What type of lawyer do we need?
February 24, 2012 12:04 PM   Subscribe

My husband and I would like to be able to travel, but he has a felony conviction that makes things a bit complicated, and we're having trouble sorting out what options we have, what needs to be done, and in what order of operations. I would like to buy an hour or two of a lawyer's time, but I first need to know what kind of lawyer we need.

Five years ago (before we met) he stole a pack of cigarettes in a convenience store at gunpoint in a desperate attempt to commit suicide by cop. This was the bottom he hit after years of addiction and alcoholism. He was allowed to enter treatment in lieu of jail time and has been clean now for close to five years; he made restitution to the victim, he successfully completed parole, and his probation ends in March. He is now an employer and a responsible member in society. Addiction is a terrible thing, but he has come out the other side and sober he doesn't even bear a passing resemblance to the person he was when he was sick. His parole and probation officers have offered to testify to this effect on his behalf.

Part of the wreckage of his past, though, is this conviction for armed robbery.

We are in Canada. I have close family in the States. We would like to be able to visit them but the US has especially strong restrictions for those with felony convictions. The US requires an entry waiver and we're not clear whether he has to get a pardon first-- even though the US doesn't recognize Canadian pardons, would we need it to get the waiver? The pardon situation is pretty clear-- five years after his probation ends he can apply, and then it's two years after that for the pardon to go through. That's seven years from now. But we can't figure out if he needs a pardon to get the entry waiver. There are many companies that will complete the pardon process for a large fee but we can navigate that on our own, that's not the problem. It's the order of operations (what can we do before the pardon? What can't we do?) that we're struggling to find clear information on.

If he can't go into the States, we'll deal with that. But we would like to be able to leave Canada on occasion, and we are having difficulty sorting out whether he can apply for a passport renewal and then be able to travel (as long as there are no stopovers in the States) to countries where convictions aren't relevant (and we have made phone calls to various countries in the Caribbean, for example, and confirmed that certain ones don't take convictions into account upon entry). What we can't be certain about, though, is if he is issued a passport, will he get stopped by Canadian authorities upon departure or return? Another issue is that there may be long-term ramifications of being issued a passport before the pardon, and what information follows that passport and for how long.

We're both pretty good at Internet but there's not a great deal of concise legal information out there on the topic. So-- what is the name for the kind of lawyer we need to seek out for a consultation?
posted by anonymous to Law & Government (13 answers total)
I have a friend in a similar situation here in Canada. (They) haven't tried the pardon route yet. I can't speak to the US side of things, since (e) hasn't been able to go there (themself).
However (e) has been able to fly to Mexico and the Dominican for trips, and similarly had no problems travelling to Germany and Switzerland last year.
I believe (their) charge was intent to distribute /trees, no jailtime but parole/probation and community service.
Sorry I can't be of more practical help, but (e) doesn't like to talk about this much.
posted by smitt at 12:19 PM on February 24, 2012

I know someone who facilitates pardons and waivers. She says yes, you have to have a pardon to get a waiver into the States.

Your concern about getting stopped by Canadian authorities - if he has a passport, what are you thinking he will get stopped for? I don't understand that question.
posted by ThatCanadianGirl at 12:45 PM on February 24, 2012

Also, re your comment about there being no concise legal info on the topic. I would say there are a few reasons for that. First, much of it depends on who is working at customs that day and what sort of mood they are in when you get there. Second, it will depend on what's been in the news recently and what way the political winds are blowing. Finally, I think it's quite deliberate that the kind of information you are seeking remains fuzzy and hard to uncover. Governments tend to not want convicted armed robbers wandering back and forth across borders because it's hard to tell which ones have turned over new leaves and which ones are still bad criminals.

Also, try a lawyer who does customs and immigration work.
posted by ThatCanadianGirl at 12:55 PM on February 24, 2012

I didn't know we had felonies in Canada?

Was he convicted in the US or Canada?
posted by dripped at 3:40 PM on February 24, 2012

meaning - serious crimes aren't called felonies to my knowledge.
posted by dripped at 3:41 PM on February 24, 2012

You will need to get in touch with a US immigration law attorney.

Is your husband not a Canadian citizen? If he's a citizen, he can't be barred from coming back to Canada...where else could he go? If he's not a citizen, that's going to be a lot more complicated, and you should seek advice from a Canadian immigration lawyer as well.

And as dripped said, we don't have felonies in Canada. Canadian offences are summary, indictable, or hybrid (indictable by default, but the Crown can elect to prosecute the offence as summary).
posted by keep it under cover at 4:45 PM on February 24, 2012

If he's not a citizen, that's going to be a lot more complicated, and you should seek advice from a Canadian immigration lawyer as well.

I should add -- and this is NOT legal advice, just a plea to be careful -- that if your husband is not a Canadian citizen, he should not, under any circumstances leave Canada unless he has no intention of ever coming back, or you have gotten a solid okay from an experienced Canadian immigration lawyer. And meanwhile, be very careful not to let this get on Citizenship and Immigration Canada's radar, or he could be at risk for being deported.
posted by keep it under cover at 4:51 PM on February 24, 2012 [1 favorite]

Mod note: This is a followup from the asker.
To answer a couple of questions: the conviction was in Canada (he's a Canadian citizen) and yes, it is called an indictable offense here- and though I've got dual citizenship, I was raised in the States, and sometimes it shows. Apologies for any confusion.

As for what he might be stopped for either coming or going, I wasn't certain that he would or would not-- but we'd like to know all of the possible outcomes before deciding to make travel arrangements.

I don't think this falls under an immigration lawyer's area of expertise-- is there another type that I should be seeking out instead?
posted by cortex (staff) at 5:08 PM on February 24, 2012

I'm not sure why you wouldn't think this would be something for an immigration lawyer, perhaps you contacted one who only deals with corporate employment or something more specialized like that, but if not an immigration lawyer you would be looking for someone specializing in immigration and nationality law.

You might not find any lawyer who will be willing to provide a guarantee as to what will happen here, and I don't see that anyone could say what would happen at the border in advance, but if there are any problems with returning to Canada it will be helpful to have already established a relationship with a lawyer.
posted by yohko at 5:22 PM on February 24, 2012 [2 favorites]

Can you tell us why you don't think an immigration attorney is the right kind of attorney for the job?

I used to practice Canadian immigration law. We handled these types of cases all the time. We advised clients from all over the world with criminal records, everything from DUIs to multiple felonies. "Immigration" is actually a very narrow descriptor for the types of issues immigration lawyers have expertise in. It's more like, "Any time someone has a problem either getting into or staying in the country."

It's true that we sometimes worked in tandem with our clients' criminal defence lawyers, but their involvement usually ended with, "Here are copies of all the materials we have on file here." If the client didn't have a defence lawyer, we gathered copies of police reports, court dockets, state/federal records, criminal legislation, etc. ourselves.

I admit, I am not familiar with the particulars of US immigration law, but I don't believe it's so different that there's a whole other area of law to cover this issue. But why not call up a couple of immigration attorneys and see what they have to say? If they can't help you, they'll most likely be happy to give you a referral to someone who can.
posted by keep it under cover at 7:50 PM on February 24, 2012

I concur with keep it under cover. You want an immigration lawyer. The thing I'm not sure about is whether you want an American one or a Canadian one. Perhaps both? Consult your bar association in your province for starters.
posted by Happydaz at 8:10 PM on February 24, 2012

Immigration lawyer is who you call. Always, the best way to get a lawyer is to get a recommendation from another lawyer you know and trust.
posted by Ironmouth at 5:40 AM on February 25, 2012

You might want to get in touch with your local John Howard Society.
posted by what's her name at 9:21 AM on February 25, 2012

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