Disagreement with immigration lawyer: seeking opinions

[JRob32]

My husband, and American and I just submitted his permanent residency application this month. We did majority of it ourselves, but I did go see an immigration lawyer twice to review our case and then review our final application before submitting it.

The only sticky part of our application is that my husband’s history is extremely unique and his background isn’t squeaky clean. He is a retired NBA player who comes from one of the most violent cities in America. He had a troubled youth before basketball helped get him on the right path toward a very rewarding career.

Long story short, he has a few things that pop up on his fbi background check - and one that does not which we opted to disclose in the interest of full transparency:

A “juvenile adjudication” from when he was 15 for sexual assault. Note according to the law this is NOT a criminal charge or conviction. He was charged and tried as a minor, hence the “juvenile adjudication”. If anyone were to ask him if he has a criminal record in relation to this charge, the correct and legal answer would be “no”.

He was arrested for possessing a small amount of marijuana in Texas in 1995 and paid a small fine. We disclosed this, but it does not show up on his record anywhere. We don’t know why.

He was arrested for a DUI in 2006 but was innocent of the accusation and the charge was dismissed in court, therefore this does not appear on his record as a conviction, only the arrest event.

In 2010, he was arrested and charged for possessing a small amount of marijuana. He pled guilty, paid a $600 fine and that was the end of it.

Now, technically speaking, my husband only has one conviction on his record as the one from 1995 does not appear to have been recorded. This charge will become “outdated in March 2020, and we understand a person is not admissible for one conviction on their record which would be equal to a summary conviction in Canada (and now with marijuana being legal, it may be even less of an issue?)

Our lawyer thinks we should apply to have my husband deemed criminally rehabilitated due to the juvenile adjudication on his record as a 16 year old. My argument is - how can we apply to have him “criminally rehabilitated” for an incident that is not considered to be a criminal charge in the first place, that happened when he was 16 in 1992?

We didn’t take the lawyers advice and submitted our application without applying to have him rehabilitated. I felt by doing so, we would be making him look guiltier than necessary and almost admitting to something that juvenile law in the US has protected him from.

Of course, I’m now worried about this whole thing and am curious if anyone has any thoughts or is aware of any case law they may be able to point me toward?

Thanks!

 

[phaeo]

I'd have a look at the instruction guide for the Criminal Rehabilitation application, there's a section about juvenile convictions:

Were you convicted as a juvenile?
In Canada, a young offender is someone who is 12 years of age or older but less than 18 years of age.

You are not inadmissible if you:

• were convicted in Canada under the Young Offenders Act or the Youth Criminal Justice Act, unless you received an adult sentence,
• were treated as a young offender in a country which has special provisions for young offenders, or
• were convicted in a country which does not have special provisions for young offenders but the circumstances of your conviction are such that you would not have received an adult sentence in Canada.

You are inadmissible if you:

• were convicted in adult court in a country that has special provisions for young offenders, or
• were convicted in a country which does not have special provisions for young offenders but the circumstances of your conviction are such that you would have been treated as an adult in Canada

It sounds like it won't make him inadmissible, but you guys will know the details of his conviction so can figure it out for sure. The page is here: https://www.canada.ca/en/immigration-refugees-citizenship/services/application/application-forms-guides/guide-5312-rehabilitation-persons-inadmissible-canada-past-criminal-activity.html

I don't think that applying for criminal rehabilitation will make you look guilty, it might in fact show that you're doing your due diligence (which it sounds like you've been trying to do in making sure you disclose everything). As you've already sent off your application, I'm not sure what you can do now. One of the more senior members here might have some more insight into this kind of situation, but you should probably start by reading the page about the rehabilitation process.

 

[JRob32]

Thanks for such a thoughtful and thorough response! I had a look at the information you provided, and he was “tried” as a minor in the USA under their juvenile system, so, according to this, it should be/won’t be an issue. Based on the law and the government’s guidelines as you’ve pointed out, I cannot for the life of me see why or how he would be inadmissible as the lawyer is suggesting.

As an adult, two arrests in 1995 and 2006, neither of which led to convictions, and just one conviction for marijuana in 2010 which was a fine-only punishment. Seems that the juvenile issue is a non-issue... really struggling to see where the issue would be according to the guidelines and corresponding law.

Thank you!

I'd have a look at the instruction guide for the Criminal Rehabilitation application, there's a section about juvenile convictions:

Were you convicted as a juvenile?
In Canada, a young offender is someone who is 12 years of age or older but less than 18 years of age.

You are not inadmissible if you:

• were convicted in Canada under the Young Offenders Act or the Youth Criminal Justice Act, unless you received an adult sentence,
• were treated as a young offender in a country which has special provisions for young offenders, or
• were convicted in a country which does not have special provisions for young offenders but the circumstances of your conviction are such that you would not have received an adult sentence in Canada.

You are inadmissible if you:

• were convicted in adult court in a country that has special provisions for young offenders, or
• were convicted in a country which does not have special provisions for young offenders but the circumstances of your conviction are such that you would have been treated as an adult in Canada

It sounds like it won't make him inadmissible, but you guys will know the details of his conviction so can figure it out for sure. The page is here: https://www.canada.ca/en/immigration-refugees-citizenship/services/application/application-forms-guides/guide-5312-rehabilitation-persons-inadmissible-canada-past-criminal-activity.html

I don't think that applying for criminal rehabilitation will make you look guilty, it might in fact show that you're doing your due diligence (which it sounds like you've been trying to do in making sure you disclose everything). As you've already sent off your application, I'm not sure what you can do now. One of the more senior members here might have some more insight into this kind of situation, but you should probably start by reading the page about the rehabilitation process.