DUI? You’re Not Getting into Canada, Eh?

As a United States immigration attorney, I am routinely required to apply various grounds of inadmissibility, deportability and bars to naturalization to fact patterns presented by those hoping to enter, or stay in, the United States.

US immigration laws impose different eligibility standards on aliens depending on where they are, what benefit they are seeking, and their personal circumstances. Some bars to entry are waivable while others are not.

A related question, although admittedly rarely encountered in my practice, is how US citizens fare when attempting to visit or move to a foreign country. Do those same crimes, medical conditions, and immigration violations that plague aliens in America similarly affect US citizens abroad?

Any analysis of foreign immigration laws should probably begin with one of our closest neighbors. What would happen if you suddenly found yourself in Buffalo and wanted to do a little sightseeing up north? Advances in technology now make it possible for countries to exchange information about citizens, such as criminal history, with the click of a button. People with criminal history who, in the past, could travel freely to other countries may want to think twice before heading to the border.

Immigration regulations for Canada are found in the Immigration and Refugee Protection Act (IRPA) and make foreign nationals inadmissible on security grounds, human rights violations, criminal grounds, health-related grounds, financial grounds, misrepresentation, violation of Canadian immigration laws, and inadmissibility of family members.

Let’s face it, there are a few heinous crimes that would probably make someone inadmissible in most developed nations (murder comes immediately to mind). However, it may surprise you that Canada is actually stricter than the United States when it comes to who can pass through its border. Examples of offenses that may make one inadmissible to Canada include shoplifting, theft, assault, dangerous driving, illegal possession of a firearm, posession of illegal substances, assault with a deadly weapon, manslaughter, and driving under the influence.

Section 36(1) of the IRPA bars admission for serious crimes such as:

-convicted in Canada of an offense punishable by maximum imprisonment of 10 years or more or where an actual sentence of more than six months was imposed;

-convicted of a crime outside Canada that would be punishable by a maximum term of at least 10 years if committed in Canada

-committing an act outside Canada that is an offense where committed and, if it had been committed in Canada, would be punishable by a maximum term of at least 10 years.

Section 36(2) deems foreign nationals to be inadmissible after:

-having been convicted in Canada of an offense punishable by way of indictment or of two offenses not arising from a single occurrence;

-a foreign conviction that would constitute an indictable offense in Canada or two offenses not arising out of single occurrence that would be an offense;

-committing an act outside Canada that would constitute an indictable offense in Canada;

-committing, on entering Canada, an offense under the criminal code, the IRPA, the Firearms Act, the Customs Act and the Controlled Drugs and Substances Act.

Under Section 38(1) of the IRPA, a foreign national is inadmissible on health grounds if they are likely to be a danger to public health, public safety or cause excessive demand on health or social services. Medical examinations can be required, even for some temporary residence visas.

Unlike in the United States, Canadian immigration law treats families as one entity, denying admission based on the fact that a family member who has made a permanent resident application is inadmissible under one of the proscribed grounds.

In Canada, driving while under the influence is considered a felony for immigration purposes and makes the alien inadmissible. This is a huge departure from US immigration law where simple DUI convictions, without more, generally do not make a foreign national inadmissible or deportable. In determining inadmissibility for a DUI conviction that occurred in Canada, the punishment outlined in the Canadian Criminal Code is controlling. For foreign DUI convictions, it must equate to one of the categories in section 36(2).

Pursuant to the Canadian Criminal Code (section 253(1)), operating a motor vehicle or having the care or control of a motor vehicle, whether in motion or not, while impaired by alcohol or drugs or after consuming enough alcohol such that the blood alcohol content is .08 or above is classified as an impaired driving offense. Driving while impaired is an indictable offense or one that is punishable conviction and is liable for a minimum fine of $1,000 for a first offense, a minimum of 30 days imprisonment for a second offense and 120 days more for each subsequent offense. If prosecuted as an indictment (felony), the driver can be sentenced to up to five years; if prosecuted as a misdemeanor, the sentence can be up to 18 months.

Canada’s driving under the influence (DUI) law is a divisible offense, meaning it can be prosecuted either as a felony (indictment) or misdemeanor (summary conviction). Strictly speaking, only a felony makes a foreign national inadmissible to Canada. However, when there is a divisible offense, such as the DUI law, it is treated as a felony for immigration purposes. Thus, most US driving under the influence convictions would render the offender inadmissible to Canada without a pardon.

Consider, if you will, the list of US citizens who are likely barred from entering Canada due to driving under the influence convictions. Those unwelcome up north include Paris Hilton, President George W. Bush and his Vice President Dick Cheney, Ray Liotta, and Mel Gibson. The little matter of being completely inadmissible to a country that borders ours proved problematic when George Bush needed to enter Canada to carry on the business of our nation.

To get a pardon (the equivalent of the US immigration waiver) for a foreign conviction, the foreign national can apply for a “approval of rehabilitation”, or permanent waiver, at least five years after the end of the imposed sentence. This differs from US law in that some criminal convictions are waivable immediately upon the showing of extreme hardship. The Approval of Rehabilitation can be obtained at the Canadian visa offices in Buffalo, Detroit, Los Angeles, New York or Seattle. To qualify, the alien must show a stable lifestyle and that he is unlikely to be involved in future criminal activity. Factors include remorse for the criminal activity, acceptance of responsibility, change in lifestyle and stability in career and family life. This is much more broad, and arguably easier to prove, than the 601 hardship waiver in the United States. The 601 waiver requires a showing of extreme hardship to a qualifying US citizen or lawful permanent resident family member.

If convicted of a single, minor, offense outside Canada, including a simple DUI, the person is eligible for “deemed rehabilitation” after ten years. If there is a compelling reason to visit, the foreign national can apply for a temporary resident permit which will temporarily waive the ground of inadmissibility.

Just how the immigration laws of the United States and Canada can affect citizens on both sides of the border is illustrated in the story of Janeane Ardiel and David Williams, newlyweds who cannot live together as husband and wife but rather must limit physical interaction to brief meetings at the Peace Arch on the US-Canadian border.

Williams, an American with a DUI conviction, is barred from entering Canada based on his criminal conviction. Ardiel, a Canadian whom US immigration officials feels has immigrant intent, cannot enter the US as a tourist to visit her husband. After being denied entry by US officials, Ardiel started the legal process to obtain her green card, however the wait can take up to a year. In the meantime, the couple’s sole interaction occurs at a metal picnic table in a no man’s land between the two countries, probably under the watchful (invisible) eye of border patrol agents.

Williams and Ardiel are not the first couple to run into immigration issues, however, as evidenced by the fact that the site is a common meeting point for separated couples. Canadians and Americans can visit the park without breaking the law or crossing the border into the neighboring country. Williams and Ardiel’s story illustrates the facility of the long-held belief that spouses of US citizens are automatically entitled to live and work in the Unite States or, at the very least, have free access to visit the US citizen spouse. When a US immigration official believes that a visitor has immigrant intent, he or she will be barred from entering the United States and told to go get the proper visa. Depending on the circumstances surrounding the attempted entry, the personal may also incur a misrepresentation charge which will need to be waived by immigration officials.

While I fully support Canada’s right to exclude whomever they’d like from their great nation, I believe a little bit if quid pro quo is in order here. Therefore, would all Canadians who live here and/or work in American jobs and have a felony conviction or DUI proceed immediately to the nearest exit?

It will be interesting to see how Canada deals with criminal issues for visitors coming to watch the 2010 Olympic Games in Whistler and Vancouver in mid-February. Given that, historically, Americans have sometimes been able to cross the border into Canada with just a waive to the Canadian border patrol agent, a real danger exists that prospective Olympic spectators from the US will not research admissibility to Canada in advance and will be turned away at the border. Neither the Olympic organizers nor the Canadian government seems to going out of their way to warn unwary travelers about Canada’s rather strict anti-crime immigration policy. Cost of hotels, transportation and tickets to Olympic events? Thousands. Value of visiting the Canadian Embassy’s website to review admissibility rules for Americans before you go? Priceless.