Trespass + Simple Possession charge - is waiver needed?

Donaldposted 2 months ago

I got myself into some trouble in the US when I was 17 and I got charged with trespass and simple possession of Marijuana, the thing was resolved with a plea bargain in which I was given probation for the trespass, my lawyer somehow managed to convince the prosecutor to fully drop the charge for marijuana possession without any guilty plea, probation or fines. Do I need a waiver? The trespassing charge is a conviction, but it is not a conviction for a CMIT or anything of that nature.

All charges were in the US.

Replies (recent first):

@Samuel8911 So remember, the officer at the border is NOT always right. In the olden days when people went to the border to pay and hand in their documents, they would sometimes be told this. Then, they would book a trip to the US. Then get stopped. And guess what? "Oh who told you that?" "Oh I think his name is Steve. He has brown hair". BAM. You lose the $5000 you paid to Hawaii. (true story)

If he tells you you don't need a waiver, then ask him to write you a LETTER. Or give you SOMETHING. They will SUDDENLY change their tune.

Even now after people have PAID the US fee, they tell them this all the time. Why?

1. A guy in a uniform likes to pretend he is a big hero
2. He then doesn't have to do the work
3. He just doesn't care. He will never see you again.
4. He is WRONG. And this is stupid. I send clients to the border all the time. I see examples where they are asking for money again, or they don;t know how to use eSAFE, or are just inept. Worse, they could care LESS about giving you aren't even AMERICAN.

In my experience, as soon as an Officer is friendly, Canadians can't handle it. The same person who would argue a parking ticket to the DEATH with a Canadian officer will do ANYTHING an American wants just because they didn't yell at them. I have had clients PAY TWICE because the officer was nice. I have had people LOSE their money because the officer was nice to them.

I have a profit motive, so understand that, but I have to FACE my clients, and I am proud of the fact I am Canadians and I want to help Canadians. Americans being nice to you isn't a reason to TRUST them ever.

J Rogers replied 2 weeks ago   #19

@Donald, I went to submit my waiver yesterday. Before submitting the waiver, the officer made sure that I truly required one. I ended up needing one because I paid a fine, which is an admission of guilt. Even though I was already banned, the officer really made sure that I was indeed inadmissible (I didn't ask to reconsider). Based on my experience, I don't believe that your situation will require a waiver. I think that if you proactively admit to a "wrongful arrest," they may ask for more documentation. My suggestion is to carry the police arrest report and court docket. That would avoid being told to return with the documents. I have been crossing dozens of times before my arrest turned up. You should do some research to see whether a wrongful arrest is considered an arrest and whether you could answer no if that question is ever asked.

Samuel8911 replied 2 weeks ago   #18

@Samuel8911 the FBI prints are expunged and the arrest record is expunged down to the state level. I can’t get the local arrest record fully removed.

Donald replied 2 weeks ago   #17

@Donald make sure they have also been removed from the local/county/state system too just in case. If it ever comes up just deny that you did anything. They can't ban you for something you didn't do. I wouldn't mention that you know someone that knew the prosecutor. As a Canadian visitor it feels like a red flag about your ties to the US

Samuel8911 replied 3 weeks ago   #16

To the point on going to the border - explaining that you are not crossing but asking to talk to someone to see if you are admissible - despite explaining that you are not crossing, they will deny you entry and put it on your file.

Speaking from experience here.

PendingTrip replied 3 weeks ago   #15

@Samuel8911 Dang wtf? They aren't supposed to find anyone inadmissible based off of a dismissed charge because a dismissed charge has a huge chance of being a wrongful arrest. Luckily my lawyer managed to get the FBI fingerprints removed and expunged, but I'm kind of nervous now.

Donald replied 3 weeks ago   #14

@Donald, I completed a diversion class. The court docket doesn't mention it, and it says dismissed/nolle prosse. I didn't have any intention of visiting the US because the hassle wasn't worth it. I did the waiver because of the fee increase and the hope that the adjudicator will give me five years based on the nature of the incident and the length of time (14 years). If I get one year, I'm definitely not paying 1500 CAD. The only annoyance for me is connecting flights. I know the US doesn't care, but I'll just continue spending my holiday money elsewhere.

Samuel8911 replied 1 month ago   #13

@Samuel8911 was there anything like fines, probation, even a diversionary class or a guilty plea or admission of guilt? I got off basically without any of the major prongs of conviction because of my lawyer and also because of the fact that the police officer was nice and noted that the weed wasn't actually mine but rather handed to me literally because my so called "friend" at the time was in front and noticed the cops were there and didn't tell me before it was too late. I'm kind of confused about what to say because technically I didn't commit any crime but also conduct based inadmissibility is extremely broad and has no statute of limitations.

Donald replied 1 month ago   #12

@Donald, if I check my arrest report in Miami-Dade, it says "arrest-arraignment-nolle prosequi" (refused to prosecute). Being arrested, processed, and released without charge still creates a record. When the officers asked me about the event, I said that I was arrested for cannabis possession while on vacation but that the charges were dismissed (they could see it in their system). I was not asked if I did it or not. I feel like the officer was more inclined to trust the judgment call of the local police officer who made the arrest. There are many posts here about people dealing with the lifelong consequences of an arbitrary or overzealous arrest. Ultimately, they judge your moral character. I was sent to secondary for the first time ever because I was crossing with my Cuban husband. I feel your frustration!

Samuel8911 replied 1 month ago   #11

@Sam 84 So the officers asked you about the conduct relating to the charge even though it was fully dismissed? Are you sure that the dismissal wasn't based on rehabilitative grounds or pled down? My case was just fully dismissed due to pure luck (lawyer was friend of prosecutor who was extremely overworked, the weed wasn't actually mine either, but my "friend" had surreptitiously given it to me when he saw the police car outside). I'm not really sure how I should go about answering conduct based questions, as an admission would make someone inadmissible even without a conviction.

Donald replied 1 month ago   #10

@Donald, indeed, the charge was dismissed because the court declined to prosecute. An arrest record may still be accessible if specifically searched for. Regarding the primary screening, I believe they inquire whether you have ever been arrested, regardless of conviction. Based on your response, you will have a single opportunity to provide a compelling explanation for your mugshot and arrest record. The officers are trained to elicit statements that may render you ineligible. This is how I became entangled in Waiverland

Sam 84 replied 1 month ago   #9

@Sam 84 Did your possession charge get fully dismissed? Mine got dismissed because my lawyer was good friends with the prosecutor and the prosecutor basically decided to do him a favor and also because my case was tried in a super over-worked court with actual severe crimes so a simple possession charge was not worth prosecuting. I'm not sure what I should do in the case of a border guard asking me if I committed the said act?

Donald replied 1 month ago   #8

The same happed to me while in miami in 2012. I was convinced to take a plea bargin. The charges were dismissed. Last year I was selected for a random check (the agent was training a new guy and he wanted to show him how to use their database!) my arrest showed up and I got a lifetime ban for moral turpitude. My point is that they will likely never check but all it takes is one secondary screening

Sam 84 replied 2 months ago   #7

@J Rogers I can't go because I am currently in the US, I am currently on TN status but I know a lot of the time CBP officers don't search or sometimes the record doesn't get shown for whatever reason, but I'm not risking going back to the border just to check this. To be completely honest because the charge was fully dismissed and the paperwork even said "acquittal" and because I even went and got a TN before I just assumed this wasn't an issue. I don't know what happened though.

Donald replied 2 months ago   #6

@Donald I just realized you mentioned you ARE in the US. Ok, so going to a border is not as easy. If you are there without official authorization be careful

J Rogers replied 2 months ago   #5

not to wish to prosecute
Nolle prosequi (abbreviated nol. pros.) is a Latin phrase, which directly translates to “not to wish to prosecute.” Nolle prosequi is a legal notice or entry of record that the prosecutor or plaintiff has decided to abandon the prosecution or lawsuit.

The waiver forms specifically ask if you were ever ARRESTED. So they want to KNOW if you were arrested, but as I said, go to the border, ask them to look you up, and ask them. If you book a trip for $5000 and lose the money, are you going to get the lawyer who gave you a free consultation to give you your money back? I don't think you need a waiver, but if an officer turns you around, your trip is ruined, whether he is right or not.

Isn't that what you are trying to prevent? And this is a "free consultation" as well, and this is ALL I do all day EVERY day since 1992. I am a Canadian, trying to help a Canadian, for free. Go to the border and ASK. They will tell you. They have NO interest in making you do a waiver if you do not need one.

J Rogers replied 2 months ago   #4

@J Rogers I am currently in the US, I've talked to an immigration lawyer for a free consultation, and they said that a Nolle Prosequi disposition is not considered a conviction, she also told me that legally speaking I can deny that I ever did the crime since the charges were dropped, I don't see how that makes sense but she assured me that if they ask, I should say that I was not found guilty and never plead guilty and therefore did not do anything.

Donald replied 2 months ago   #3

I suggest you don't mention anything about the marijuana since you weren't charged.
they do not like to hear that.

luna replied 2 months ago   #2

Its actually hard to say. I would go to a border, explain you are NOT crossing, and ask someone to talk to you to see if you are admissible. If they tell you that you need a waiver, then apply. If they tell you that you do not, then get a name or card or something.

J Rogers replied 2 months ago   #1

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