Both Fraud Under $5000 and Fraud Over $5000 charges can cause you to be denied entry when attempting to travel to the USA

Will I be denied entry to the U.S. by Customs because I was charged with fraud under $5000 in Canada?

One of the first questions those charged with fraud under $5000 ask is whether it will prevent them from travelling to the USA in the future. Yes it can. Depending on the ultimate result of your case, and how the case was handled, Canadian fraud charges (both under and over $5000) can cause a person to be denied entry into the U.S. by Customs and Border Protection/Homeland Security.

The U.S. INA (Immigration and Nationality Act) defines fraud as a moral turpitude offence because it is considered a crime of dishonesty and deceit (aka an evil intent crime). If someone has admitted to or has been convicted of an offence of moral turpitude they may be deemed inadmissible to enter the U.S. by Customs. This includes tourists ranging from people taking day trips to snowbirds hoping to avoid the winter months, to those looking to work, live, invest in, or immigrate to the U.S. in the future.

Whether the fraud under $5000 charge results from a shoplifting related incident or involves an employee charged with fraud for stealing from their employer, all fraud charges both over and under $5000 are classified as moral turpitude offences by U.S. law. Even if someone is not ultimately convicted they could still be denied and banned from entry to the U.S. because the INA also states “or admits to” in terms of evaluating admissibility.

Someone said fraud under $5000 (shoplifting or theft from the workplace) is a summary offence and not an indictable one therefore it shouldn’t be a problem

The “someone” who told you that is wrong. Fraud Under $5000 in any form is a hybrid indictable (felony) offence. It is not a straight “summary” or “summary conviction” offence in Canada. When someone is charged with fraud under $5000, even if because they switched a $2 price tag, they are subject to indictable prosecution and up to 2 years in prison as a sentence.

There is a lot of misinformation about this issue that is sometimes being provided by people who work for the Government (Ontario or Federal) in Canada. The U.S. INA and the U.S. CBP Directives and Handbooks are extremely clear that all forms of fraud, including fraud under $5000, are moral turpitude offences. U.S. immigration law further states that if the maximum punishment is more than 1 year for the moral turpitude offence it is not subject to an exception. Since all forms of fraud under $5000 carry a maximum sentence of 2 years in prison they do not meet this exception.

Again, a person charged in Canada with any form of fraud does not have to be convicted under U.S. immigration law to be denied entry and possibly banned forever from entering the country. Just simply being charged could cause the accused to be denied entry as U.S. law clearly states “commits or admits to”.

It also doesn’t matter whether the accused serves a sentence of more than one year because the law is based on the maximum possible punishment itself. The maximum sentence for fraud under $5000 in Canada is 2 years in prison.

It also goes without saying that anyone who pleads guilty to fraud under $5000 also is admitting to the offence regardless of whether they ultimately receive an absolute or conditional discharge or a pardon/records suspension later. The U.S. does not recognize any of these dispositions because they do not exist in U.S. law.

This being said, fraud charges are not necessarily an absolute bar to entering the U.S. There are some things that a lawyer can try to do to help mitigate this and reduce the likelihood of encountering problems at the border.

Many of these proactive steps are time sensitive. The accused may be trying to research this far too late in the process. Perhaps they did not have a lawyer (represented themselves), and/or their case is already complete. There are things a criminal lawyer can try to do to reduce the likelihood of encountering problems at the U.S. border and being red flagged by U.S. Customs.

Once the case is completed the paperwork which may be asked for when trying to enter the U.S. is permanent.

If your case is already completed (whether withdrawn, discharged, suspended sentence, etc.), please consult a U.S. based immigration lawyer for advice. It is too late for us to help you. If your criminal fraud under or over $5000 case anywhere in Ontario, Canada is still before the courts (not yet complete) or you have just been charged, please give us a call immediately for a free quote and consultation.

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Are you a lawyer? If you are defending a fraud related case and are looking for expert advice regarding possible defences, case strategies, and information release management call us at: 647-228-5969.

Please note: We do not accept legal aid certificate cases. All clients are handled on a private retainer only.

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