Canadian snowbirds may be denied entry to the USA because of criminal charges

Canadian snowbirds who are charged with criminal offences such as assault, theft under $5000, and impaired driving may find themselves banned from crossing the U.S. border.

Spending the colder months in sunny destinations like Florida is quite popular for some retirees and other travellers who may live up to six months per year in the U.S. They often have invested in a second home (condo, trailer, etc.) or regularly travel to a specific place where they have developed friends and other relationships.

If the traveller is not a U.S. citizen they may be denied entry by U.S. Customs (CBP) if criminal charges are discovered (pending or completed). Denials most often happen by surprise at the port of entry. In many cases the traveller has made trips regularly without any problems in the past.

Criminal charges may be discovered immediately when your passport is swiped by the U.S. Customs officer at the border.

In cases where there is a CBP red flag alert, outstanding warrant, or BOLO signal this information will pop up when the passport is scanned. At the land border, vehicle license plates are scanned prior to pulling up to the booth where the known owner's name is checked in an integrated database of combined U.S. and Canadian law enforcement agencies. Charges do not always pop up however and in some cases a manual search query for the traveller's name and date of birth in the Canadian Police Information Center (CPIC) database will be made which will show any outstanding entries (pending charges), convictions, and non-conviction records.

In cases where the traveller is sent to secondary for a random or selected inspection, it is much more likely a manual CPIC database search will be conducted before interviewing the hopeful snowbird. Those who require an i94 also have an increased likelihood of being checked in CPIC as Customs will search CPIC routinely as part of the issuing process. CPIC is not the only source of information. U.S. Customs may also call the local police force in your jurisdiction (Toronto, Peel, York, Durham etc.) for clarification and information about a person's criminal background history. This is often done before questioning the traveller to determine their level of honesty.

It doesn’t matter whether you own a property or not. It doesn’t matter how many times you have crossed the border before in the past without any problems. It doesn’t matter how many friends or family members you have in the states. If CBP checks your name/dob in CPIC and determine that you have been convicted of or have admitted to a criminal offence involving moral turpitude with a maximum potential punishment of over 1 year you may be denied entry.

Yes, it says "or who admits having committed". They don't need a conviction. If someone says otherwise they are wrong. Source: Section 2 (A) of Immigration and Nationality Act (INA 212, 8 USC 1182): Inadmissible aliens. You can read the actual law yourself here if you like.

Do U.S. Customs care whether an offence is classified as summary or indictable in Canada?

Yes, they do care as this distinction is comparable to a misdemeanor vs. a felony in the U.S. This being said, there are very few true summary offences in Canada. Most common Criminal Code offences are indictable or Crown elect hybrid indictable. They are sometimes wrongly labelled as “summary” or “summary conviction” offences when they are really hybrid indictable. From the perspective of the U.S. CBP they are indictable offences, not summary ones. The Crown will eventually have the option to proceed summarily, and often does, but at the time of arrest they are still indictable which is why the police can legally fingerprint the accused.

Common hybrid (crown elect) offences like assault, theft under, and mischief can cause problems for snowbirds are sometimes wrongly described as “summary” or “summary conviction offences” when they are in fact hybrid offences, including: theft under $5000 and mischief $5000. For these two offences, the distinction matters because the maximum penalty by indictment for each is 2 years in prison which is beyond the 1 year max sentence inadmissibility exception found in the INA and CBP policy manuals.

You may have read that theft, fraud, or mischief under $5000 are summary or summary conviction offences in Canada with a maximum punishment of 6 months in jail (inside the INA exception of one year). This, however, is not true. They are Crown elect hybrid indictable offences with a maximum punishment of 2 years in prison. This is beyond the allowable INA "misdemeanor" exception. They are also crimes involving moral turpitude (evil intent).

Charges like theft under and mischief may be wrongly described as "summary" in some paralegal marketing found online (since they are not allowed to take indictable cases). They are really hybrid/indictable crimes that can impact U.S. travel.

In hybrid cases, a paralegal would require the Crown to elect summarily in order to legally represent their client (since they are not lawyers). These offences are viewed as hybrid indictable (felony) by U.S. Customs because the accused is subject to prosecution by indictment at the time the charges were first laid. They are not, and never were, summary offences.

While hybrid offences like theft can sometimes cause a problem, it will depend on the Crown's election (if any), the outcome of the case, how the applicant traveller answers CBP's questions, and whether the applicant can provide the necessary documentation if asked to do so. Our lawyers ensure that all of our clients are fully prepared before crossing the border.

Snowbirds should take all steps up front possible to avoid being refused entry and red flagged in the CBP computer system in the first place.

If you have just been criminally charged, remember you only get one chance to get this right. If you are denied entry or "offered the opportunity to withdraw your application to enter the United States" even once you will be red flagged in the CBP computer system. A red flag may result in you being questioned about the charges every time you attempt to cross. Just because one officer lets you in does not mean you will be allowed entry again in the future. The next officer could be of a different opinion in regards to admissibility.

Hybrid offences that can cause problems but are evaluated more on a case by case basis include:

1. theft under $5000
2. fraud under $5000
3. possession of property obtained by crime
4. impaired driving
5. mischief under $5000
6. assault
7. uttering Threats

U.S. Customs will evaluate the potential traveller by determining whether they have admitted to or been convicted of the offence. They may want to know what happened and ask you to explain your side of the story (sometimes under oath while being recorded). They have a right to ask you any question they like. If they determine that you have been dishonest this alone is a reason for denial (and possible ban for up to life).

When evaluating criminal charges, one of CBP's concerns is whether the traveller may pose a risk to the U.S. public. Those who are perceived as dishonest, irate, angry, or unstable may be determined inadmissible especially if they have an arrest record for moral turpitude offences. For cases that are "on the line" such as impaired driving and some forms of assault, how you present yourself, answer questions and describe what happened to CBP will partly determine if you are allowed to cross.

If you are not a U.S. citizen you have absolutely no right to enter the United States. A lot of Canadian snowbirds take crossing the border for granted until they get charged with something. If you have just recently been charged, now is the time to hire counsel to defend the charges and manage these issues to avoid potential permanent problems. There is a right way and a wrong way to proceed.

Some Canadians who have non-conviction records for theft, assault and other offences get in trouble for lying to U.S. Customs about what happened.

They may claim they were never arrested, never charged, haven’t even been fingerprinted, etc. Sometimes the snowbird, who perhaps represented themselves at court or otherwise did not receive proper legal advice, may wrongly think they can answer no to these questions. Some are even under the false impression that they are entitled to answer “no” to these questions since their case was withdrawn. They are not.

The INA also does not just base inadmissibility on a “conviction” because it specifically states it relates to crimes the applicant has been “convicted of” OR “admits to”. An applicant could be denied simply for admitting to something even if they were never charged. There are many things a person can say at the border that will result in them being denied if they are not a U.S. citizen.

Other more serious offences will almost always result in being denied entry if discovered and you have been convicted or admit to the crime. Crimes involving drugs and the sexual abuse of children (including child pornography) will almost always result in a denial if discovered.

When U.S. Customs swipes a Canadian Passport they can see whether your name and dob matches any entries in the Canadian CPIC database.

If a match is made CBP will pull the traveller aside to determine whether the entry relates to that individual or somebody else. Fingerprint and photograph analysis is often used to determine whether the person is a match or not (as people can share names and dobs). This research is often done while the traveller waits to be spoken to in the secondary area. If identification is confirmed, CBP will then question the traveller to see whether they will admit to and be honest about what happened.

The first question is often “have you ever been arrested before?”. This is very different than being convicted or even found guilty because it relates to simply being accused of a crime. Unfortunately, the correct answer to this question is yes for anyone who has ever received an Undertaking (CC Form 10) or Appearance Notice (CC Form 9) from the police.

U.S. Customs may deny entry for criminality even if your charges have been withdrawn, discharged, or pardoned (record suspension).

The U.S. INA gives customs agents the ability to look beyond the ruling of the Canadian courts in assessing admissibility. The wording of the INA relating to criminal inadmissibility is whether the applicant has been convicted of, or admits to, a crime of moral turpitude. This means that even if someone is found not guilty they can still be denied entry if they admit to committing the crime.

Some Canadians admit responsibility for moral turpitude offences such as theft under $5000, assault, mischief and other crimes not realizing it can cause problems at the border.

Given the seemingly overwhelming amount of misinformation describing crimes like shoplifting or simple assault as “summary” when in fact they are hybrid indictable offences, Canadian snowbirds may be under the wrong impression they will not be a problem at the border. In reality these offences are hybrid offences with two year jail maximums that are outside of the INA one year exception.

If you have just recently been charged with a criminal offence (received a Criminal Code Form 9, 10 or 11), please give us a call today at 647-228-5969.

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*2024 Results: the percentage of 99% of clients avoiding a criminal record (conviction) stated on this page is based solely on Lawyer Mark Zinck's personal representation of approximately 2000 criminal defence case clients as of the year 2024. Past results are not necessarily an indication of future results.

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