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Misdemeanor

Printed From: Canada Immigration and Visa Discussion Forum
Category: Canada Visa / Temporary Entry Topics
Forum Name: Work Visa
Forum Description:
URL: https://secure.immigration.ca/forum/forum_posts.asp?TID=3606
Printed Date: 05 Dec 2019 at 10:51am


Topic: Misdemeanor
Posted By: hima3d
Subject: Misdemeanor
Date Posted: 04 Aug 2010 at 1:10am
Hi, I'm originally from the Middle East, and I have been to the US in a student visa to conduct my PhD, after that I was planning to move to Canada looking for a job and then final settlement.

Since 5 months ago, while I was in the US, I got convicted for a misdemeanor so I went to the jail(4 days in Jail- but I spent 2 days according to the US law), later on I started to find out the major consequences of what I did and its sub-sequences on my plans of immigration, I know that everything now started to be more complicated.

So my questions are; Am I still legible to apply for the citizenship? If not, is there any solution? Also if I got a job offer (University professor), Do you think this criminal offense will pop up on my background check although that was in US not Canada (I heard that US and Canada has the same Criminal check network)?

I really appreciate your help !!





Replies:
Posted By: dpenabill
Date Posted: 04 Aug 2010 at 9:19am
Not all misdemeanors in the U.S. are created equal. Some are very minor offenses. Some are fairly serious. One does not usually go to jail for a first offense misdemeanor unless it is a substantial offense, such as for driving while impaired (under the influence or a variation thereof), which is a misdemeanor in most states in the U.S. with many requiring a minimum mandatory two or four day actual in-jail sentence.

Thus it depends on just what the misdemeanor was . . . and, more to the point, it depends on what that offense would be if committed in Canada. If it is possibly an indictable offense in Canada, that will make you inadmissible . . . probably for a period of five years from the date you fully complete the sentence including termination of any period of probation. A driving while impaired charge would fit this category.

Unfortunately it does not help much if the offense is one which in Canada could be charged as either a summary offense or an indictable offense . . . such offenses committed abroad count as an indictable offense.

And yeah, little mistakes can loom so much larger than one appreciates . . . I reflect back on my youth and exhale deeply, whew -- make that WHEW!

The sooner you consult with a good criminal defense lawyer in the jurisdiction where it occurred, about possible expungement or dismissal, other recourse to reduce the charge for which a conviction actually shows, the better chance you have of getting it resolved in a manner that could take it out of the category of what renders a FN inadmissible to Canada.

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Bureaucracy is what bureaucracy does, or When in doubt, follow the instructions. Otherwise, follow the instructions.



BTW: Not an expert, not a Can. lawyer, never worked in immigration


Posted By: hima3d
Date Posted: 04 Aug 2010 at 11:16pm
First, I would like to thank you for your quick response on my post..

I would like to explain the situation further to you, I have some psychological disorders and Im being treated, and I have already a letter from my psychiatric explaining these issues, one of these issues is the impulsive of shoplifting.. So, I have been charged as I mentioned earlier, that was In state of VA, USA, almost 5 months ago.. 

I'm not sure if this misdemeanor considered minor or major, and Im not sure if there is any way that help me to get into Canada if I got a job offer?

Again Thanx alot for your help


Posted By: dpenabill
Date Posted: 05 Aug 2010 at 8:54am
Again, it really depends on the particular offense.

If you have not been convicted yet and this is a first offense, many, many states (not sure if VA is among them) have programs pursuant to which such charges can be dismissed resulting in no conviction . . . such as following a period of probation with conditions. If you have a VA lawyer, that is your best source of info regarding this. If you do not have a VA lawyer, it is probably very much worth your while to get one . . . even if at a fairly substantial expense. You really want to get this resolved on the best terms possible. And while it is not always the case, much of the time having your own lawyer in such proceedings can make a big difference in what kind of record you end up with.

I am no expert. And while I am very familiar with U.S. criminal law generally I am not much familiar with the laws of the State of Virginia particularly. And it really does depend.

First offense shoplifting, unless it involves more than shoplifting (say resisting arrest, use of force in fleeing, theft of a high value item or items, or such), ordinarily does not result in a jail sentence in the U.S. . . . so time in jail for it signals you may be dealing with something a little more serious than a simple one-offense theft . . . so, again, a VA lawyer is your best source of info about the severity and character of the specific charge itself and about what your best resolution can be . . . and helping you to get there.

Most states have a graduated misdemeanor system generally (typical, though the actual classifications vary, is a range, say Class C being very minor, Class B somewhat minor but including some significant offense, and Class A being a serious misdemeanor . . . could be Class III, Class II, and such or some other variation). Many (not sure if it is most) classify "thefts" in these ranges . . . although going up into the felony classes for certain kinds of thefts and for thefts involving larger values (what was, in the old days, called "grand theft"). And again, just knowing it is a misdemeanor does not really pin it down -- in some states, for example, mere speeding is a Class B misdemeanor even though it is a very minor offense, and drunk driving is also a Class B misdemeanor but is a fairly serious offense (for which one would be inadmissilbe to Canada for five years or so), and in between those two, shoplifting involving a value of less than a certain amount is also a Class B misdemeanor. So just knowing it is a misdemeanor really does not tell you what the consequences are for immigration to a country like Canada.

The other thing you need to know is what the comparable offense is in Canada. I do not know much about the actual classifications of offenses in Canada. I think a simple, low value shoplifting type offense, first offense, is what is called a "summary offense." But I am NOT at all sure about that AND whether that is the correct comparison to your charge I CANNOT say, I don't know. If the Canadian equivalent is indeed simply a "summary offense" and it is an only offense (different rule kicks in for multiple even if minor offenses), that will not render you inadmissible and thus should have a minimal impact on immigration (though it must be disclosed and would probably result in a higher level of scrutiny in terms of background and security checks).

Finally, there is some information as to "examples of criminal equivalents" for purposes of comparing a foreign criminal charge to what that charge would be in Canada in the following operational manual:
ENF 2 Evaluating Inadmissibility . . . see appendix A
the url for the pdf of this manual is:
http://www.cic.gc.ca/english/resources/manuals/enf/enf02-eng.pdf



-------------
Bureaucracy is what bureaucracy does, or When in doubt, follow the instructions. Otherwise, follow the instructions.



BTW: Not an expert, not a Can. lawyer, never worked in immigration


Posted By: pmm
Date Posted: 05 Aug 2010 at 3:33pm
Hi

Originally posted by dpenabill dpenabill wrote:

Again, it really depends on the particular offense.

If you have not been convicted yet and this is a first offense, many, many states (not sure if VA is among them) have programs pursuant to which such charges can be dismissed resulting in no conviction . . . such as following a period of probation with conditions. If you have a VA lawyer, that is your best source of info regarding this. If you do not have a VA lawyer, it is probably very much worth your while to get one . . . even if at a fairly substantial expense. You really want to get this resolved on the best terms possible. And while it is not always the case, much of the time having your own lawyer in such proceedings can make a big difference in what kind of record you end up with.

I am no expert. And while I am very familiar with U.S. criminal law generally I am not much familiar with the laws of the State of Virginia particularly. And it really does depend.

First offense shoplifting, unless it involves more than shoplifting (say resisting arrest, use of force in fleeing, theft of a high value item or items, or such), ordinarily does not result in a jail sentence in the U.S. . . . so time in jail for it signals you may be dealing with something a little more serious than a simple one-offense theft . . . so, again, a VA lawyer is your best source of info about the severity and character of the specific charge itself and about what your best resolution can be . . . and helping you to get there.

Most states have a graduated misdemeanor system generally (typical, though the actual classifications vary, is a range, say Class C being very minor, Class B somewhat minor but including some significant offense, and Class A being a serious misdemeanor . . . could be Class III, Class II, and such or some other variation). Many (not sure if it is most) classify "thefts" in these ranges . . . although going up into the felony classes for certain kinds of thefts and for thefts involving larger values (what was, in the old days, called "grand theft"). And again, just knowing it is a misdemeanor does not really pin it down -- in some states, for example, mere speeding is a Class B misdemeanor even though it is a very minor offense, and drunk driving is also a Class B misdemeanor but is a fairly serious offense (for which one would be inadmissilbe to Canada for five years or so), and in between those two, shoplifting involving a value of less than a certain amount is also a Class B misdemeanor. So just knowing it is a misdemeanor really does not tell you what the consequences are for immigration to a country like Canada.

The other thing you need to know is what the comparable offense is in Canada. I do not know much about the actual classifications of offenses in Canada. I think a simple, low value shoplifting type offense, first offense, is what is called a "summary offense." But I am NOT at all sure about that AND whether that is the correct comparison to your charge I CANNOT say, I don't know. If the Canadian equivalent is indeed simply a "summary offense" and it is an only offense (different rule kicks in for multiple even if minor offenses), that will not render you inadmissible and thus should have a minimal impact on immigration (though it must be disclosed and would probably result in a higher level of scrutiny in terms of background and security checks).

Finally, there is some information as to "examples of criminal equivalents" for purposes of comparing a foreign criminal charge to what that charge would be in Canada in the following operational manual:
ENF 2 Evaluating Inadmissibility . . . see appendix A
the url for the pdf of this manual is:
http://www.cic.gc.ca/english/resources/manuals/enf/enf02-eng.pdf



If the value of the goods are less than $5K then it is a summary offence, if over $5K dual offence.

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PMM


Posted By: hima3d
Date Posted: 05 Aug 2010 at 8:10pm
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I really appreciate your valuable time and effort trying to help me out..

FYI,   VA has some of the toughest shoplifting laws in the states, In my first trial I didn’t accept the offer and  I tried to plead not guilty in my first trail but the judge gave me 90 days in jail for a box of perfume costs like $75. I got really shocked, then my lawyer tried to make a deal with the DA, to turn back to the first deal of accepting 2 days in jail and I ended up with that.

As you mentioned earlier, dpenabill, I got understand that the little “whew” turned to be a big WHEW, I completely admit that I’m mistaken, and I really hope that nobody go for it.

My questions are:

Is there any way to get into Canada before 5 years of my sentence? And If I have any papers to proof that incident happened under a major depression and psychological pressure does this matter?

Also, If I got a job in Canada, even after 5 years, do u think this incident will pop up in my criminal record?

Again, Thanks alot

 

 

 

 



Posted By: dpenabill
Date Posted: 05 Aug 2010 at 9:19pm
I have told you pretty much everything I have to offer . . . hard to imagine that Virginia is that tough on first offense shoplifting (stores in many states complain that they cannot get law enforcement and prosecutors to even prosecute shoplifting cases these days) but . . . well, as I said, I do not know Virginia law much and a Virginia lawyer certainly knows far far more.

Unfortunately, in looking at the Canadian criminal code, it looks like a theft conviction will indeed render you inadmissible for five years.

While, as I said, I am not that familiar with how the Canadian criminal system works, I read the statute differently than PMM:
Quote If the value of the goods are less than $5K then it is a summary offence, if over $5K dual offence.

The applicable statute in the Canadian criminal code is section 334, which says that if the value was greater than five thousand dollars, it is "an indictable offence . . . " (punishable by a term not exceeding ten years), and where the value of what is stolen does not exceed five thousand dollars it is either an indictable offense or an offense punishable on summary conviction . . . for immigration purposes, unfortunately, if an offense committed in a foreign jurisdiction is one which, if committed in Canada, can be prosecuted either as an indictable offense or as a summary offense (which is how I read 334 for theft), then for immigration purposes it is considered an indictable offense. That means the FN is then inadmissible for five years from the date the sentence was fully completed, as in any probation is also fully completed.

As for the criminal record . . . foremost, it depends again on the laws of Virginia. Some states have relatively lenient expungement programs . . . after a period of time a person with a perfect record can get a minor offense expunged from their record . . . other states have tough expungement laws (to the point of virtually making expungement unavailable except in cases of proven innocence) . . . if it can be expunged, it is off one's record for most purposes (not all).

Time mostly mitigates the significance of the conviction. Time does go by. I have acquaintances in the States (I did practice criminal defense law in a U.S. state quite some time ago -- it was no fun) who had fairly serious offenses in their younger days . . . some did real prison time . . . who are good citizens these days, with families, with jobs, some with jobs in government, almost as if those off the track days never happened. Takes time. Time will pass. One just starts to rebuild their life on the better track from today going forward. But yeah, mistakes do bear consequences. Stay on the up side of the street going forward and you should do OK. This will all be behind you. In the meantime you just have to deal with what is done and make the best of things.

Just for reference, the Canadian criminal code provision:
Quote 334. Except where otherwise provided by
law, every one who commits theft
(a) is guilty of an indictable offence and liable
to imprisonment for a term not exceeding
ten years, where the property stolen is a
testamentary instrument or the value of what
is stolen exceeds five thousand dollars; or
(b) is guilty
(i) of an indictable offence and is liable to
imprisonment for a term not exceeding
two years, or
(ii) of an offence punishable on summary
conviction,
where the value of what is stolen does not
exceed five thousand dollars.


My reading of that is that (a) applies to more than five thousand, and (b) to less than five thousand, that is, (a) is an indictable offense, and (b) can be prosecuted as either an indictable offense or as a summary offense, which again for immigration purposes (as I understand it) means it is treated as if an indictable offense.

-------------
Bureaucracy is what bureaucracy does, or When in doubt, follow the instructions. Otherwise, follow the instructions.



BTW: Not an expert, not a Can. lawyer, never worked in immigration


Posted By: indulgent.merciful
Date Posted: 11 Jan 2018 at 12:38pm

Hi,

I was arrested in sept 2015 and convicted in nov 2016.

 Crime : I called Police because my wife was abusive to me and my wife+her mother lied and witnessed against me to put in trouble to control my immigration in USA. After that she troubled my immigration and we had a messy divorce.

 Conviction : Class C misdemeanor, 500 $ fine , No jail term

Charge was : assault by contact.

 Can I apply Canada temp visitor visa

can i apply express entry program to get PR.

 waiting your reply

 




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