By Randall Cohn

Getting (and interpreting) US criminal records tin can be surprisingly difficult

If you lot are a foreign national applying to live, study, or work in Canada, you will likely be asked to provide 'police certificates' from countries in which you take lived prior to making your awarding. These records help the authorities to decide whether an applicant is inadmissible to Canada for reasons related to previous criminality. In almost instances, these are relatively straightforward documents that can exist requested from a consulate or a central criminal records office either past an bidder or direct by Clearing Refugee and Citizenship Canada (IRCC). Getting the necessary documents from the United states, however, tin can be surprisingly difficult.

This is primarily because — dissimilar in Canada, where criminal law is legislated and enforced by the federal government – about criminal law in the U.S. is nether the purview of the individual states. The Federal Bureau of Investigation (FBI) coordinates a national database of arrests and convictions, but that database is only as good as the information that is reported to information technology from the various criminal jurisdictions, and it is notoriously incomplete.

To become an authentic motion-picture show of a person's criminal record, therefore, IRCC will often crave applicants who have lived in the U.Due south. (or who take been arrested or charged with a crime while visiting the U.S.) to submit a document from the FBI and from each of the individual states where they lived or had encounters with the law. Each state has its own record-keeping system and its own protocols for accessing the records. That creates inefficiencies and sows defoliation.

In improver, U.S. criminal records are often inaccurate or full of apparent contradictions, and they can be difficult to interpret. It is ofttimes necessary to brand additional inquiries to the courts or to law enforcement agencies themselves to recover records that conclusively evidence the outcome of a particular charge. As a outcome, many applications that are otherwise set to be processed are delayed for weeks or months while applicants work to assemble criminal records.

To avoid this kind of delay, I always propose my clients that requesting police certificates is the very first thing they should do when starting time to gear up an application. Hither are some tips about how to navigate the process and some links to resource that I have institute helpful.

Requesting an Identity History Summary ('Rap Canvas') from the FBI

The FBI offers 3 ways to request a re-create of your 'rap sheet'. While this is intended to make the process convenient and accessible to a wide range of people, each choice has its own pitfalls – and the choices can be disruptive. Keep in mind that you must submit your fingerprints to the FBI to consummate a request. If you have submitted an awarding, whether online or by mail, and y'all oasis't been fingerprinted, then your awarding is not consummate.

Option one: Apply online through eDO and submit fingerprints at the post function (available in the The states only)

This relatively new online process is the fastest and easiest method, provided that (i) the system is working at any given fourth dimension; and (ii) you are able to travel to ane of a limited number of USPS locations that offering fingerprinting services. As it stands right at present, the website is down at least equally often as it is working, and the participating mail service offices are disappointingly amassed effectually major metropolitan areas.

I am hopeful that the organization volition go more reliable in the coming months or years, only the federal authorities of the Usa has not historically been very nimble at solving IT bug, so I'm not belongings my jiff. If y'all choose to utilize eDO, brand sure that you get a clear confirmation that your request has been successfully submitted.

Option 2 : Utilise an approved FBI Channeler

Channelers are private companies that are licensed by the FBI to collect fingerprints and other biometric data. For a fee, they will collect your fingerprints and all of the information necessary to brand a asking, and will ensure that it is submitted correctly. Many channelers use a LiveScan digital fingerprint collection process, and tin can deliver a preliminary written report inside minutes. This service is but available to U.s.a. citizens and permanent residents.

The FBI's list of canonical channelers simply lists names of companies in alphabetical order, and information technology is not especially intuitive to use that list to detect a channeler close to you lot. My clients have had success but searching 'FBI Channeler' and their location in a popular net search engine. In some states, FBI channelers are also contracted to provide fingerprints for country records searches.

Whenever possible, I recommend that my clients apply channelers. Doing and then removes some uncertainty from a stressful process, and the fees are usually small, relative to the full cost of most immigration-related applications.

Option three: Request via mail and submit a fingerprint menu

If you lot are unable to arrive to a channeler or participating mail office, you can download a asking course and a manual fingerprint card, and submit them past mail to the FBI.

In major cities in Canada and in many other countries, there are individual agencies that volition assistance you lot record fingerprints and submit the asking on your behalf. Take intendance to make certain that anyone offering this service is credible before giving them your fingerprints or identifying information. If you make full out the forms yourself, follow the FBI's guidance on recording legible fingerprints, and refer to the checklist to ensure that you are including all of the required information and the advisable fee.

This pick takes the longest to process, and the FBI frequently rejects post-in applications because of poor-quality fingerprint samples. Nonetheless, for many people – particularly those who are making their asking from outside the The states – it is the only practical option.

Requesting state law certificates

Each state has its ain record-keeping system, and its ain process for requesting access to the records. Some states provide clear instructions that can be found hands using an internet search engine. Some states, nevertheless, seem virtually to be hiding the instructions or making them deliberately confusing in club to discourage requests.

Cornell University has nerveless information almost how to request records from nearly (but, as of this writing, not all) of the states and compiled it here every bit a public service. Note, withal, that this list is intended to assistance people seeking employment-related groundwork checks, and in some states (e.g. California), the process is different when seeking a record for clearing purposes.

I offer the following general advice to all of my clients who are requesting state records:

  • Make sure that y'all are requesting records from the statewide criminal record system, and not from a particular commune court or police precinct. In some districts that include major cities with large populations, at that place are streamlined (and on-line) awarding processes available for local records, and it is non always like shooting fish in a barrel to tell from the website whether you are searching at the county level, for example, rather than the country level. (Y'all may want to follow upward for detailed records from the courts or police precincts later on, but your first request should exist from the country).
  • Some states offer several different types of records. Always request the near comprehensive, and virtually official version available. In Washington, for example, yous can request records online and receive the results immediately, or you tin can asking a full background check by submitting a form, with or without fingerprints, either by postal service or in person. The instant, online search costs The states$11. The total (proper name-based) record check without fingerprints costs The states$32. The fingerprint-based version costs US$58. To get the results fully certified by a notary, it costs an additional US$10. You want the notarized record from a fingerprint-based search, for a total cost of United states of america$68. If you choose ane of the cheaper or more than user-friendly versions, you run a meaning run a risk that your application will be delayed or rejected until you lot can provide the deluxe record.
  • At least ane state (Arizona) refuses to provide certified police force records for the purposes of foreign immigration. IRCC knows this and won't penalize yous for not including a state record. Exercise not misrepresent the purpose of your request in society to obtain a tape. Instead, request an official alphabetic character from the state showing that you take made the request and the asking has been denied. (Arizona provides these letters as a matter of course, and provides a number to telephone call to make a asking on the website linked above.)
  • Some states (e.thousand. California, Florida, New Bailiwick of jersey, and New York) contract with private agencies to provide LiveScan fingerprint processing. Many, but not all, of these service providers are also FBI channelers. It can save y'all time and endeavor to check before making a fingerprinting appointment to run into if yous can get state and federal requests taken care of at the same time.

Interpreting your records

If you accept never been arrested or charged with a criminal offense in the The states, the results of these requests should be unambiguous: the state and federal agencies will simply deliver letters certifying that a search was conducted and no information was returned.

If you have had any contact at all with Usa police enforcement, however, don't assume that the records are accurate – or that Canadian government know how to read them. This is especially true if:

  • You were arrested or detained by law enforcement but never formally charged with a crime;
  • You were charged with a offense, simply the charges were dropped past the prosecution or yous were acquitted at trial;
  • You benefitted from a diversion program or a resolution that immune yous to avoid conviction or execution of a judgement based on the satisfaction of weather imposed by the court;
  • You lot were involved in a plea agreement in which you lot pleaded guilty to different crimes than those for which you were originally charged; or
  • You were transferred to immigration detention and removed from the United states prior to resolution of the criminal matter.

Police records generally track arrests, convictions, and sentences. In the current US criminal justice system, nonetheless, it is very rare for a person to be arrested, charged, convicted, and sentenced for the same crime. The police are required to note the 'probable cause' for an arrest, but it is upward to the prosecuting authority to decide what charges to actually include in an indictment, and prosecutors often include charges that they would never be able to evidence at trial in gild to force per unit area a defendant to plead guilty to a bottom charge. Information technology is as well common for plea bargains to include complex resolutions in which a accused pleas to the elements of a more than serious crime, but the conviction is downgraded or vacated altogether upon successful completion of probation or other atmospheric condition.

Most of these adjustments will show upwardly in comprehensive courtroom records if y'all know how to look for them, simply they are not clearly discernable from the limited information that is included in law records. The issue is a criminal record arrangement full of charges listed without specific resolutions, which fifty-fifty Us lawyers and judges frequently struggle to interpret precisely.

This can be consequential for your Canadian clearing application. Only sure kinds of convictions and certain kinds of sentences volition impact your admissibility to Canada, and some kinds of inadmissibility are easier to overcome than others. The Canadian clearing regime who are charged with interpreting the records can just work from what is presented to them, and – like all responsible law enforcement officers – they will tend towards the nearly conservative estimation when they are confronted with ambiguous data.

It is up to you, therefore, to provide additional data and documents that clear upwards the ambiguity. To practise that, information technology is beginning important that y'all understand what happened. If you aren't certain, you tin:

  • Talk to the lawyer who represented yous in criminal court. Lawyers – whether they are public defenders or private counsel — are required to go along records and to share those records with you if you ask them to.
  • Request court documents directly from the court clerk. The courts should have detailed records of every charge, conviction and sentence brought before them. Most of these records are publicly bachelor, and fifty-fifty when they are not public, you lot take a right to the full tape of proceedings in which you were the defendant. Clerks are frequently overworked, so it's best to exist polite – and every bit specific equally possible – when requesting documents.
  • Hire a lawyer who is qualified to assistance you lot learn the right documents and interpret them for the Canadian authorities. IRCC and CBSA officers are (commonly) happy to take a roadmap to assist them understand what they are looking at so that they can come to the correct legal conclusion about your admissibility. Where in that location is any dubiety, it tin be helpful to hire a United states lawyer who is experienced at reading and interpreting US criminal records to write an opinion letter that carefully explains the final disposition of all charges that are listed in the constabulary records.

Lesser line: take this seriously to avert bad decisions and/or costly delays

Immigration applications tin be overwhelming and, particularly if you are seeking refuge from danger or trying to proceed your family together, the stakes tin be very high. With so many documents to gather and forms to submit, it can be tempting to let your guard downwards, take the path of least resistance, and hope for the best. If yous don't send the correct records with your initial application, withal, it will delay processing.

If yous have an arrest tape in the United States, that record is going to get an issue at some signal during your immigration process, even if you were never convicted. In many instances, criminal inadmissibility can exist overcome, but y'all will significantly improve your chances if yous understand your own tape, and are prepared to interpret it and put information technology in context for the Canadian authorities.

The Us criminal records organisation is confusing. With some care, and with the advice of skilful counsel, you can take command of this procedure.

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Randall Cohn is licensed to exercise in British Columbia and in the United states of america states of Washington and Minnesota. Earlier moving to Canada, he was a criminal defence lawyer at the Hennepin Canton Office of the Public Defender in Minneapolis.