By Dana M. Grimes, Esq.
The sharing of criminal background information among immigration and law enforcement authorities of many countries of the world has become sophisticated and effective. Our clients often find that foreign customs officials are unsympathetic to traveling Americans with even the most minor criminal records.
Many American travelers who fly to Canada are startled when they arrive at the Vancouver airport and are deemed members of an Inadmissible Class. These insulted travelers are forced to make an immediate round trip back to the United States. It does not take much of a rap sheet to become a member of an Inadmissible Class – even President Bush and Dick Cheney fall into this unflattering category (as they have three DUI’s between them). Members of an Inadmissible Class include those who have been convicted of minor offenses (including shoplifting, driving under the influence, and possession of illegal substances) as well as more serious crimes. As the Washington Embassy to Canada warns, “Driving while under the influence of alcohol is regarded as an extremely serious offense in Canada.”
If you, like Bush, Cheney and millions of other Americans, find yourself deemed unwelcome by Canada, do not despair. If five years have elapsed since the termination of the custodial portion (if any) of the sentence imposed, you may apply for a Minister’s Approval of Rehabilitation, which will permanently remove the inadmissibility caused by a conviction.
Presently, immigration officials are able to search background information much more easily than in years past, due to advancements in screening technology. Soon, “data mining” examinations for past indiscretions may occur at the borders of other countries. There are accounts of new technology being used at international airports; delays are being caused by the implementation of iris scan technology in England and the Netherlands. New biometric passports are being used in some parts of Europe, which are scanned by lasers to reveal computer-embedded data and security holograms. Heathrow Airport in the United Kingdom recently extended a pilot program that allows registered passengers to pass through immigration checks using iris scans. So far there is no evidence of this technology being connected to a system capable of performing background checks, but it may only be a matter of time before Big Brother really is watching, bringing a new meaning to the ancient truth that no matter how far we travel, we can never escape our past.
We are advised that the Canadian government is starting to realize that the policy of excluding tourists who have minor misdemeanor convictions does nothing to make Canada safer, and is causing a lot of lost revenue for the Canadian tourist industry. This policy is being reevaluated and may soon be changed.
Other Countries Which May Deny Entry
Certain countries evaluate Americans with convictions on a case-by-case basis, or at least purport to. The Malaysian Department of Immigration will deny entry to any foreigner who has been “convicted in any country or state of an offense and sentenced to imprisonment for any term, and has not received a free pardon and by reason of the circumstances connected with the conviction is deemed by the Director General to be an undesirable immigrant.”
Japan’s relevant statutory scheme somewhat ambiguously declares that the Japanese will not allow foreigners to visit who have been convicted and sentenced to imprisonment “with or without work for one year or more, or to an equivalent penalty.” This ban appears to include Americans who never went to prison, but rather served a custodial sentence of work furlough for one year, and it could be construed to apply to ban those sentenced to house arrest.
A couple of years ago, Martha Stewart had planned on speaking at the British Royal Academy regarding fashion and leisure industry matters, but was forced to cancel her trip when the United Kingdom Border Agency refused to grant her a visa to enter Great Britain due to her federal conviction for making a false statement to a federal investigator during an insider trading investigation (this is the case for which she served time in a prison camp and was then transferred to house arrest). A representative of the United Kingdom Border Agency would not comment on Stewart specifically, saying only that “we continue to oppose entry to the UK of individuals where we believe their presence in the United Kingdom is not conducive to the public good or where they have been found guilty of serious criminal offenses abroad.” The fact that the British think Martha Stewart poses a national security threat is further evidence that they are sissies.
Infamous rapper Snoop Dogg (who has a considerably longer rap sheet – no pun intended – than that of Martha Stewart) has been denied entry to both the U.K. and Australia. Snoop was denied future entry into the U.K. after he and his party vandalized a duty-free shop at Heathrow Airport by throwing whisky bottles. (He has had other airport troubles: in 2006, Snoop was detained at John Wayne Airport in Orange County, after airport screeners found a collapsible baton in his carry-on bag, and he was arrested at Bob Hope Airport in Burbank when he was found in the passenger loading zone in possession of marijuana and a firearm.) Snoop, of course, has had other gun and drug convictions, and he is affliliated with a Los Angeles gang. The Australians (perhaps reflecting upon the fact that they are descendants of convicts themselves) lifted their own ban against Snoop, stating that his charitable works outweigh his convictions.
Passports and Visas
Many countries do not require a visa for entry; a United States passport will suffice for most vacations. U.S. citizens who have suffered a felony conviction can generally receive and use a U.S. passport. However, it is possible that in a specific case, the terms of parole, probation or the judge’s order may deny the defendant a right to a passport or international travel. Often, defendants on supervised release for a pending federal criminal case will be required to turn over their passports. Historically, there is one type of felony that prevents a person from getting a passport: treason. If you’re convicted of treason, international travel is the least of your worries.
Even if you are in possession of a valid passport, it is not advisable to travel with an outstanding warrant, even if it is decades old and was issued for some silly technical mistake that you never cleared up. We have anecdotal evidence that cruise ships call in their passenger lists to customs when they come back to port in the United States, and if you have an outstanding warrant, a Zodiac full of Coast Guards in flak jackets are likely to board the ship and arrest you at gunpoint in the middle of dinner. When making arrests, certain law enforcement agencies, the DEA and U.S. Coast Guard included, have a policy to re-create scenes from Bruce Willis movies.
Non-Criminal Travel Restrictions
Some Middle Eastern or North African countries will not issue visas or allow entry if your passport indicates travel to Israel. Other countries apply the ban inconsistently, sometimes refusing and at other times allowing entry when a passport shows evidence of a trip to Israel. The policies of the countries in the Middle East and North Africa toward foreign visitors vary greatly. Some countries encourage tourism and put few restrictions on American visitors, while other countries do not allow tourism and carefully regulate all business travel. You cannot go to Afghanistan and some other war torn nations – leave that to Anderson Cooper and Christiane Amanpour.
In a number of Muslim countries, even those that allow tourist visas, a woman needs the permission of her husband, and children need the permission of their father to leave the country. If you travel or your children travel, be aware of the laws of the country you plan to visit. Once abroad, you are subject to the whims of whatever lawless country you are in.
Borders: Where Everyone Gets Treated Like a Criminal
One might think that a U.S. Customs agent would need some reasonable and articulable suspicion that a crime had occurred in order to review the personal files on a U.S. citizen’s laptop or cell phone, but that is not the state of the law. The Customs agent only needs a character trait for nosiness.
According to the recent Ninth Circuit case United States v. Arnold, 523 F.3d 941, the Fourth Amendment does not require government agents to have reasonable suspicion before searching laptops or other digital devices at the border, including at international airports. ICE agents are likely to use this opinion to argue that every property search at the border is constitutionally acceptable. The lower court previously ruled that today’s digital devices are an “extension of our own memory,” but the Ninth Circuit overturned that decision, and expanded the so-called border exception to the Fourth Amendment’s prohibition on unreasonable searches to apply not only to suitcases, but also to electronics. ICE agents can turn electronics on, search files and web histories, and open, read, and print out documents. The Arnold ruling did not, however, clarify whether a traveler has to help the government search his computer, so we advise that travelers should utilize password protection and even data encryption when forced to travel with a laptop full of confidential business files, or a Blackberry containing journal entries, financial information, and personal photographs. You may have caught a few tuna on your trip to Mexico, but it is when you come back across the border that the real fishing expedition will begin.
TRUSTED TRAVELER AND GLOBAL ENTRY
TSA and ICE have realized that they can save everybody a lot of time by letting certain travelers pass through airport security, as well as through customs on the return to the US of international flights, with little or no scrutiny. Background checks are an important part of the screening process for people who would like minimize the loss of time as well as the personal indignity that characterize the searches done by TSA ever since Muslim terrorists flew commercial US airliners into the World Trade Center on 9/11/2001, and then started targeting random commercial flights with suicide bombers (including the unsuccessful shoe bomber). Many people with minor convictions, or sometimes just arrests where no charges were filed, have had their applications to DHS for SENTRI passes or the GLOBAL ENTRY program denied. On the other hand, sometimes DHS approves these expedited entry passes for people who have convictions for DUI and other offenses. One thing to keep in mind when applying for these passes is never try to conceal a conviction. DHS is going to find the conviction, and will deny a pass that they might otherwise have authorized.
TRAVEL RESTRICTIONS IMPOSED BY CONDITIONS OF PROBATION OR PAROLE
While a person is under the supervision of the court during pretrial release, or on probation or parole, there are almost always strict travel restrictions, when the offense is a felony. In March of 2016, the Court of Appeal for the Sixth Appellate District, in California, decided the case of People v. Mario Lopez Soto. This case held that under the circumstances of that case, the probation condition requiring defendant not to change place of residence from Monterey County or leave the State of California without permission of the probation officer was invalid, because it was not supported by the specific facts of that case. The court ordered that this condition of probation be stricken. However, people on probation or parole should err on the side of compliance, because the results of revocation can be harsh.
UPDATE July 2017- We are aware of a recent case where a person disclosed a prior federal felony arrest (over 30 years previously), in which charges had been dismissed, discussed the arrest with a DHS interviewer, and was granted a Global Entry pass. On his next entry into the US, he tried to to use his new Global Entry status to get a entry pass at the airport kiosk, in front of the immigration lines. The screen on the kiosk told him to wait. He was then contacted by DHS officers who took him to secondary, and interrogated him about the same arrest that he had been interviewed on during the Global Entry screening interview. If DHS continues to do this, it will defeat the purpose of the Global Entry program. By the time his interrogation at secondary had finished, the passengers without Global Entry passes who had gone through the normal lines for Immigration and then Customs at the airport had long completed that process.