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How to study in Canada with an arrest on your record?
March 30, 2014 10:44 PM   Subscribe

My partner and I are moving to Canada to get our PhDs and so we have to apply for study permits (we're US citizens). The application asks if you've been arrested, and my partner has been once. How do we explain the arrest on the application, how do we ensure his study permit isn't denied because of this? Is there anything special we should include?

We're both applying for the study permits online. He has already sent away to the FBI for his records, following the instructions he was given online when he answered that he had been arrested.

There was no conviction, it was an ACD which is an Adjournment In Contemplation of Dismissal. This means that after 6 months, the charges were dismissed and the record expunged. It was part of the NYPD's entrapment practice called "operation lucky bag" where they put wallets and purses in public places and then arrested the people who picked them up, assuming that those people weren't going to return them. It was a misdemeanor theft charge. There was actually a class action lawsuit about it because it was such a sleazy thing, like stop and frisk - but that's another story.

So, I assume that on his study permit application he needs to answer that yes, he was arrested, even though in the state of new york he is legally allowed to say he has not been arrested. I understand that arrests show up for national security level searches even when they're expunged. But we're just struggling with how to determine whether we need an immigration lawyer, whether he should just apply and explain, how you go about getting a record of a non-conviction? So many things are confusing about this...


(Here's the text about what the ACD means from N.Y. Criminal Procedure Law 150.55(8):

"The granting of an adjournment in contemplation of dismissal shall not be deemed to be a conviction or an admission of guilt."
The law further provides: "No person shall suffer any disability or forfeiture as a result of such an order. Upon the dismissal of the accusatory instrument pursuant to this section, the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution." )
posted by jardinier to Law & Government (9 answers total)
 
Consult an immigration attorney with expertise in Canadian immigration. Ideally a Canadian one.
posted by Mad_Carew at 11:06 PM on March 30 [5 favorites]


As someone who deals with this kind of stuff professionally, I second the above unless a Canadian study permit/visa adjudicator pops into this thread. Anything else will be just (potentially dangerous) hearsay.
posted by whitewall at 5:17 AM on March 31


Contact the Office for International Students at the university you plan on attending. They, no doubt, have some experience with international students filling out paperwork who have questions like this. And, they, if necessary, will likely be able to refer you to a Canadian immigration attorney.
posted by Pineapplicious at 7:55 AM on March 31


The International Students office at the university says they can't be involved in immigration matters (even simple questions about how to fill out my form). We've talked to one immigration attorney, and they wanted $6000. That's 1/3 the annual income he'll have as a student, and just isn't an option (we don't have the ability to pay that). Still looking, but I posted here as there have been previous forums where people who worked for CIC had chimed in and that's what I'm hoping for - that or someone who has been through this. So, I get that the answer is "consult a lawyer" - but yeah.
posted by jardinier at 8:28 AM on March 31


I volunteer for a group that assists with to-US immigration. Our clients are, obviously, mostly Central and South Americans who want US citizenship. However, we are chock-ful-O-lawyers doing pro bono.

Perhaps you can find a similar organization
for the Canada-bound and connect with an attorney who has seen your situation before and can advise.
posted by Lesser Shrew at 8:54 AM on March 31


I worked for CIC and CBSA but big caveat, IANYour visa adjudicator, this is not official immigration advice, and the reasoning and decision on any visa application lies with the specific adjudicator working on your application.

As a general rule in (at least, Canadian) immigration, if anything is unusual in an application, you can absolutely write "please see additional pages" as your answer and add supplemental pages to the application forms to explain your situation.

This is what I would do if I were you and this was my own application:

I would absolutely declare that the arrest happened, either by ticking the box or writing "please see additional pages" in response to that question*. Then on that additional page, write an explanation of what happened - essentially your description of events provided in this question, that it was part of NYPD's "operation lucky bag" and what that means, that there was no conviction, record expunged etc etc.

I would include the definition of ACD from N.Y. Criminal Procedure Law 150.55(8).

it was an ACD which is an Adjournment In Contemplation of Dismissal. This means that after 6 months, the charges were dismissed and the record expunged

Did your partner receive any official documents notifying him of this decision? Letter from NYPD? If so, copy those and include them in your packet.

There was actually a class action lawsuit about it because it was such a sleazy thing, like stop and frisk - but that's another story.

I would actually mention that there is a class action lawsuit in your explanation (since it speaks to the legality of the operation that led to the ACD in the first place). Print out a newspaper article or two (legit sources please!) about the lawsuit and include that in your attached pages.

Ideally your explanation would incorporate references to the supplemental materials eg. "the result was Adjournment in Contemplation of Dismissal (please see attached definition from NY Criminal Procedure Law...) etc.

---

Without knowing the rest of your partner's immigration history/ case and based solely on information in this askme question, my opinion is that it is unlikely that the study permit will be denied based solely on this specific arrest.

*DO NOT LIE including lies by omission! It is a significantly larger and more permanent headache if you are found to have lied in an application and can set you up for long term immigration difficulties. You are always much better off answering a question with "please see additional info" basically communicating that you don't know if this counts so you'll share information about the situation anyway.
posted by kitkatcathy at 10:36 AM on March 31 [2 favorites]


Thank you. This is how we'll approach it. He's getting the NY State records, and the final disposition from the court, and as many other documents as we can and we'll do as you suggest and include it all.

We have no other record or immigration history of any kind. Both US Citizens, and have offers of fully funded PhD programs. Because we're US Citizens, and aren't bringing family we are doing the online applications as separate individuals (we have no legal relationship in the US or elsewhere). I assume it's ok to just add the extra information as additional pages to the PDF we upload?
posted by jardinier at 10:44 AM on March 31


I've personally not worked with the online application but I did a quick search on the CIC site and it looks like the online visa application has an "Add letter of explanation" field for you to upload information that is supplemental to the application itself:

It is important to include all the necessary information when you submit your application the first time. You can provide more information in the "Add letter of explanation" row when you are uploading your documents.
posted by kitkatcathy at 10:52 AM on March 31 [1 favorite]


Resolution: We ended up hiring a Canadian immigration lawyer to get an official opinion on the case. He advised my partner to include a copy of his FBI file and explain the incident on the application. We submitted the application online and received the study permit approval letter. So, it would appear that they had no issue with the single arrest in New York State for the 'lucky bag' operation. The study permit is actually granted at the border, so there is still that 'hurdle' but the approval letter, which we both now have, is supposed to make that process easier.

It also turned out that on his FBI report, there is no arrest shown, despite the fact that an arrest shows up in New York state. Perhaps because of the ACD? Not sure. Thanks again to all for the advice and help!
posted by jardinier at 10:58 PM on August 1


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