How does an Absolute or Conditional Discharge affect my immigration status?
Have you received an Absolute or Conditional Discharge after committing an offence and are worried how it will impact your immigration status when entering the United States? If so, the lawyers at Basiga Law Firm can help you navigate the process from start to finish.
The types of offences with possible discharges are outlined throughout the Criminal Code of Canada, as well as other, related statutes. If you have already received an Absolute or Conditional Discharge you may wonder whether or not any record of the criminal offence will impact your immigration status.
First, it is important to understand the differences between an Absolute Discharge and a Conditional Discharge.
Absolute Discharges are granted immediately at Sentencing and carry no additional conditions to them.
In contrast, a conditional discharge is granted for an offence once certain conditions are met.
These conditions are usually in the form of probationary terms, reporting requirements, and assessments that must be completed. Once done, assuming the individual has complied with the conditions, the Judge may then grant the conditional discharge.
An Absolute Discharge will remain on a person’s criminal background check for a year, whereas a Conditional Discharge will remain on a person’s criminal background check for three years. Generally, the discharged offences are automatically purged. However, should any of them remain after the appropriate time, a request must be filed with the RCMP (Royal Canadian Mounted Police), by filing out the RCMP GRC 3953 Form (http://www.rcmp-grc.gc.ca/form/3953-eng.pdf).
Absolute and Conditional Discharges will typically not impact your travel into the United States if they are categorized as Non-Excludable Conditional Discharges. These include convictions such as impaired driving, trespass, mischief common assault and causing a disturbance among other offences.
What are Excludable Conditional Charges?
However, there are Excludable Conditional Charges which could impact your ability to enter the United States. These include crimes of moral turpitude, drug offences and crimes of violence. If you have one of these offences on your record you may have to file a waiver. Determining if your conviction falls under one of these excludable charges can be hard to determine, so it is important to get legal advice on whether or not you will need to file a waiver.
Most of these excludable charges will not allow you to gain a waiver to enter the U.S. unless it has been more than 5 years since the offence occurred.
However, each case is different and there are several exceptions when a waiver is not needed. An example of excludable charges where you do not need a waiver are youth offences; meaning you were under the age of 18 when the offence was committed. Since there are exceptions to the rule, it is imperative to gain legal counsel to help you navigate the waiver process to ensure you receive the best chance of gaining entry into the U.S.
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