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. There are two types of discharges:
- absolute discharge
- conditional discharge
Regardless of the type, the Criminal Code of Canada confirms that there has been a finding or admission of guilt. The United States treats a discharge the same as a conviction or any admission of guilt (ie. you admit to having committed offence even if not convicted).
Non-Excludable Conditional Discharges & Other Offences
A conditional discharge, absolute discharge, conviction or any admission of having commited a crime will not affect travel to the United States if it is relation to one of the following non-excludable offences (meaning one of these offences will not prevent you from travelling to the United States):
- common assault
- assaulting a peace officer
- impaired driving
- fail to comply or breach
- causing a disturbance
Excludable Conditional Discharges & Other Offences
An excludable offence is any offence which prevents you from gaining legal entry to the United States unless you are in possession of a valid Waiver of Inadmissibility. An excludable offence would inclulde any conditional discharge, absolute discharge, conviction or any admission of having commited a crime related to one of the following offences:
- Crime of violence (where element of intent to harm exists, including sexual assault)
- Crime of Moral Turpitude (CIMT) (ie. Dishonesty such as theft, fraud, possession of stolen property)
However, there are a few exceptions to the inadmissibility rule above, meaning if one of these exceptions applies to you, you do NOT need a Waiver for legal entry to the United States. They include:
- One-Offence Exemption Rule: If you have only one offence (ie. Discharge, Conviction or any admission of guilty) for a CIMT and it was tried summarily then you will be exempt from in admissibility (meaning you won’t need a waiver). Anything drug-related and crimes of violence (where element of intent to harm exists or it was in relation to sexual assault) would normally make you inadmissible to the United States if you were an adult.
- Youth offences: Youth offences would only make you inadmissible if you were under the age of 18 at the time you committed the offence, you were tried as an adult and the discharge or conviction was in relation to felony violence or felony drugs.
DISCLAIMER: The description of inadmissibility is general in nature and may not apply to you. For example, there have been situations where you may be able to overcome your inadmissibility even for an offence that is normally excludable (ie. you may cause harm with a weapon but that weapon could not possibly cause serious injury or harm–then an exception might be given to you). Laws may also change. For details about your specific situation, please call for a free consultation.
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Must I Disclose a Conditional Discharge to U.S. Authorities?
QUESTION: If my discharge has already been purged, can the United States access it and do I have to disclose it to the United States?
ANSWER: The answer is “no”, they can not access it after it was purged (unless they accessed it prior to purging and they now have their own file). However, we can not counsel misreprentation. The U.S. authorities expect you to disclose to them any offence you may have committed or have been found guilty of.
Once excludable, a person is required to go
through the process of obtaining Waivers for the
rest of their their life for legal entry to the United States
(unless they become a U.S. citizen).
Note: if you have an excludable offence, it is unlikely the U.S. will grant a Waiver until it has been at least 5 years since the offence occurred; unless you have compelling reasons for going to the U.S., your record is not lengthy/serious, and there is sufficient proof of rehabilitation Note: waivers can take around 8 to 18 months to be granted. If there are no compelling reasons for going, but you want a waiver at the earliest opportunity, we recommend you contact us approximately one year in advance of the general 5-year period or at the 4-year mark.
- Absolute Discharge and Simple Possession of a Narcotic
- Automatic Purging of Conditional and Absolute Discharges
- What is a Conditional Discharge or Absolute Dishcarge?