Persona non grata in the United States of America
I’m just trying to come to terms with what can only be described as one of the single largest fusterclucks I have ever experienced in my 45 years on this planet. Even with a day to digest what happened, I really can’t get my head around the magnitude of the absurdity, nor just how significant the long-term impacts may end up being. Upon a little reading and thinking back 27 years, it’s entirely possible that bad luck, a mispoken word or two, and complete honesty on my part, has rendered me inadmissible to the U.S. I should note at the outset that I have traveled to the U.S. several times a year throughout most of my life without so much as a sideways look.
I have provided a couple pieces of information below from a paralegal business web site that assists inadmissibles to obtain waivers. It’s a comprehensive page that essentially agrees with and summarizes information I’ve found in various locations.
An expensive shopping trip
Saturday morning we headed down to the Seattle outlets to do a day of shopping. We were planning to save the big shopping for our time in Hawaii, which was to start two weeks today, but is now going to be canceled thanks to Saturday’s events. After two hours in the lineup at the border, our turn came to answer the obligatory questions regarding our reason for traveling to the US, where we were from and whatever else the border guard felt like asking.
As is sometimes the case, on this trip we were asked if anyone in the car had ever been arrested and, as always the case, I answered honestly that I had been arrested for what I will simply refer to as a minor infraction, in 1983. Unfortunately, this infraction, no matter how tiny, falls within an area that is subject to zero tolerance in the U.S. We were then pulled aside for a closer inspection – something that occurs hundreds of times a day at every border crossing, but which I had never experienced before. Usually when I say that it occurred 27 years ago and that I received a pardon 24 years ago, that’s where it ends and I’m allowed on my way into the US. Not Saturday.
Self-incrimination
Once we snaked through another hour-long lineup inside the U.S. Customs and Border Protection (CBP) building, I was asked exactly the same questions again, with a twist. I was asked what happened with the arrest and …. I drew a blank. When I again said that I’d been pardoned in 1986, I was informed that the U.S. does not recognize foreign pardons and the CBP agent wanted to know whether the arrest had ended in conviction. Frankly, I hadn’t even thought of the disposition of my infraction in probably twenty years, only that I’d been pardoned. Even when I obtained a top-secret security clearance from the RCMP to work in their E Division Strategic Communications section in 2006, my teenaged transgression didn’t pose any kind of issue or very much discussion at all. Unfortunately, the RCMP isn’t in the U.S. and that fact meant exactly squat when I relayed it to the CBP agent.
I was on the spot and responded that I wasn’t sure what had happened with the arrest. When pressed for an answer I said that I thought I may have been convicted but, again, had been pardoned. That was all it took and, after another hour for the interaction to be processed, and for me to be fingerprinted and photographed so that it could be entered into the CBP database and presumably correlated with my S.I.N., we were turned around and sent on our way back home. To get my passport and driver’s license back I had to sign a copy of the report the CBP agent entered and when I asked for a copy, was told that I could only obtain it through a FOI request.
I was told that, despite CBP running a check which turned up nothing on me, my admission of a conviction rendered me inadmissible to the U.S. I was given a form to apply for a temporary waiver to cross the border, one which includes several attachments, requires I obtain several more official documents and include $545 U.S. My understanding of the aforementioned form is that I would have to apply in advance each and every time I wanted to go to the U.S. I was also told that if I could produce court documents indicating that my charge did not end in conviction, it is possible that I could have this new record expunged. However, there’s a chance that file may not even exist any more.
From the Canadian Legal Resource Centre, Inc.:
However, it is possible that old pardoned files and court documents may eventually be destroyed (usually this only occurs when the criminal record is small, minor and very old).
Upon further reflection
When I got home and cleared my head a little, I did some research and reading of various resources on the net to figure out what my next course of action might be. As I had time to think a little I realized that I had, in fact, not been convicted but had received a discharge, as I now recall at the time my parents were concerned about how a conviction might impact my ability to travel abroad. The fact that I misspoke, as it turns out, may not matter though. Apparently, a conditional discharge (which is what I recall I received) ‘may’ be viewed the same as a conviction.
From the Canadian Legal Resource Centre, Inc.:
Even though a discharge is not a conviction, it is still evidence of guilt, and may still render a person inadmissible to the United States.
Unfortunately, the only documentation I’ve ever had is a copy of the Federal Solicitor General’s letter and the pardon I received, both of which mean nothing to U.S. authorities. To unearth court documents regarding my charge, I’m guessing my search may need to begin with Public Safety Canada (the Solicitor General’s role was abolished in 2005), but that accessing what are likely only paper records from nearly three decades ago will be a time consuming process. Even if I can acquire such documents, what they say may not help me much.
There are also apparently circumstances under which I may be able to apply for a waiver to my inadmissibility if I can’t prove I was discharged to CBP’s satisfaction, but I am not sure of what they are and will need to speak to a lawyer first. Some sources I’ve read suggest these waivers are for 1-5 years, but I’m unclear as to their duration right now. I don’t like to muse and second-guess too much when this is so fresh and I’m not really in possession of enough facts. The notion that I could now salvage the family trip to Hawaii in two weeks is pure fantasy. Did I mention that attempting to cross the border when you know you are inadmissible to the U.S. can be punishable by anything from vehicle impound all the way up to being taken into custody?
As I’ve been thinking about what I’ve read on various legal sites and on the U.S. CBP site, it’s entirely possible that I’ve always been inadmissible to the U.S. and have simply been lucky for almost three decades. In particular, the following applies to me:
It seems to me that for cases where this much time has passed and where a person can demonstrate that they are no risk whatsoever to the U.S., some sort of mitigating factor could come into play. The word ‘wrong-headed’ doesn’t begin to cover the application of this law to cases like mine.
If only that’s where it ended
The Hawaiian trip is the second piece of this puzzle, which is only adding more salt to the open sore. We’ve been trying in vain to confirm our trip cancellation insurance through both Expedia and the insurance provider, Mondial, since we booked the trip in April. Expedia has the money and has given us a policy number, but Mondial has never received the order and has no record of the policy being issued. I’d bet we’ve contacted each of them between six and ten times, escalated our issue past the customer service reps and gotten nowhere. While the policy number and our payment probably gives us legal grounds, getting the money back may well take some doing. Expedia stipulates that claims must be made directly through the insurance provider – the one that presently has no record of the policy.
Since we hadn’t received the actual policy we had only looked over the conditions provided by Expedia in a cursory fashion. After yesterday’s ordeal, a closer look suggests that the hotel may be subject to neither cancellation nor refund. Again, this is early and I’m not going to over react without first going through the process of trying to cancel the trip. In the end we’ll likely end up in cyclical conversations with Expedia, Mondial and perhaps even the Hilton Hawaiian Village and Westjet. At this point where it will end is anyone’s guess.
Regardless of this new, major wrinkle, we had already decided that we would never use Expedia or Mondial for anything again, and will use in-person travel agents only from now on. Online agents do not provide particularly good deals any more and you’ve got no real person who’s accountable to you as a paying client.
Moving forward
While I take full responsibility for being a teen who made the type of mistake that thousands of teens do, and realize that not being in possession of specific details regarding that mistake as I crossed the border clearly didn’t help matters, I’m having a little trouble with the premise of the whole thing. I do cut myself a little slack for a fuzzy memory given the amount of time that has passed. This has me wondering just how many people have very old issues come back to bite them in this way and, further, how many people inadvertently phrase something in such a way as to incriminate themselves?
If the zero tolerance nature of these grounds for inadmissibility to U.S. soil is designed to keep risky people out of their country, it’s done the exact opposite in this case. That the CBP agent wasn’t prepared (or perhaps even able to) consider the lack of anything incriminating against me, my dozens upon dozens of trips to the U.S. over nearly three decades, nor my suitability to be employed with Canada’s national police force in a sensitive role as mitigating factors, suggests that this particular law/policy is inherently flawed. This doesn’t even take into account what I would be dealing with if, say, my job depended on routine travel to the U.S.
What is, perhaps, the most difficult to understand in all of this is how, at 45 years of age, almost thirty years after my incident, with decades of U.S. travel and a history of numerous complete disclosures of my past to U.S. border security, I am now considered a threat because one conversation happened in a way that it never had before. Unbelievable. Unfortunately, I’m at the very early stages of understanding just how screwed I may end up being as a result of Saturday’s events. Unless an option I’m not presently aware of appears once I’ve consulted with a lawyer, what I’m left with is either providing evidence of my discharge from a file that may well no longer exist or applying on a regular basis for expensive waivers to cross the U.S. border.
July 30th, 2010 at 7:11 pm
OY. I have heard stories. Many many. Similar ones, in so many ways.
At the end of the day? It all depends on the mood of the border guard, and how friendly he/she is at that time.
There is really no actual policy in stone with these things you know? Sure, there are guidelines, but then it all falls to the “discretion” of the person at the border.
And they are not all sane individuals. And they may have had an argument with their spouse, or they perhaps do not like your haircut.
They can and will write a lot of other things on the file that will be seen every time you attempt to cross from now on too.
Welcome to the post 9/11 world! Where we stay free by giving up all freedoms and looking at all with suspicion beyond rationality.
July 30th, 2010 at 7:16 pm
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July 31st, 2010 at 4:38 am
Friggin hell, that is a pisser, James. I have to agree with pale. In my experience crossing the border, you sometimes roll through smoothly, and sometimes you hit someone on a bad day in a bad mood hellbent on taking it out on the next poor sucker who shows up. They can make your life a living hell. And anyway, Mexico is much cheaper than Hawaii for a holiday
July 31st, 2010 at 9:07 am
Conditional Discharge
Are in place so that people have opportunity to live productive life and contribute to society.
I am much a similar situation. I made a similar mistake as you about 15yrs ago before. I am not sure if zero tolerance was in place at the time. I almost was denied entry which would have met I would lost my job at the time. The said thing it was my honesty which resulted in my prosecution in the first place. I admitted to throwing the first punch. And I was given a court assigned lawyer. I learned my expensive lesson back than. Never accept a court assigned lawyer. You are better to defend yourself. I was given a gun restriction, despite the fact that even the police who charged me did not think I was deserving of the charge. I had been selected to be a weapons procurement office for DND. My life changed at that point.
Returning my situation, I was let in to the US for my work. And was told to respond,
“charged, but do not have a conviction”
Zero tolerance prevents people returning to a productive life contributing to society.
July 31st, 2010 at 10:33 am
that sucks. and not in a good way.
as pale says it really depends on what side of the bed the guard got out of that day.
were i u, i’d get me an american lawyer to sort it out. it’ll be expensive but worth it in the long run.
July 31st, 2010 at 5:17 pm
Thanks for the comments folks.
@pale – I agree that it all pretty much depends on who you encounter and how they feel. I guess once they flag you for closer inspection, though, the folks inside have to follow up. The U.S. is certainly a safer place now.
@clint – I actually held onto this post so it’s older than the yesterday references would suggest. I agree about the cost of the trips and now Mexico gets my hard-earned $ and overall I’ll probably save a grand for four of us.
@guy – I feel your pain, but unfortunately we cannot alter the past. In my case, getting past the honesty issue, I also can’t help feeling that mis-speaking under pressure may be what really killed me.
@backseat – There are folks here who can also help. First thing will be an FOI request to the RCMP (when I finally get a chance to sit down and do it) to get my pardoned file which apparently will exist if it happened before 1992. If it says ‘conditional discharge’ as it should, then I’ll take it to CBP and plead my case to get it removed. Then, I’ll be looking at further options.
The thing I have to accept is that whatever the end game, it’s going to take a while to get done.
August 1st, 2010 at 5:35 am
[...] James Wanless’ recent experience in trying to cross into the United States. He found out the hard way that youthful indiscretions, [...]
September 19th, 2010 at 2:41 am
James…
The same thing just happened to me… With a couple of twists… I went for work, with a colleague no less and was turned away for something that happened in 88… The other twist was that I was, (technically am) a U.S. Permanent Resident. That’s right, I went through the whole process of becoming a U.S. PR and became a US resident in 2006. With the downturn in the economy I needed work and decided to return to Canada. But I didn’t turn in my card. Because of that I was sent into the CBP for a Check… If I had stayed three more years in the US I’d be a citizen, but now I’m persona-non-grata too…
Oh yah I forgot, I have a house and still pay taxes in the US for my business that’s going under… So trust me, I know how you feel!!
I did find out that if you trail was conducted as a Summary rather than Indictable and you have the court records to prove that, then you will be allowed back in without getting a waiver… If it’s indictable you’re sunk and you’ll need to get one…
There is no way to know if your trail was Summary or Indictable without the court docs. The reason for this is that the trail can be held as a Hybrid, and the Crown can make the decision at the time of the trail…
The law is meant to screen for the people how are on the other side of the law, which I understand. Even though we were at one time many years ago. I think the US gov. should place some sort of time period where this does not apply… Or at the very least allow the officer to make a judgement base on a case by case biases.
I’ll let you know what happen, and I’d like to know what happens in your Case too, if you’d be so inclined…
Good Luck to us Both…
Michael
September 19th, 2010 at 8:43 am
Update to the story: After many questions and phone calls I finally found what was supposed to be the right form to apply for the contents of my pardoned criminal file. Sent it in, waited and just recently got the first response.
Even though I was told to use this file by the RCMP themselves in the first place, the official response to my request under FOI says that pardon requests are not handled under the privacy act and that I need to re-submit with a different form. There’s one version if it’s a personal request and one version if it’s a pardon request. I will have to obtain a set of fingerprints, re-submit and wait.
If it ends up that I require a waiver, then I will get legal assistance because I can well imagine the gong-show that will ensue (and the number of documents you have to submit for a waiver is exhausting).
Stay tuned for more exciting details.