QUESTION: Four years ago, I received an absolute discharge in Ontario. I have crossed into the US numerous times since then with no problems, except being stopped and questioned once but ultimately being allowed to continue. Recently, I was arrested for "possession of a controlled substance," however, those charges are in the process of being withdrawn. Am I still eligible to travel to the United States once these charges are withdrawn? I have never been "convicted" of a crime. Please let me know.
REPLY: Thank you for your question. I cannot provide you with case-specific legal advice without first reviewing the documentation about the criminal matter, however, I have provided you with some information that should help you.
Criminal charges that have been withdrawn should not matter for U.S. immigration purposes. Only “convictions” as that term is defined under the U.S. Immigration and Nationality Act (INA) § 101(a)(48)(A), which states:
The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—
- a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
- the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.
Since withdrawn charges do not involve any finding of guilt, they are not “convictions” for immigration purposes and cannot be used to render you inadmissible to the U.S.
If you would like to submit additional information about your case and receive a complete professional analysis, please consider contacting my office to set up a consultation.