September Letter

#75 you are 100% correct and telling people to lie to a federal officer is a federal criminal violation under 18usc. You will not get a September Letter for the most part if you have a weed conviction. Anyone.

Btw I am back to the forum now as we have been greatly tied up with business and the new services that we have been developing will be offering.

Yes, no one can legally tell a person to lie to a CBP officer or any USA federal law enforcement officer. By telling/encouraging people to lie to CBP you have just broken USA federal law.

usentrywaiverservices.com

#79..Actually, under a few circumstances, you can be denied entry under a D.U.I. D.U.Imeans Driving Under the Influence. Now you could be driving under the influence of Marijuana and that would make you inadmissible under the D.U.I category.

Also, if it is deemed to be an Aggravated D.U.I then they could also technically get you denied entry. D.U.I will be a new focus now for the sharp CBP officers if they ask you what were you under the influence of....based on the legalisation of Marijuana.

@sk123

“Theft under $5000 is considered a hybrid offence; depending on the severity of the crime and other factors, it can be an indictable or summary conviction offence. Canada's Criminal Code allows for a punishment of up to two years in prison for those found guilty of theft under $5000.Jul 13, 2017”

Where did you get the impression the maximum was 9 months?

The "petty offence exemption" rarely applies in my experience. You were not given a conditional discharge, you were actually convicted. So although never actually applied, you could have faced a maximum of 2 years in jail.

If you did a waiver, and did a great personal letter, and they GAVE YOU a waiver, then Homeland Security thinks you need a waiver.

I find right now its "oh we didn't realize you were a juvenile" that seems to get September Letters after an initial waiver has been granted. Maybe things will change in the future, but people who look for "loopholes" in Homeland Security are usually just giving you false hope for big fees.

You applied for a waiver, you got a waiver, you probably need a waiver. See my post where I re-applied for a waiver for a client, and because we showed more evidence he was a juvenile for the one offence, he was given a September Letter. Homeland Security cannot be FORCED to do anything, but they do sometimes act reasonably.

I have many clients with theft under $5000, $1000, even $500 who they still give waivers too. Remember, the criminal code isn't changed in terms of "sentences" that regularly. Judges are fairly lenient anyways.

The "$5000/$1000" reflect that the cost and value of stolen goods needed to be updated. Stealing a chocolate bar is "theft under $5000".

You need a waiver. Stop hiring lawyers. They are rarely ever as experienced or as knowledgeable as people who do a LOT of waivers.

@sk123

If you were given diversion as you suggest, you were not convicted in Canada but the US officials view this as a conviction regardless. The matter in Canada is sealed and not revealed to the public which is similar to a pardon. However, the charges do stay in CPIC and can be seen by US border officials as you have been given an FPS number (fingerprint number). In contrast, a pardon if done properly removes the fingerprints from CPIC.

There is a misconception in Canada regarding criminal records. Canada follows the same policies as its british counterparts and other former british colonies. There are ways to avoid a criminal record like diversion, peace bonds, discharges, stayed charges, acquittals or withdrawn charges. Getting an acquittal is in your best interest as you are found not guilty and can request to have all the information destroyed. Almost always, it is not possible to get an acquittal and most people accept their guilt and get diversion, peace bonds or diversions which avoids a conviction as part of a bargain deal with the Crown prosecuter. These dispositions do not necessarily exist in the USA. Each state follows their own rules and the US federal government does not recognize any of the canadian dispotions. To them, you are guilty of a crime that if committed in the USA would make inadmissible as you admitted your guilt.

You need to understand that once you get arrested, the police must fingerprint you and regardless of the disposition, the fingerprints are stored in CPIC forever unless they are removed.

You can apply for a file destruction at the original arresting police force. If they agree, they will destroy your fingerprints or FPS number. They rarely destroy their own police reports/records however. Under the Privacy Act, you can request to see what information they have on you and possibly ask to purge the record but the requests are denied most often.

There is strong evidence to believe that your renewed biometric passport now contains your FPS number from CPIC. Most countries can see you have been fingerprinted if they conduct a deep search on you. Only the USA will give you trouble at the moment, most countries will not entertain the idea of conducting deep searches on you except the ones where you need to apply for a Visa to enter.

There is the petty offence rule in US immigration law but it seems US immigration officials rarely consider it. It wasn't the case in the past. New administrations over the last decade seem to follow their own rules and policies and do not necessarily abide to US immigration law. Nowadays, its more tougher than ever. You are now on the waiver program, so there is no other way to remove you from the list unless you are able to demonstrate the following.

A diversion for US immigration is considered deferred adjudication which is similar to getting a peace bond here in Canada. A peace bond is also considered deferred adjucation. It means you are admissible to the US as you do not admit guilt at least on paper. However, Homeland security officials do not seem to know how to navigate through all these loopholes. You will likely need to demonstrate that your diversion is considered deferred adjudcation under US law and that you are admissible. This will grant you a September Letter if you are able to demonstrate it. Also, if you were under 18 years of age, your crime is considered juvenile delinquency and will get you a September Letter. Good luck.

Sigh...The Petty Offence Exception does indeed apply at certain times and it will depend on the severity of the conviction. #84 you may or may not qualify. It will depend on the specifics of our case. Sometimes CBP will mistakenly deny a person entry in regards to a criminal offence.

In my experience, we have used it a number of times and the person can get a lifetime clearance. It will just depend on the case. Also, just because you applied for and was granted a waiver does not necessarily mean that you will have to get one forever,. If it is something like PPT then yes...However, some of the other offences can be cleared other ways and again it depends on the specifics.

Lawyers can be a hit or miss indeed. I have seen some good ones and some really bad ones. We get some packets that have been prepared by certain BC lawyers that are atrocious...We resolve a lot of border crossing issues and I will agree that you get the real experience from doing a lot of waivers...The only added twist though is that you also want someone that has had some legal training and knows the in and out of the process from top to bottom.

Not every offence even needs a waiver. I have spoken about obtaining these September Letters many times before. We have a section on our site explaining them as such.

There is one thing that I want to quickly touch upon. It has been suggested by someone here in the forum that you do certain things regarding your case and then telling CBP that you have never smoked Marijuana or been arrested. Essentially being told to lie to CBP. I want to list the actual statute in this regard:

“Title 18, United States Code, Section 1001, it is a Felony criminal offence to provide false statements to a federal officer. It is punishable up to 5 years in prison and/or $250,000 fine and supervised release of not more than 3 years.”

Title 18, United States Code, section 1621, It is a Felony criminal offence to provide false statements while under oath. You may be fined under this title or imprisoned not more than five years, or both."

This is in regards to the other post where people were asking about admitting to weed smoking and they were told to just lie to CBP and say no that they have not been arrested or smoked marijuana. Anyway just FYI.

@kscott

“This is in regards to the other post where people were asking about admitting to weed smoking and they were told to just lie to CBP and say no that they have not been arrested or smoked marijuana. Anyway just FYI.”

Are you telling everyone this because you assumed if they were CAUGHT lying it would have no consequence? I don't think anyone thinks that, in Canada obviously lying to police has a consequence.

The point is telling Canadians the truth about what their options are, and letting them make an informed decision. You would advise Canadians WILLINGLY tell Homeland Security information they do no know to "avoid a felony"? Or because the United States, run by Donald Trump, is the beacon of justice and honesty, and as Canadians we should always tell the truth?

@hatsbootshatsboots I see where you think he was not convicted, because he said:

“The charge was Theft (under $4K) that happened in 2005. I received pretrial diversion and the case was dismissed after probation.”

But the "hint" is probation. So although he worded it in such a way as to minimize the situation (clients invariably do this all the time) you can't get probation without being found or pleading guilty. Conditional Discharges are only granted when you plead guilty and can be removed after 3 years without a pardon. They also have probation but they are also "convictions".

The other hint is he was given a waiver. They would have not have granted him a waiver if he was never convicted. The reason you did not pick up on this is as you have stated before, you do a handful of applications for people you know. When you have done MANY Pardons and Waivers, you are able to quickly see through the language. His language was partially because his lawyer convinced him he did a "great job" and "got him off". But he didn't. He was found/plead guilty. I spend half my day correcting the following statement;

“I was told to pay a fine and do probation and the record would go away after 7 years.”

or

"I was discharged, given probation and found not guilty/my lawyer got me off".

Its lawyerspeak for "hey, I did no work on your behalf other than call the Crown, and tell him you would plead guilty since in Canada we have a lenient system and I do nothing but arrange pleas you could have done yourself, but pay me $5000 to do for you. As a matter of fact, I would have no clue how to actually fight this in court." Then once the deal was done, the hardest part was actually selling you on the idea that I did a great job and by the time you realize that I ripped you off it will be years later.

@John and sk123

Canada does have a more lenient justice system because it believes in criminal rehabilitation but the US does not really believe in second chances. It's one of those major differences we have with our neighbors of the South. This is all politics and out of the scope of the topic however.

Getting diversion in Canada involves admitting guilt and it's something a lot of minors get. Diversion involves probation most of the time. In Canada by law a conviction stipulates a judge convicted you of a said crime. Unfortunately, people confuse the definition of the word conviction. Getting a conviction means you get a "formal" criminal record on CPIC.

Peace bonds, diversion, absolute or conditional discharges, dropped and stayed charges are not convictions in this country by law. Most often, the accused must admit guilt and lawyers as you mentioned will try to win their cases by avoiding a "formal" criminal record for their clients striking deals with the prosecutor. Many charges are laid by the Crown which have no merit, call it poor decision making from police, false statements given by police or poor judgement from officers following an arrest. In this country, police cannot legally charge anyone, it's the Crown. A lot of these cases clog up criminal courts. Prosecutors and lawyers have no time fighting over small charges and strike deals to push the accused through the system.

The prosecutors will often try to avoid expensive trials as they know the charges can be defeated. They don't want to withdraw the charges to avoid public scrutiny or to save face and a bad lawyer knows they can't get an acquittal even though a good lawyer can. After lengthy talks, they offer a discharge, peace bond or diversion to the accused promising no criminal record but it's not necessarily true.

As I mentioned further up, once the police arrests you, they are legally required to fingerprint you. They create a file on CPIC with a fingerprint number, what we call a FPS #. This can have long lasting future consequences for some individuals after getting acquittals or discharged for example. The reason : the fingerprints are not purged and can be seen by US officials.

Technically once you get arrested you get a criminal record. A lawyer's job is to break the bad news to you but they just collect your money and promise false hopes. They will propose peace bonds, discharges or diversions as they have more important cases to win, no time or they don't find a particular case important enough.

For US immigration purposes, admitting guilt is enough to make you inadmissible. In the past, many Canadians would get September Letters or be able to cross with discharges or diversion but over time, they were deemed inadmissible. New administrations make up their own rules. The petty offense rule does exist but with my experience is disregarded by CBP agents and Homeland Security. Some offences do not bar you entry to the US but CBP agents can legally deny entry to anyone.

It takes a lot to prove to Homeland Security that a discharge or diversion does not constitute a conviction or for a client to qualify under the petty offence rule. Someone get away with it if the offence was committed as a minor. Diversion or a peace bond is considered deferred adjucation which many states use. Deferred adjucation involves no guilt at least on paper. Some states also have discharges however the federal US government does not have such dispositions.

A pardon if done properly removes the fingerprints from CPIC. Discharges, peace bond, dropped charges, stayed charges or diversion do not. It takes a file destruction to remove the FPS #. Sometimes, the FPS # is removed following the purge of an absolute discharge, usually a year after sentencing or 3 years for a conditional discharge. We are never too sure however that this happens automatically. Many people get pardons but the FPS # remains because a said charge was withdrawn by the Crown. File destructions can be denied.

In my opinion, the best approach for someone following a criminal matter is not to travel regardless of the disposition. I do understand that people need however to do so. The best approach once again is to try to hide, conceal or destroy the most information from CPIC before travelling. Criminal reform is needed but hardcore Conservatives will tell you otherwise, hating on Liberals. Liberals will try to avoid the matter because they rather avoid public scrutiny.

So the lesson is to keep your cool and stay out of trouble.

@HatsBootsHatsBoots

“Peace bonds, diversion, absolute or conditional discharges, dropped and stayed charges are not convictions in this country by law. Most often, the accused must admit guilt and lawyers as you mentioned will try to win their cases by avoiding a "formal" criminal record for their clients striking deals with the prosecutor.”

Your lumping Conditional and Absolute Discharges in with "non convictions". You must plead guilty to get an absolute or conditional discharge. You are therefore "convicted".

The Criminal Records act was amended on July 24 1992.

“Sometimes, the FPS # is removed following the purge of an absolute discharge, usually a year after sentencing or 3 years for a conditional discharge. We are never too sure however that this happens automatically. Many people get pardons but the FPS # remains because a said charge was withdrawn by the Crown.”

The discharge is NEVER automatically removed. You must "prompt" the RCMP by doing fingerprints, 1 year after an absolute discharge, and 3 years after a conditional discharge.

When you get a pardon the FPS# does NOT remain. Convictions AND charges are BOTH sealed.

No offence, but you pontificate like an expert but get these crucial details very wrong. Its not "opinion", its fact. And I have corrected you before on these facts, and you still say the same inaccurate things, mixed in with accurate statements. There is nothing wrong with commenting on things you are SURE of, but its not good for anyone when you make statements that are not accurate.

If you are not sure, don't google. Ask.

@John

By law in Canada, absolute and conditional discharges are not convictions. You are very wrong on this. I already explained that in previous posts.

Here's what the law says:

“In Canada, a conditional discharge is a sentence passed in criminal court in which an individual is found guilty of an offence but is deemed not to have been convicted. Although a discharge is not considered a conviction, a record of an absolute or conditional discharge is kept by Canadian Police Information Centre (CPIC) and by the charging police agency and is purged from the individual's police record after a period of time: one year in the case of an absolute discharge, three years for a conditional one.”

Conditional and absolute discharge

“730 (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order

Marginal note:Effect of discharge

(3) Where a court directs under subsection (1) that an offender be discharged of an offence, the offender shall be deemed not to have been convicted of the offence”

Reference: Canadian Criminal Code

You have repeated the same thing I just mentioned before that the fingerprints remain after a discharge is purged and a file destruction is needed to remove them. A pardon if done properly removes the fingerprints.

You just repeat what I say in your own words thinking that you correct me.

By the way, discharges can be considered convictions for other countries like the USA. The USA Immigration Act INA 212 states that admitting guilt to an offence if committed in the US makes you inadmissible regardless of disposition.

The information is available for anyone to see. Nobody is an expert John.

I am an expert. Pleading guilty means...you were found guilty.

Did you shoplift? "Well I plead guilty but got a discharge".

Did you shoplift "Well I plead guilty and got probation".

Do you have a criminal record? In both cases yes. Were you punished? In both cases yes.

The difference is ONLY in how you get RID of the record. One requires a pardon, one does not.

Its ludicrous to say you plead guilty of a crime, but were not "convicted".

HATS BOOTS is 100% correct in what he says as usual. It is very detailed information and very impressive. I am not going to rehash everything HATS BOOTS and JOHN said. However, a conviction is essentially a finding of guilt by the criminal court.

This finding is obtained in various ways and I will not spell out all areas since we would be here for years debating it as such. Obviously, if a person pleads guilty then they could be found guilty. However, there is something else where a person pled guilty due to the incompetence of the lawyer. Convictions can be reversed in these cases.

The big thing here though in terms of convictions....A Conditional Discharge is not recognized by CBP and the person may still need a waiver. An Absolute Discharge is not a determination of guilt by CBP.

Also, a Diversion case may not necessarily need a waiver as we have processed those before and obtained September Letters on those cases. September letters are still indeed given out but now are more heavily scrutinized.

Plus, seems they no longer do the narrative/analysis in the decision letter on why a person is being issued the letter.

The bottom line is that the guy may still qualify for the September letter. Would love to do the analysis to see if he would indeed qualify. Does not make sense having to apply for unneeded waivers for the rest of your life if there is a chance that you are eligible for other forms of relief.

@KScott

“HATS BOOTS is 100% correct in what he says as usual. It is very detailed information and very impressive. I am not going to rehash everything HATS BOOTS and JOHN said. However, a conviction is essentially a finding of guilt by the criminal court”

He is not 100% correct as I have shown. If you look at what he writes, most of it is based on an internet search, and not experience. And that is ok, as long as people who take his advice understand that. I am constantly correcting him, because being 85% correct is not the same as being 100%.

“Also, a Diversion case may not necessarily need a waiver as we have processed those before and obtained September Letters on those cases. September letters are still indeed given out but now are more heavily scrutinized”

Diversion is an ALTERNATE to a conviction. Here is where your lack of experience in Pardons shows. You don't get convicted and given diversion. The word "diversion" even means:

"an instance of turning something aside from its course.

“a diversion of resources from defense to civil research”

synonyms: rerouting, redirection, deflection, deviation, divergence

“the diversion of 19 rivers”

So of course they do not need a waiver, they were never convicted. Arrested but not convicted, given diversion. The waiver did not need to be filed.

***The most important thing about this forum is that it be ACCURATE. If someone answers a question, and its accurate, then I don't bother answering. If whats being told is NOT accurate, then we ALL have an obligation to speak up. As I have said many times, if you disagree with something I have said, then please respond. I also point out when something is FACT, and when it is just my OPINION.***

@ John

I have stated you are no expert, none of us are. Laws keep changing with new administrations. We try to help people as we can with our experience. Canadian and US law are two different animals. You are confused about the definition of the word conviction. Many times, the media reports that an accused was convicted and given a discharge. Yet, they say they will not have a criminal record. Once you get convicted, you get a criminal record but if you are not convicted, then you don't get a record. The media is confused about the word conviction.

Canada has many alternatives to avoiding a formal criminal record after pleading guilty to an offence. The US does not have these alternatives and does not recognize them.

How you view and feel about the whole matter is based on your opinion and not facts. What I stated is based on facts.

Many people misinterupt canadian law. How can you expect US officials not to do the same?

@HatsBootsHatsBoots

I am not confused at all. "Convicted" clearly means "found guilty".

A Conditional Discharge means you were convicted. An Absolute Discharge means you were convicted. You plead guilty. You have a criminal record for 3 years and 1 year minimum.

Diversion means you were NOT convicted.

“Many times, the media reports that an accused was convicted and given a discharge. Yet, they say they will not have a criminal record. Once you get convicted, you get a criminal record but if you are not convicted, then you don't get a record. The media is confused about the word conviction.”

The media, like yourself, sometimes say inaccurate things. I do not. Because I am an expert.

If I am not an expert, then who would be? I do waivers, I have many contacts who are in the process of a waiver, I see forums and Facebook pages like this one, and for 6 days a week I immerse myself in talking about, or working on, waivers. I have been doing so since 1998.

I even look at waivers I did NOT work on, about 40-50 a week, when I go to the airport.

Please explain how seeing more waivers than anyone else in Canada makes me NOT an expert? Now, you, like Cliff Claven in Cheers, SOUND like an expert, but are not.

I am sure you are very qualified in whatever else you do for a living.

Umm I have to say that we have actually seen/worked on more waivers/border crossing events here than anyone else. We worked on immigration removal cases in Washington State with a former associate. I have said before that I got into this field around 1995 and then progressed to waivers. I have received formal legal training. I let people make that determination themselves whether they consider us experts.

I will say that HATS BOOTS is usually 100% accurate and I only disagreed on 1 very minor thing that he had said. He is someone that I wish was on my team. I will say that someone that calls themselves an expert is not one. An actual expert is one designated by their peers and the industry. They are recognised by their training, experience, and achievements.

I can say that we all have some positive information to contribute to the common good.

I think the topic of convictions may be a moot point since a person may need a us entry waiver if they have a relevant conviction and have no other forms of relief available. An admission of guilt of committing the actual act regarding a relevant criminal charge(where no conviction exists), could render the person inadmissible to the USA since this is stated in the act.

HATS BOOTS is definitely right when he says a lot of people don't know the difference between a charge and a conviction.

Btw...HATS BOOTS is also right when he said a Diversion may result in a person not needing a us entry waiver. I did not want to say this but we actually got a September Letter on a client that got a diversion in a Cocaine Possession case and does not need a waiver now.

:: @K SCOTT added on 16 Nov ’18 · 11:51

So yeah I gotta give it to HATS BOOTS..He does have a lot of knowledge in this field and almost seems like this is his actual profession. Impressive since even a lot of us immigration lawyers don't know what they are doing..lol