these borders is light and the officers make it their mission to research you...So, if this was client who called me out of the blue, I would tell them, you have 2 options, 1..Go to border and see what happens, you might get through, you might not, consider yourself lucky each time you get to enter. I advise this because Mr. Custom Officer
Michelle - thanks for the questions. The arrest is in the FBI database unfortunately. Obviously, a border worker would have to search for it on NCIC, but it will show up.
J Rogers, thank you very much for your input as well!
[ Alan appended this reply on October 15, 2020 @ 7:55 pm ]
Edit: did not go to court. Charges were not filed.
@Sid so much for "no sales pitches please".
The court documents are PROOF that the "charges were not filed". Unless the person says something completely stupid, what is Homeland Security going to say? "Bring us more documents? Are you sure your not guilty?"
When a client comes into our office with this scenario, we look at the documents. If the documents look to US like the person was not found guilty, then it will look the same for Homeland Security. Cost? ZERO.
The borders being opened or closed are on the news....everywhere. The Liberals have said they will not even CONSIDER opening the border until November 26th. This will be shortly after the US election. Trump is in a hurry to open the border, Trudeau is not. Biden will bend over backwards to please Canada on this issue, I guarantee you, since Biden and Obama LOVE Trudeau.
Go to the border. If he runs into trouble, and needs a waiver, I'll do it for free. Problem solved. No one needs a seminar, training, to join the church of scientology, time shares, or ginsu knives for this simple matter.
Thank you very much for your responses!
KScott, if the individual does not currently need a waiver, what would your services entail? Would it be “coaching” on what to say in the event of questioning? Or would it be preparing a Sept Letter?
I understand the border will not be accepting packets, but ESAFE is still operating (excluding the biometrics portion). In theory, they could still submit online and wait for the biometrics portion to become available. Correct?
I have to partially agree with John to a point. I agree that you should not file for a waiver yet since technically he does not need a waiver now...BUT...This is where it gets tricky. We have a client that was charged with trafficking but it was dismissed by the Vancouver BC Court. CBP saw the charge and knew that a charge by itself does not require a waiver. However, they asked the guy what happened and he started talking about how the coke was in his car but the case got thrown out because of an illegal police search. CBP asked him to elaborate on the "coke being in the car." He did so and a sworn statement was taken where he admitted that there was coke in his car. The gentleman now talked himself into needing a waiver because of the voluntary admission. We get these cases all the time in BC and we can save the person the hassle of not ending a waiver but they have to get to us before they get to the border. Also, September Letter cases have to be prepared a certain kind of way and especially drug cases.
I disagree that if you bring the court documentation you and everything will be fine. I say this because the U.S. immigration code covers scenarios that you have mentioned here since it has been written into the statute. The court documentation is what CBP will use to go on the "fishing trip" and he will likely say the wrong thing. I highly recommend that you call us since we deal with these issues all the time. We won't charge you a penny to discuss the case and we may be able to save him from needing a waiver. We actually teach seminars on this very topic as depicted on our site.
We also have some CBP training material that they use in regard to interrogations on cases where they try to get the person to voluntarily admit guilt. We might be able to screen share it. Do not just sit back and "hope for the best" since that and a dollar will get you a Starbucks coffee. Also, regarding price, you truly get what you pay for in life. I am sure we can get him out of needing a waiver but I have a message for other forum members. How much is your freedom/ability to travel worth to you? How much is it worth to invest in your future by not having to pay out thousands of dollars by filing for future waivers?
Luckily, there is a lot of hope for this gentleman but it will not help everyone. I will say that it is true that they would not likely accept the packet since I called our borders last week and they said no and hell no to accepting packets. One thing that I can do for the gentleman is to host this topic on our next internet talk radio show episode. I think this topic will be of interest to the forum since we can go over it in detail. I think we will host the episode Friday or this Saturday and we will bring up this very thing. Perhaps people can even have their laptops open and we can show them where this very scenario is listed in the US Immigration statute.
Senior U.S. Immigration Law Intelligence Analyst
Option 2 is the cheapest. With official court documents you should be fine. I doubt they will continue to hassle you after that but who cares? Why pay a whole bunch of money for a September letter when you can carry the court documents for free?
I doubt they would even accept your waiver at the border, so don't bother.
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