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Tuesday
Nov112014

Do I need a waiver to enter the United States?

QUESTION: I have never been to the United States but am concerned that I might require a waiver to enter the U.S.  When I was 18, I was charged and convicted of Uttering Threats (indictable) to destroy real property of the RCMP.  I was sentenced to 2 years probation.  It was a case of not thinking before I spoke.  It is the only conviction that I have ever had, and have not been in trouble since.  I am 40 years old now.  I really want to travel to the U.S. to visit some friends, but I am truly afraid to cross the border.  I have heard stories about people getting in a lot of trouble.  Do I need a U.S. entry waiver?  Any help with this would be greatly appreciated.

REPLY: Thank you for your message.  I am sorry to hear that you are afraid to cross the border.  While I cannot provide you with case-specific information without first reviewing your case in detail, I can provide you with some general information that might be useful. 

Under the Immigration and Nationality Act (“INA”) § 212(a)(2)(A)(i), any foreign national convicted of a crime involving moral turpitude is inadmissible to the U.S. and will require a waiver to enter.  The term “moral turpitude” generally refers to conduct that is inherently base, vile, or depraved and contrary to the accepted rules of morality and duties owed between persons, or the duties owed to society in general.  A crime of moral turpitude (“CIMT”) has been defined as an illegal act that is, in itself, morally reprehensible and intrinsically wrong as opposed to an act that is wrong simply because it is prohibited by law.

The test to determine whether a particular crime involves moral turpitude is whether the underlying act is accompanied by a vicious motive or a corrupt mind.  This is determined by examining the statutory definition of the offense, not the conduct that resulted in the conviction.  The offense of Uttering Threats defined at § 264.1 of the Criminal Code of Canada punishes individuals who make threats in “any manner.”  There is no specific intent required by statute.  This means that someone could be convicted for Uttering Threats if they were to convey a threat in a negligent or reckless manner.  There is no requirement that the threat be conveyed with evil, malicious, or vicious intent.  Thus, a conviction for Uttering Threats under § 264.1 of the Criminal Code of Canada would likely not be deemed a crime involving moral turpitude and therefore not render the person convicted inadmissible to the U.S.

I hope this information is helpful.  If you are interested in receiving a complete professional analysis, please consider contacting my office to set up a consultation

 

To learn more about how the Board of Immigration Appeals ("BIA") defines crimes of moral turpitude:

Matter of Flores, 17 I. & N. Dec. 225 (BIA 1980)

Matter of Serna, 20 I. & N. Dec. 579 (BIA 1992)

 

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