SCITECH TN VISA APPROVAL – AFTER PEACE BOND

Background

The applicant, a citizen of Canada, was previously subject to a peace bond. A peace bond is a court order issued under Canadian Criminal Code § 810 that sets out specific conditions to protect the safety of others or property. These instruments restrict an individual from certain activities and function much like temporary restraining orders in the U.S.

Analysis

Any time a foreign citizen is involved in a potential criminal matter, analysis must be undertaken to assure that the individual is not rendered inadmissible to the U.S. Under INA § 212 (a) (2), an individual is inadmissible to the U.S. due to a criminal matter if he has been convicted of, or admits to committing, a crime involving moral turpitude or a violation of a controlled substance law.

Solution

In support of this individual’s application for a TN, we prepared a legal brief showing that being subject to a peace bond may not result in inadmissibility under INA § 212 (a) (2). In order to be found inadmissible under this section, an individual’s criminal matter must have resulted in a “conviction.” A “conviction” may be found under the INA in two scenarios.

The first scenario that may qualify as a conviction for immigration purposes is “a formal judgment of guilt of the alien entered by a court.” The second scenario that may qualify as a conviction for immigration purposes occurs in instances where “adjudication of guilt has been withheld” and if the following two elements are met:

(i) A judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

(ii) The judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. INA § 101 (a) (48).

Our brief explained that the applicant’s prior subjection to a peace bond did not render him inadmissible to the U.S. under INA § 212 (a) (2) because the peace bond did not meet either definition of a conviction for U.S. immigration purposes.

The issuance of a peace bond did not meet the definition for a conviction under the first scenario because no formal judgment of guilt was entered by a court. A judge does not make a judgment of guilt to a criminal offense when he or she issues a peace bond. Peace bonds are issued to prevent criminal offenses from occurring. A criminal offense occurs only if an individual breaches a condition of a peace bond. We then included a copy of the applicant’s police background check to show that the peace bond expired without incident.

The issuance of a peace bond also did not meet the definition for a conviction under the second scenario because there was no withholding of guilt. No finding of guilt was made during the issuance of a peace bond. The applicant did not enter any pleas of guilty or nolo contendere, nor did he admit to any facts that would warrant a finding of guilt in the matter.

Inspection at Border

After lengthy review of the application materials, and the applicant’s court records, along with an interview of the applicant, the inspecting officer issued the TN.