Learning Center
Plans & pricing Sign in
Sign Out

Beyond the Conviction - Washington Defender Association



Beyond the Conviction was written by Kim Ambrose, WDA resource attorney. Christie
Hedman, director of the Washington Defender Association, edited the manual with
assistance from program administrator Sarah Yatsko, who also supervised production. This
manual was updated in 2010 by Sascha Sprinkle and Travis Stearns.

The following persons and organizations have contributed “collaterally” in the compilation
of this booklet and deserve thanks and recognition:

Hong Tran, Staff Attorney, Northwest Justice Project
McGregor Smyth, Director, Civil Action Project, Bronx Defenders
Debbie Mukamal, Director, National H.I.R.E. Network
Mark Dalton, Administrator, Department of Social and Health Services
Tracy Sarich, Legal Intern
ACLU of Washington

This project was supported by a grant from the Bureau of Justice Programs, U.S. Department
of Justice. The Assistant Attorney General, Office of Justice Programs, coordinates the activities
of the following program offices and bureaus: Bureau of Justice Assistance, Bureau of Justice
Statistics, National Institute of Justice, Office of Juvenile Justice and Delinquency Prevention,
and the Office for Victims of Crime. Points of view or opinions contained within this document
do not necessarily represent the official position or policies of the U.S. Department of Justice.

Table of Contents:

I. Criminal History Records ...................................................................................... 4
II.   Immigration ............................................................................................................ 7
III. Legal Financial Obligations .............................................................................. 9
IV.   Employment ........................................................................................................ 12
V. Housing ...................................................................................................................... 15
VI. Public Benefits .................................................................................................... 19
VII. Family Issues ....................................................................................................... 21
VIII.   Driving ............................................................................................................... 23
IX. Right to Possess Firearms.............................................................................. 25
X. Voting and Jury Duty ............................................................................................ 27
XI. Federal Student Loans..................................................................................... 28
XII. Military Service .................................................................................................. 29
XIII.   Traveling to Canada...................................................................................... 30
Beyond the Conviction:
  What Defense Attorneys Need to Know about Collateral
and Other Non-confinement Consequences of Criminal
“In this brave new world, punishment for the original offense is no longer enough; one’s debt to
society is never paid.”
                              - Jeremy Travis,
                                 Invisible Punishment: The Collateral
                                 Consequences of Mass Imprisonment

Introduction (2010 Edition)

In 2010, the United States Supreme Court issued Kentucky v. Padilla, which held that
attorneys had an affirmative duty to advise their non-citizen clients of the immigration
consequences of their convictions. In this opinion, Justice Stevens wrote that the court had
never recognized the collateral consequences doctrine and instead held that where the
consequence of the conviction was an “integral part of the conviction”, that the attorney had
an obligation to their client to provide affirmative information about the consequence.

It is unclear whether Padilla will be extended beyond immigration consequences, but the
court clearly left the option open. With this in mind, we have updated all of the information
in this book so that practicing attorneys can have the most current information possible
about the consequences of a conviction. Keep in mind that this information is always
changing and that after you have referenced this book, it is a good idea to follow that up
with more thorough research.

Who is this Booklet for?

The information in this booklet is intended for use by public defense attorneys in
Washington State. It is not comprehensive. It is meant as a starting point for defenders to
understand the hidden penalties clients may face after conviction. Defendants should
understand potential civil and other consequences of a criminal conviction before they
plead guilty.

This booklet also is for other criminal justice professionals, social service providers,
community members or anyone who is concerned about the vast array of non-confinement
penalties which follow persons with criminal convictions.

For a more detailed discussion of consequences of convictions in Washington, see
Consequences of Criminal Convictions in Washington, available to WDA members and on-line
I. Criminal History Records
Criminal history, which is easily accessible to the general public, is a significant
consequence of a criminal conviction. Criminal history record information is maintained
centrally in Washington State through the

                                   Washington State Patrol
                         Identification and Criminal History Section
                            3000 Pacific Avenue, PO Box 42633
                             Olympia, Washington 98504-2633
                                       (360) 705-5100

Accessible: Criminal conviction and arrest information is readily available to the public via
the internet. For a small fee, anyone - employers, landlords,
potential love interests, etc. - may access any individual’s criminal conviction record,
including arrests under one year old and pending charges.1 Certain agencies have free
access to criminal history information, e.g., criminal justice agencies and DSHS.2

Correctible: WSP has a process for correcting criminal history which may be inaccurately
recorded/reported through filing forms with the Washington State Patrol Identification and
Criminal History Section in Olympia, Washington.3

Vacating or Sealing records: In some cases, an individual may be able to get a conviction,
favorable disposition, or arrest vacated, sealed, or expunged from his or her record. There
are various requirements for each of these, and getting part of a record sealed, vacated, or
expunged doesn’t mean that it disappears completely.
     Vacate: An individual whose conviction has been vacated may state for all purposes
        that he or she has not been convicted of that crime. When a conviction is vacated,
        the court file is not destroyed and it may be used in a later criminal prosecution.
     Seal: Sealing a court record may be ordered when a conviction has been vacated or
        when the court finds that “compelling privacy or safety concerns outweigh the
        public interest in access to the record”4
     Expunge: To expunge means to physically destroy information. Convictions can
        never be expunged.

Certain convictions may be vacated or sealed by filing a Motion to Vacate/Seal with the
court that entered the conviction:

Adult Felony convictions after July 1, 1984, may be sealed if the following criteria are
    Nonviolent, non-sex offenses that are not crimes against persons only;
    A Felonies cannot be sealed;

1 RCW 10.97.050, available at
2 RCW 10.97, 100, available at
3 RCW 43.43.730; RCW 10.97.080.
4 A Guide on When and How to Challenge, Seal, Vacate or Expunge, 2009, available at
5 RCW 9.94A.640
         B Felonies: crime free for 10 years after completion of all sentencing requirements
          and certificate of discharge has been issued; and
          C Felonies: crime-free for 5 years (or 10 years for some class C Felonies)6 after
          completion of all sentencing requirements and certificate of discharge has been

  Adult Misdemeanor convictions may be vacated if the following criteria are met:7
      No other convictions have been previously vacated;
      No restraining orders of any kind within the last 5 years;
      No vacating for DUIs, sex offenses, obscenity or pornography under RCW 9.68,
         sexual exploitation of children under RCW 9.68A, or violent offense or attempt to
         commit violent offense under RCW 9.94A.030; and
      Non-DV: must be crime free for 3 years since completion of all sentencing
      DV: crime free for 5 years since completion of all sentencing requirements.

  Juvenile data is accessible similar to adult data, but the rules for sealing/vacating and
  destroying are different.8 As of June 10, 2010, a juvenile conviction may be sealed if the
  following criteria are met (see
       There must be no proceeding pending seeking conviction for a juvenile or criminal
          offense; there must be no proceeding pending seeking a diversion program
          agreement, and:
              o Cannot be a Sex Offense: sex offenses may not be sealed.
              o A Felonies: the juvenile must be crime-free for 5 years from the last date of
                  release from confinement and full restitution has been paid;
              o B and C Felonies: the juvenile must be crime-free for 2 years from the last
                  date of release from confinement;
              o Misdemeanors and Gross Misdemeanors: the juvenile must be crime-free
                  for 2 years from the last date of release from confinement.

Destructible: Only non-conviction data10 can be destroyed or expunged from a person’s
  criminal history record if the person has no prior convictions or subsequent arrests or
  charges and the following criteria are met:11

         Favorable dispositions (e.g., acquittals and dismissals, but not dismissals after a
          successful period of probation, suspension or deferral of sentence) may be deleted
          from a person’s criminal history record information 2 years after entry of the
          disposition favorable to the defendant.

  6 RCW 9.94A.640(2); see also RCW 46.61.502(6) or 46.61.504(6).
  7 RCW 9.96.060
  8 RCW 13.50.50, amended by ESSB 6561, Chapter 150, Sec. 2(12), 2010 Washington Laws,

  signed by Governor March 22, 2010.
  9RCW 13.50.050(12) as amended by ESSB 6561, Chapter 150, Sec. 2(12), 2010 Washington

  Laws, signed by Governor March 22, 2010, available at
  10 See RCW 10.97.030(2).
  11 RCW 10.97.060; WAC 446-16-025.
      Arrest information not leading to conviction may be deleted after 3 years from
       the date of arrest or issuance of citation or warrant.
      Fingerprint and identifying data also may be destroyed if eligibility requirements
       are met.

        PRACTICE TIP: Always go over criminal history with clients and remind
        them of the importance of sealing and destroying records as soon as they are
        eligible. Point them to the self-help resources found below.

RESOURCES: Good self-help resources are available:

      CRIMINAL HISTORY/RECORDS: A Guide on When and How to Seal/Vacate Non-
       Violent Class B or C Felony Convictions Occurring on or after July 1, 1984, 2003,
       Northwest Justice Project, available at

      A Guide on When and How to Challenge, Seal, Vacate or Expunge, 2001,
       Administrative Office of the Courts, and Instructions for Vacating Misdemeanor
       and Gross Misdemeanor Convictions with accompanying forms both available
       at the Washington Courts website at
       PRACTICE TIP: Always go over criminal history with clients and remind them of
       the importance of sealing and destroying records as soon as they are eligible.
       Point them to the self-help resources found below.
Perhaps the most severe non-confinement consequences of criminal convictions are those
faced by non-citizen defendants. Removal (deportation) and inadmissibility are triggered
by criminal dispositions. In 2010, the United States Supreme Court rule in Padilla v.
Kentucky, 599 U.S. ___ (2010) that an attorney representing a non-citizen client has an
affirmative duty to inform the client of the immigration consequences of a guilty plea.12 The
mere omission of incorrect information is not enough to insulate an attorney from an
ineffective assistance of counsel claim.13 Failure to properly advise your client of the
immigration consequences of the disposition may violate the clients’ Sixth Amendment
right to effective assistance of counsel.14

Padilla was affirmed by the Washington Supreme Court in State v. Sandoval, where the court
held that Sandoval was entitled to withdraw his plea because he had received
“unreasonable advice” regarding the immigration consequences of his plea bargain. While
Sandoval does not address the obligations of an attorney beyond circumstances beyond
those where there was affirmative misadvice, it sets as “unreasonable advice” the standard
by which prejudice is judged. Sandoval, --- P.3d ----, 2011 WL 917173 (2011).

Some steps to ensure that a noncitizen defendant receives effective assistance of counsel

Determination of immigration status: If a noncitizen defendant was not born in the
United States and is not otherwise a U.S. citizen, the first step is determining his or her
immigration status. The immigration consequences of a criminal proceeding will depend on
the defendant’s immigration status—whether the non-citizen is living in the United States
legally (e.g., as a permanent resident with a “green card”) or whether he or she is living in
the United States without legal immigration status (i.e., undocumented).

        Noncitizen Clients residing in the U.S. legally: The immigration consequences of
         criminal conviction can be far-reaching, even for those who are legal permanent
         residents (LPRs). For example, crimes involving moral turpitude that are
         committed within 5 years of admission (and in some cases 10 years of admission) to
         the U.S. are generally considered removable offenses.15 In addition, aggravated
         felonies render a noncitizen removable at any point after entry.16
        Clients residing in the U.S. illegally: Noncitizens residing in this country who are
         undocumented (here “illegally”) may be put into removal/deportation proceedings
         at any time regardless of their criminal history.17 Noncitizens do not have a right to
         counsel in removal proceedings and indigent clients are rarely represented and/or

12 Padilla v. Kentucky, 559 U.S. ___, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).
   Padilla, 130 S.Ct. at 1482.
14 Id.
   8 U.S.C. 1227(a)(2)(A)(i).
   8 U.S.C. 1227(a)(2)(A)(iii).
   8 U.S.C. 1182(a)(9)(B)(i).
         made aware of possible avenues of relief.18 A conviction can often bar subsequent
         admission for long amounts of time, if not permanently.19

Additional Consequences of Drug Convictions: Convictions involving controlled
substances have many consequences for a noncitizen defendant. If the person is here
illegally, a conviction is not even required to begin removal proceedings.20 If a person is a
legal permanent resident, a conviction of something more than a single offense of mere
possession of 30 grams or less is grounds for removal.21 However, the INA also contains a
provision that makes removable any noncitizen who is deemed a drug user or addict.22

Immigration laws are extremely complicated, and the rules listed here are by no means
exhaustive. The representation of a noncitizen defendant will always depend on the
particular facts of the case, and requires a complete analysis of how the conviction will
affect the immigration status of the defendant. It is important to be familiar with these
consequences when advising a client in any stage of the proceedings, and to make
sure that the noncitizen knows the immigration consequences of a guilty plea.

The following resources are available on the WDA website at

        A Defending Immigrants Partnership Practice Advisory, Duty of Criminal
         Defense Counsel Representing an Immigrant Defendant After Padilla v.
         Kentucky,, Immigrant Defense Project, April 2010, available at
         Quick Reference Chart for Determining Immigration Consequences of Selected
         Washington State Offenses (Washington Defender Association’s Immigration
         Project, 2009), Ann Benson and Jonathan Moore, available at and
        Padilla v. Kentucky, 599 U.S. ___ (2010), Slip Opinion available at

 PRACTICE TIP: For technical assistance, defense attorneys should call or e-mail
 Jonathan Moore of the Washington Defender Association’s Immigration Project, at
 (206)726-3332 or

   See, e.g., Michelson v. INS, 897 F.2d 465, 468 (10th Cir. 1990)(“[P]etitioner’s complaint
concerning the lack of appointed counsel does not provide a valid ground for challenging
the order of deportation because he has not shown prejudice which would cast doubt on the
fundamental fairness of the proceeding.”).
   8 U.S.C. 1182(a)(2).
   8 U.S.C. 1182(a)(2)(C).
   8 U.S.C. 1182(h)(1).
22 INA § 237(a)(2)(B)(ii).
Legal Financial Obligations
Whenever a person is convicted in superior court, the court may order the payment of a
legal financial obligation as part of the sentence.23 In Washington State, superior court
judges may now impose up to 17 fees and fines on felony defendants at the time of

Legal financial obligations (“LFOs”) include25:
    restitution;
    fines;
    crime victim penalty assessments;
    court costs;
    county or inter-local drug funds;
    court-appointed attorneys' fees and costs of defense; and
    any other financial obligation that is assessed to the offender as a result of a

LFOs begin accruing interest from the date of entry of judgment at the rate applicable
to civil judgments (12%).26 Courts may reduce or waive the interest portion of certain
LFOs under limited circumstances upon motion by the offender after release from total
confinement.27 Upon application by the defendant, interest that accrued while the
defendant was serving their incarceration for the original offense must be waived by the

The full effect of these penalties on indigent clients’ lives cannot be overstated. Until these
obligations are fulfilled, an offender will be unable to seal or vacate a conviction or obtain a
certificate of discharge necessary for the restoration of civil rights.29 For felony offenses
committed after July 1, 2000, an offender may remain under the court’s jurisdiction for
purposes of enforcing LFOs “until the obligation is completely satisfied, regardless of
the statutory maximum for the crime.”30 For felony offenses committed before July 1,

23   RCW 9.94A.760(1).
   ALEXES HARRIS ET AL., Drawing Blood from Stones: Legal Debt and Social Inequality in the
Contemporary United States, 15 AMER. J. SOC. 1753, 1758 (2010), available at
25 RCW 9.94A.030(29).
26 RCW 10.82.090,; RCW 4.56.110. See also RCW 19.52.010.
27 RCW 10.82.0090(2), allows the court to reduce or waive interest on LFOs “as an incentive

for the offender to meet his or her legal financial obligations” and if the offender has shown
that he or she has “personally made a good faith effort to pay, that the interest accrual is
causing a significant hardship, and that he or she will be unable to pay the principal and
interest in full” without a reduction or waiver. A “good faith effort” means payment of the
principal in full or 24 consecutive monthly payments, excluding payments mandatorily
deducted by DOC. The court may not waive interest on the restitution portion of the LFO
and may only reduce it if the principal of the restitution has been paid in full.
     See, RCW 10.82.090.
29   See, e.g., RCW 9.94A.640, RCW 9.96.060.
30RCW     9.94A.760(4).
2000, courts may enforce LFOs for an initial period of 10 years after the offender’s release
from total confinement or entry of the judgment and sentence (whichever is longer) which
may be extended for an additional 10 years (20 years total).31 LFOs imposed in
misdemeanor proceedings do not remain under the jurisdiction of the court for longer than
one year, but remain civilly enforceable.32

Failure to make monthly LFO payments is a violation of the judgment and sentence (J&S).
Violation of a J&S may result in arrest (with no warrant required) and sanctions ranging up
to 60 days in jail per violation.33 The court may, at its discretion, choose from the following
alternative sanctions instead:34
     work release,
     home detention with electronic monitoring,
     work crew,
     community restitution,
     inpatient treatment,
     daily reporting,
     curfew,
     educational or counseling sessions,
     supervision enhanced through electronic monitoring, or
     any other sanctions available in the community.

LFO payment schedules may be modified if your client's financial circumstances change and
your client is able to demonstrate that he or she cannot meet the payment schedule.35
Payment schedules may be modified by the DOC or by the court.36

For further reading, the following resources are available:
A Public Defender’s Guide to Legal Financial Obligations in Superior Court,
Washington Defender Association, Eric Holte and Travis Stearns, (2010), available at
Interest Waiver Guide: A Guide on How to Obtain a Court Order Waiving or Reducing
Interest on Legal Financial Obligations:

Drawing Blood from Stones: Legal Debt and Social Inequality in the Contemporary

31 Id.
32 See “Legal Financial Obligations and Cost of Supervision,” Washington State Department
of Corrections Official Policy 200.380, revised June 21, 2009, available at
33 RCW 9.94A.631.
34 RCW 9.94B.040.
35 RCW 9.94A.753(2).
36 Id.
United States, Alexes Harris et al., (2010), available at

The Assessment and Consequences of Legal Financial Obligations in Washington State,
Beckett, et al, (2008), available at
II.     Employment
Criminal convictions can result in ineligibility for a variety jobs and occupational licenses in
Washington. Although the Restoration of Employment Rights Act, RCW 9.96A, prohibits
government entities from denying employment or occupational licenses to persons solely
based on their felony convictions, there are numerous exceptions to this general rule.37

Employment Related to Vulnerable Adults and Children: Criminal background checks
are required for persons who are employed by, contract with or are licensed by the
Department of Social and Health Services (“DSHS”) to provide services to children or
vulnerable adults.38 School districts and their contractors who have employees who will
have regular unsupervised access to children are also required to do criminal background
checks on their employees.39

Nursing Homes, Childcare, etc.: “Crimes against children or other persons”40 will
prohibit persons from working in nursing homes, adult family homes, boarding homes,
and child care facilities.41 This includes, among others, assault in the fourth degree.
“Crimes of financial exploitation,”42 including theft in the third degree, will also make a
person ineligible to work with vulnerable adults, e.g., in nursing homes. The time limits for
ineligibility for such jobs may vary depending on the crime committed.

Persons who have felony convictions for crimes against children, “spousal abuse,” and
violent crimes will be permanently prohibited from contracting with or being licensed by
DSHS to provide any type of care to children or individuals with a developmental
disability.43 Convictions for assault or sex offenses not included in the permanent bar,
any felony drug conviction, or any other felony will disqualify individuals from licensing,
contracting, certification, or from having unsupervised access to children or to individuals
with a developmental disability for 5 years.44

Schools: Crimes against children will disqualify persons from being school employees,
contractors with schools or being school bus drivers.45 Certified school employees,
e.g., teachers, are also required to have “good moral character” which means no convictions
in the last ten years, including motor vehicle violations, which “would materially and
substantially impair the individual’s worthiness and ability to serve as a professional within

37 RCW 9.96A.020.
38RCW 43.43.832.
39 RCW 28A.400.303
40 RCW 43.43.830(5).
41 RCW 43.43.842; WAC 388-97-1820 (nursing homes); WAC 388-76-10015 (adult family

homes); WAC 388-06-0170 (access to children).
42 RCW 43.43.830(7).
43 WAC 388-06-0170.
44 WAC 388-06-0180
45 RCW 28A.400.320 (school employees); RCW 28A.400.330 (school contractors); WAC 392-

144-101 (school bus drivers).
the public and private schools of the state.”46 Volunteers in schools may also be requested
to provide criminal background checks; however, it is not statutorily required.47

Federal Laws Affecting Employment Opportunities: Federal law prohibits financial
institutions from employing a person who has been convicted of a crime of dishonesty,
breach of trust, or money unless he or she has received written consent from the Federal
Deposit Insurance Corporation (FDIC).48 For purposes of this law, pre-trial diversion or
similar programs are considered to be convictions. Federal law also bars certain classes of
felons from the following jobs:

        working in the insurance industry without having received permission from an
         insurance regulatory official;49
        holding any of several positions in a union or other organization that manages an
         employee benefit plan;50
        providing healthcare services for which they will receive payment from Medicare;51
        working for the generic drug industry;52
        providing prisoner transportation;53 and
        employment in aviation security.54

Other Jobs Affected: Other examples of jobs that are affected by certain types of
convictions include (this list does not purport to include all jobs affected by criminal
     law enforcement;55
     tow truck operators contracting with Washington State Patrol;56
     Washington State Patrol assistance van drivers;57 and
     JRA employment or volunteer positions.58

Jobs Requiring a Driver’s License or Ability to Possess a Firearm: Since many jobs
require the ability to drive, the penalty of losing a driver’s license (see Section VIII) may
prohibit many defendants from future employment, at least for a period of time. Similarly,
the consequence of losing the right to possess a firearm will disqualify defendants from
certain types of employment (e.g., security guards, federal park rangers, etc.).

Employment Discrimination:

46 WAC 180-86-013.
47 RCW 28A.320.155.
48 12 U.S.C. § 1829(a)(2), as amended by Pub. Law 111-203, 2010 HR 4173, July 21, 2010.
49 18 U.S.C. § 1033(e)(2).
50 29 U.S.C. §§ 504.
51 42 U.S.C. § 1320a-7(a).
52 21 U.S.C. § 335a(a)(2).
53 42 U.S.C. § 13726b(b)(1).
54 49 U.S.C. § 44935; 49 U.S.C. § 44936(b)(1)(B).
55 See WAC 139-05-220
56 WAC 204-91A-060.
57 WAC 204-93-040.
58 RCW 72.05.440.
        Permissible Pre-employment Inquiries: Although some states ban the practice,
         in Washington employers and occupational licensing authorities are permitted to
         ask job applicants about and consider arrests not leading to conviction.59 However,
         there is some limit. Because statistical studies regarding arrests have shown a
         disparate impact on racial minorities, it is an unfair practice to ask about arrests
         older than 10 years and inquiries must include whether the charges are still
         pending, have been dismissed or led to conviction of a crime involving behavior that
         would adversely affect job performance.60 Certain organizations, such as law
         enforcement, state agencies and organizations that have direct responsibility for the
         supervision, care, or treatment of children, mentally ill persons, developmentally
         disabled persons, or other vulnerable adults are exempt from these restrictions.61

         Similarly, for inquiries concerning convictions to be considered “fair” under
         Washington’s discrimination law they must concern convictions less than ten
         years old (from the date of release from prison) and relating reasonably to the
         job duties.62 Certain agencies and organizations, e.g., schools and DSHS, are exempt
         from this requirement.63

        Racial Discrimination Claims Based on “Disparate Impact”: Federal courts have
         found that a policy of asking about criminal records has a “disparate impact” on
         African Americans and Hispanics.64 Therefore, African Americans and Hispanics
         who have been denied employment based on their criminal history record may have
         a basis for a Title VII claim with the Equal Employment Opportunity Commission

To file a discrimination complaint with the EEOC, follow the process set forth by the
commission. Information is available at

59 See, e.g., RCW 28A.400.320 WAC 139-05-220. But see RCW 46.20.391 (occupational
60 WAC 162-12-140(3)(b).
61 Id.
62RCW 49.60 et seq.; WAC 162-12-140(3)(d).
63 Id.
64 See, e.g., Green v. Missouri Pacific Railroad Company, 549 F.2d 1158 (8th Cir. 1977).
III. Housing
Private Housing: In Washington, landlords are permitted to screen and deny housing to
individuals based on criminal history.65 A private landlord is not permitted to deny housing
for discriminatory reasons, e.g., solely based on a history of domestic violence without
inquiring as to whether applicant was a victim or perpetrator;66 or solely because of past
drug addiction.67 A private landlord may deny housing based on a reasonable belief
that an applicant is currently engaged in illegal drug use.68 A landlord also may deny
housing based on a conviction for manufacture or distribution of a controlled

The statutes governing eviction from residential property43 allow landlords to evict a
person who has been arrested (whether or not convicted) for assault occurring on the
premises or unlawful use of a firearm or other deadly weapon on the premises.70 A
landlord also may evict a tenant for engaging in gang or drug related activity or allowing
another to engage in such activity on the premises.71 Different laws apply to mobile home
parks and allow for eviction for criminal activity which threatens the health, safety or
welfare of the tenants.72

Public Housing: Federal law regulates admission and eviction from housing programs
funded through the U.S. Department of Housing and Urban Development (“HUD”).73 There
are different types of HUD funded housing programs which are generally administered
through local Public Housing Authorities (“PHAs”) like the Seattle Housing Authority. These
programs include, among others, public housing projects, Section 8 voucher programs and
multi-family housing programs (a.k.a. project-based assistance.) Different housing
providers receiving the same type of HUD funding may have different admission and
eviction requirements; however, HUD requires landlords to deny housing to applicants who
have committed certain crimes.74 There are no federal rules for screening the criminal

65 The United States Fair Housing Act does not include criminal history as a protected class.
42 U.S.C. § 3604.
66 See Alvera v. C.B.M. Group et al., No. CV 01-857-PA, Consent Decree (D. Or. 2001)(denying

housing to victims of domestic violence has disparate impact on women and as such
constitutes unlawful sex discrimination), 42 U.S.C.§ 3604 et seq. (prohibiting discrimination
based on sex).
67 24 C.F.R. § 100.201(a)(2).
68 RCW 59.18.130(6).
69 Id.
70 RCW 59.16 et seq. (Unlawful Detainer Statute), RCW 59.18 et seq. (Residential Landlord-

Tenant Act).
71 RCW 59.18.130(6) and (9).
72 RCW 59.20 et seq. (Mobile Home Landlord-Tenant Act).
73 The term “federally assisted housing” is defined in the statute and regulations relating to

criminal activity and access to criminal records to include public housing, the voucher
program, activproject-based Section 8, Section 202, Section 811, Section 221(d)(3), Section
236, Section 514 and Section 515. See 42 U.S.C.A. § 13664 (West, WESTLAW through P.L.
110-46 (excluding P.L. 110-42 & 110-44) approved 7-5-07) and 24 C.F.R. § 5.100 (2007).
74 Id.
history of applicants to some of the smaller HUD programs such as the Supportive Housing
Program (SHP), or for the Low Income Housing Tax Credit (LIHTC).75

Mandatory Lifetime Bans on Admission:
   Households which include a registered sex offender.76
   Households which include a person convicted of the manufacture or production of
     methamphetamines on the premises of a federally assisted housing

Other Mandatory Bans on Admission:
    3 year ban from the date of eviction against any household which includes an
      individual who was evicted from federal assisted housing for drug related
      activity, unless the housing provider determines that the evicted household
      member has successfully completed a supervised drug rehabilitation program
      approved by the PHA or the circumstances leading to the eviction no longer exist
      (for example, the criminal household member has died or is imprisoned).78
    Households which include a member who the housing provider has a reasonable
      belief is currently engaged in illegal use of a controlled substance or whose
      pattern of illegal drug use may threaten the health, safety or right to peaceful
      enjoyment of the premises by other residents.79
    Households which include those whom the housing provider believes is engaging in
      a pattern of alcohol abuse that threatens the health, safety or right to peaceful
      enjoyment of the premises by other residents.80

Permissible Exclusion: A HUD housing provider is permitted to exclude any household
which includes a member currently engaging in, or has engaged in during a reasonable time
before the admissions decision, in violent criminal activity81 or other criminal activity
that would threaten the health, safety, or right to peaceful enjoyment of the premises
by other residents or staff.82 HUD guidance policy suggests that “fi ve years may be
reasonable for serious offenses” and PHAs and owners may want to differentiate what a
reasonable time period is for different types of criminal activity.83

Mandatory Eviction from Federally Funded Housing Programs: Manufacture or
production of methamphetamines in any HUD funded housing program, with the

75 Id.
76 Quality Housing and Work Responsibility Act of 1998 (QHWRA) § 578, 112 Stat. 2461, P.L.
105-276; see also 66 Fed. Reg. 28,776 (May 24, 2001).
77 42 U.S.C. § 1437n(f).
78 42 U.S.C. § 13661(a).
79 42 U.S.C. § 13661(c).
80 24 C.F.R. §§ 960.203.
81 The regulations define “violent criminal activity” as “any criminal activity that has as one

of its elements the use, attempted use, or threatened use of physical force substantial
enough to cause, or be reasonably likely to cause, serious bodily injury or property
damage.” 24 C.F.R. § 5.100 (2007).
82 42 U.S.C. § 13661(c).
83 Screening and Eviction for Drug Abuse and Other Criminal Activity; Final Rule, 66 Fed.

Reg. 28,776, 28,779 (May 24, 2001).
exception of project-based multi-family housing, will result in mandatory eviction.84
Reasonable cause to believe there is current drug use or reasonable cause to believe that
illegal drug use or pattern of illegal drug use may interfere with the health, safety, or right to
peaceful enjoyment of the premises by other residents also will result in a mandatory
eviction from federally funded public housing.85 Households which include a member who
engages in a pattern of alcohol abuse that interferes with other tenants rights also must be
evicted by federally funded housing programs.

Discretionary Eviction from Federally Funded Housing Programs: Drug related
criminal activity “on or off” the premises of a public housing project is grounds for
eviction from the public housing complex and allows PHAs authority to evict family
members for the drug related activity of other household members or guests.86 There may
be an “innocent tenant” defense under Washington law87 or some municipal codes. Drug
related criminal activity “on or near” the premises of other HUD funded projects is
grounds for eviction.88

Public housing providers may evict persons for other criminal activity which threatens
the health, safety or right to peaceful enjoyment of the premises by other residents,
persons residing in the immediate vicinity or on-site property management staff. The
housing provider has broad discretion to consider all relevant circumstances. A federally
funded housing provider may also evict tenants who are fleeing felons or probation or
parole violators.89

 PRACTICE TIP: Be sure to ask your client whether he/she lives in government
 subsidized housing and advise the client that a criminal conviction could result in the loss
 of their housing and also affect their ability to get into government funded housing;
 especially HUD funded housing, in the future.

 PRACTICE TIP: In addition, ask your client if there is a pending eviction proceeding for
 his or her household and, if not, to let you know if one is started. For purposes of
 preserving a client’s housing, it is generally better to wait to resolve the criminal matter
 until after the eviction proceeding is resolved unless you are confident that your client
 will be found not guilty. Contact a housing specialist through the Northwest Justice
 Project in your region.
For further reading, the following resource is available on the National Housing Law
Project website:

An Affordable Home on Re-entry: Federally Assisted Housing and Previously
Incarcerated Individuals, Catherine Bishop, National Housing
Law Project (2008), available at

84 Screening and Eviction for Drug Abuse and Other Criminal Activity; Final Rule, 66 Fed.
Reg. 28,776 (May 24,2001)
85 Id.
86 U.S. Dept.’ of Housing and Urban Development v. Rucker, 122 S.Ct. 1230, 152 L.Ed.2d 258

(2002); see also QWHRA § 512, P.L. 105-276 (1998); 66 Fed. Reg. 28,776 (May 24, 2001).
87 RCW 59.18.130(6).
88 QWHRA §§ 576(d), 577 and 579; see also 66 Fed. Reg. 28,776 (May 24, 2001).
89 QHWRA § 512(b); 42 U.S.C. § 1437f(d)(1)(B)(v); 66 Fed. Reg. 28,784 (HUD comments).
The Importance of Stable Housing for Formerly Incarcerated Individuals, Housing Law
Bulletin Volume 40, available at
IV. Public Benefits
 In 1996, Congress passed the welfare reform act90 creating Temporary Assistance for
Needy Families (“TANF”), and imposing a lifetime ban on receiving cash assistance and food
stamps to persons convicted of a state or federal felony drug offense. Washington has
modified the ban; however, significant eligibility restrictions remain.91 TANF is set to be
reauthorized by September 30, 2010.92

There are 4 ways criminal matters can affect your client’s eligibility for public assistance:

     1. Felony Drug Convictions: A felony drug conviction no longer makes a person
        ineligible for TANF benefits.93 Prior to that, any felony drug conviction
        (possession, use, delivery, conspiracy to or attempt to possess or deliver), adult or
        juvenile, committed after August 21, 1996 made a person ineligible for cash
        assistance through TANF/State Family Assistance (SFA) and, food assistance94
        unless certain criteria were met. Drug convictions do not affect an individual’s
        ability to receive Disability Lifeline benefits, but a person may need to submit to
        drug or alcohol treatment in order to continue benefits.95

     2. Fleeing Felons: A felony warrant will make a person ineligible for cash assistance
        and food assistance, including TANF, SFA, and GAU. In order to be “fleeing” the
        person must be acting with intent to avoid prosecution or confinement – the person
        must have knowledge of the warrant to be considered “fleeing.”96

     3. Probation or Parole Violators: Currently violating a condition of probation or
        parole will make a person ineligible for cash assistance and food assistance (TANF,
        SFA, and GAU).97 A person is violating probation or parole when a court has issued
        an arrest warrant for them after being notified by the corrections officer that the
        person failed to comply with a requirement of probation or parole.

     4. Convictions for Welfare Fraud: A conviction for unlawful practices in obtaining
        cash assistance will render a person ineligible for cash assistance under TANF as
        determined by the sentencing court, but in no event less than 6 months.98

90 Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No.
91 21 U.S.C. § 862a. See also RCW 74.08.025.
92 A bill is currently in the House Ways and Means Committee that would the Personal

Responsibility And Work Opportunity Reconciliation Act of 1996 (which creates TANF) to
repeal the denial to drug felons of eligibility for benefits. See Bill Summary and Status, H.R.
3053, available at
93 See RCW 74.08.025(4); 21 U.S.C. 862a(a).
94 RCW 74.08.025.
95 WAC 388-400-0025. See also WAC 388-448-0220.
96 WAC 388-442-0010(1)(a).
97 WAC 388-442-0010(1)(b).
98 RCW 74.08.290; RCW 74.08.331
 Incarceration, SSI and Other Federal Benefits: Although a person will remain eligible
for many federal benefits despite criminal convictions, periods of incarceration may affect a
person’s receipt of benefits such as Supplemental Security Income (SSI), Social Security
Disability Insurance (SSDI), and veteran’s benefits.99 For example, SSI payments will
continue until a person has been in jail or prison for a full calendar month.100 SSDI
payments will continue until a person is convicted and has spent 30 days in jail or prison.101
If an SSI recipient is incarcerated for more than 12 consecutive months, benefits will be
terminated entirely and the person will have to reapply.102 SSDI recipients may remain on
the rolls no matter how long a period of incarceration; however, they will need to request
reinstatement of cash benefits prior to or upon release.103

The Veterans Administration bars three types of felons from receiving VA benefits.104 The
types are, (1) felony charges with an outstanding warrant; (2) felony conviction with an
outstanding warrant, or (3) a violation of probation or parole when the underlying crime
was a felony.

               PRACTICE TIP: For mentally ill clients who rely on SSI to
               survive, the day of the month that they are released may make
               a difference in whether they lose an entire month’s worth of
               SSI. The resource below explains the specific rules which apply
               and might be used to advocate for these clients’ particular
RESOURCES: Arrested? What Happens to Your Benefits If You Go to Jail or Prison?: A
Guide to the Federal Rules on SSI, SSDI, Medicaid, Medicare and Veterans Benefits for
Adults with Disabilities, February, 2004, Bazelon Center for Mental Health Law
available at

What Do I Do If Social Security Stops my Benefits Because I am a "Fleeing Felon"?,
Northwest Justice Project, 2009, available at

99 See 42 U.S.C. 1320a-7; 20 CFR 404.468; 38 U.S.C. 6105.
100 42 USC 402(x)(1)(B)(i). See also Understanding Supplemental Security Income SSI
Eligibility Requirements, available at
101 20 CFR 404.468
102 42 U.S.C. 1320a-7
103 20 CFR 404.468
104 See Federal Benefits for Veterans and Dependents, vii, published by the Department

of Veterans Affairs (2008), available at
V. Family Issues
Collateral Proceedings: Parents who are involved in criminal proceedings may also be
involved in collateral proceedings with the Department of Social and Health Services
(“DSHS”), i.e., dependency and/or termination of parental rights proceedings, in family law
proceedings or in child support enforcement proceedings. Defense attorneys should be
aware of the following:

         Clients may be making both in and out of court statements in the context of these
          civil collateral proceedings.
         Evidence may be obtained from these collateral proceedings which might affect the
          criminal case.
         Criminal history, conviction and non-conviction, may be admissible in dependency
          proceedings insofar as it is relevant to parental fitness.105
         Certain felony convictions are considered “aggravated circumstances” and may
          result in the “fast-track” termination of parental rights.106
         Child support obligations continue to accrue when a person is incarcerated, unless a
          modification is requested.107

 PRACTICE TIP: For clients who are parents, find out if they are involved in dependency
 proceedings, get permission to talk to their dependency attorney and remind your client
 that statements made in the context of those proceedings still may be used against them
 in criminal proceedings.

 PRACTICE TIP: For clients with child support orders, advise them that they may seek a
 modification of their child support orders while they are in DOC. Otherwise, they may
 face large amounts of back support owed when they are released. Northwest Justice
 Project has good self-help resources on this issue on their website,
Foster Parents: In accordance with the Child Abuse Prevention and Treatment Act
(CAPTA), Washington’s Children’s Administration must perform background checks on all
applicants for foster care and all household members 16 years and older who are not
already foster children.108 Certain criminal convictions109 of an applicant or an applicant’s
household member may preclude licensing, at least for a period of time. Some convictions,
such as certain violent crimes and crimes against children, will always disqualify you

Other crimes, such as most drug convictions, some assault, and “other felonies” will bar you
for up to 5 years.111 These crimes require the Children’s Administration to engage in a
decision-making process in which they weigh a variety of factors, including length of time
since the conviction, seriousness of the offense, and number and types of other

105 WAC 246-924-445(5)(j).
106 RCW 13.34.132.
107 RCW 72.09.111(1).
108 WAC 388-06-0110.
109 WAC 388-06-0170; 388-06-0180 (amended February 8. 2009).
110 WAC 388-06-0170
111 WAC 388-06-0180.
convictions.112 Under extremely rare circumstances, an administrative approval may be
given when it is determined that the “conviction does not jeopardize the child’s health and
safety and promotes long-term stability.”113

PRACTICE TIP: Ask juvenile clients who are 16 and older (but not foster children
themselves) if they reside with caretakers who are licensed foster parents. If they do, check
with DSHS licensors to determine whether their convictions could result in revocation of
their home’s foster license.

Adoptive Parents: Adoptive parents must submit to a criminal background check which is
included in the “pre-placement report” setting forth all relevant information relating to the
fitness of the person as an adoptive parent.114 Criminal history information, which includes
convictions, pending charges and arrests less than a year old, may be included in the report,
but do not create any automatic bars to adoption.115

EXCEPTION: The same convictions which prohibit a person from becoming a licensed
foster parent (e.g., crimes against children, violent crimes, et al.) will bar a person from
adopting a child through the Department of Social and Health Services (i.e., children who
are in court ordered out of home placement).

For some additional information on the DSHS policy regarding the licensing of foster
and adoptive parents, see the Children’s Administration CAPTA Background Check
WAC & CA Policy, Reissued Decemer 31, 2007, available at

112 WAC 388-06-0190.
113 Children’s Administration CAPTA Background Check WAC & CA Policy, Reissued
December 31, 2007, available at
114 RCW 26.33.190
115 Id.
VI. Driving
Convictions for the following offenses require suspension, revocation or disqualification of
driving privileges for various statutorily mandated periods of time:

         DUI116 or Physical Control;117
         DWLS/R 1st or 2nd degree;118
         Vehicular Assault;119
         Vehicular Homicide;120
         Racing or Reckless Driving;121
         Attempting to Elude;122
         Hit and Run Attended;123
         Taking a Motor Vehicle (driver only);124
         Any felony involving a Motor Vehicle;125
         Unattended Child in Running Vehicle (2nd and subsequent offenses);126
         Reckless Endangerment in a Construction Zone;127
         Failure to stop and give information or render aid in the event of a motor vehicle
          accident resulting in the death or personal injury of another or resulting in damage
          to a vehicle that is driven or attended by another;128
         Perjury or the making of a false affidavit or statement under oath to the department
          under Title 46 RCW or under any other law relating to the ownership or operation
          of motor vehicles;129
         Minor in Possession of Alcohol (MIP) OR Drugs (VUCSA) (includes diversions);130
         Minor in Possession of a Firearm.131

Some of these offenses require longer periods of suspension depending on the number of
prior convictions (e.g., DUI) and some have criteria for early reinstatement (e.g., MIP).132
Certain convictions and serious traffic violations will disqualify persons from holding
commercial driver’s licenses for various periods.133 Temporary restricted driver’s

116 RCW 46.61.502.
117 RCW 46.61.504.
118 RCW 46.20.342
119 RCW 46.20.285(2).
120 RCW 46.20.285(1).
121 RCW 46.61.500; RCW 46.61.530; RCW 46.20.285.
122 RCW 46.61.024.
123 RCW 46.52.020
124 RCW 9A.56.070; RCW 46.20.285.
125 RCW 46.20.285
126 RCW 46.61.685
127 RCW 46.61.527(5).
128 RCW 46.20.285(5).
129 RCW 46.20.285(6).
130 RCW 46.20.265.
131 RCW 9.41.040.
132 RCW 46.61.502; RCW 46.20.265.
133 RCW 46.25.090.
licenses may be issued by the Department of Licensing under certain circumstances to
individuals engaged in occupations or trades that make motor vehicle operation
essential.134 These can enable driving for work, school, court-ordered community service,
substance abuse treatment, health care purposes, or applying for on-the-job training.

For more information, see the Department of Licensing website, at

134   RCW 46.20.391 (Effective until January 1, 2011).
VII. Right to Possess Firearms

Persons convicted of felonies, crimes of domestic violence or who have been involuntarily
committed under RCW 71.05.320, 71.34.090, 10.77, or equivalent statutes of another
jurisdiction are prohibited from owning or possessing firearms until their right to do so has
been reinstated.135

Reinstatement: A person who is prohibited from possessing a firearm because of a
criminal conviction may petition the court for reinstatement of this right under the
following circumstances:136

         Felony offense: after 5 years crime free in the community, if the individual has no
          prior felony convictions that prohibit the possession of a firearm counted as part of
          his or her offender score.137

         Non-felony offense: after 3 years crime free in the community, if the individual
          has no prior felony convictions that prohibit the possession of a firearm counted as
          part of the offender score and the individual has completed all conditions of the

Federal Law: Persons convicted of felonies or DV misdemeanors are also prohibited from
possessing firearms under federal law.139 Federal law also prohibits fugitives, drug addicts,
illegal aliens, persons dishonorably discharged from the military and persons subject to
domestic violence protection orders from possessing firearms.140 In addition, persons who
have been charged with a felony, but not yet convicted, are prohibited by federal law from
acquiring a firearm.141 What constitutes a conviction is determined in accordance with the
law of the jurisdiction in which the proceedings were held and “any conviction which has
been expunged, or set aside or for which a person has been pardoned or has had civil rights
restored” shall not be considered a conviction unless ”such pardon, expungement, or
restoration of civil rights expressly provides that the person may not ship, transport,
possess, or receive firearms.”142 Persons with federal convictions must seek restoration of
the firearm rights through the Bureau of Alcohol, Tobacco and Firearms; however, currently
there is no process for doing so.143

To restore your rights in Washington, convicted felons must determine which sets of
statutes are involved. If a federal court rendered the conviction, then the restoration is
handled under federal law. If the conviction came under a state court, then the individual

135 RCW 9.41.040; RCW 9.41.045; RCW 9.41.047
136 RCW 9.41.040(b).
137 RCW 9.41.040(b)(i).
138 RCW 9.41.040(b)(ii).
139 18 U.S.C. § 922(g).
140 Id.
141 18 U.S.C. § 922(t)(3).
142 18 U.S.C. § 921(a)(20)(B).
143 18 U.S.C. §925(c) But see United States v. Bean, 123 S.Ct 584 (2002)(The federal district

court had no authority to restore petitioner’s right to possess firearms even where Congress
has refused to provide a process through the ATF for restoration of rights).
can seek relief on the state level, although some violent crimes can only be restored by a
federal court.

NOTE: A person may have his right to possess firearms restored under Washington law
before being eligible to possess firearms under federal law. Restoration under Washington
law is triggered by the period of time one spends in the community crime-free, not by the
restoration of one’s civil rights.144 Restoration of one’s civil rights under Washington law
requires a certificate of discharge145 which may be more difficult to obtain. See Section

144   RCW 9.41.040; see also State v. Mihali (2009) 152 Wn.App. 879, 218 P.3d 922.
145   RCW 9.94A.637.
VIII.               Voting and Jury Duty

A person who is convicted of a felony in Washington loses important civil rights upon
conviction, including the right to vote and to serve on a jury. Other than voting rights which
may be restored earlier, a person’s civil rights may not be restored until all sentencing
requirements are fulfilled, including paying all of the legal financial obligations.146 If a
convicted felon receives a suspended sentence, his or her civil rights may be restored upon
completion of the suspended sentence.147 Otherwise, a certificate of discharge148 or a
pardon149 is required in order to restore a convicted felon’s right to vote or serve on a jury.
Since a certificate of discharge is conditioned upon payment of all legal financial obligations,
if a convicted felon fails to pay them off, he or she may permanently lose the right to vote or
serve on a jury.150

For a felony conviction in Washington State Court, voting rights are provisionally restored
when the person is no longer under the authority of the Department of Corrections. For a
felony conviction in a federal court or any state court other than a Washington state court,
the right to vote is restored as long as the person is no longer incarcerated.151

Once the right to vote has been provisionally restored, the sentencing court may revoke the
provisional restoration of voting rights if the sentencing court determines that a person has
willfully failed to comply with the terms of his or her order to pay legal financial

A person who has completed all of their sentence obligations, including LFOs, is entitled to a
permanent restoration of his or her voting rights.153 This can be done via court order
pursuant to RCW 9.92.066, a certificate of discharge issued by either the Governor or the
sentencing court, or a final order of discharge issued by the ISRB.154

To find court forms for voting rights and certificate of discharge online, you can
access the Washington Courts Website at

      RCW 29A.08.520 (voting), RCW 2.36.070(5) (jury duty), RCW 9.94A.637 (certificates of discharge).
147 RCW 9.92.066.
148 RCW 9.94A.637
149 See RCW 9.94A.885 (governor’s clemency and pardon board), RCW 9.95.260

(indeterminate sentence review board).
150 RCW 9.94A.637.
151 RCW 29A.08.520(1).
152 RCW 29A.08.520(2).
153 RCW 29A.08.520(6).
154 Id.
IX.    Federal Student Loans

Until 2006, a person convicted of any drug offense including possession of marijuana was
not eligible for any federal higher education grant, loan, or work study assistance for
various time periods. In 2005, Congress passed the Deficit Reduction Act of 2005, which
limited the law. suspending, as of July 1, 2006, only those convicted of a drug offense while
receiving federal student aid.155 If a student is not convicted while enrolled there should be
no suspension of financial aid.

Additionally, A person may not claim the tax benefits of the Hope Scholarship Credit for an
academic period if he or she “has been convicted of a Federal or State felony offense
consisting of the possession or distribution of a controlled substance before the end of the
taxable year with or within” which the academic period ends.156

The student may receive a waiver, if the student successfully completes an approved drug
rehabilitation program.

Additional student loan information can be found online here:

155 See Federal benefits found under 20 U.S.C. §1070 et seq. and 42 U.S.C. §2751 et seq.;
Higher Education Act, 20 U.S.C. §1091(r)(1); Deficit Reduction Act of 2005, Pub. L. No. 171,
§8021, 120 Stat. 4.
156 20 U.S.C. 25A(b)(2)(D).
X.      Military Service
Felony convictions generally will preclude military service; however, each branch has the
authority to make exceptions.157 For example, the Army may grant a waiver for certain
felony convictions that are over 1 year old (from date of completion of sentencing
requirements) and for juvenile felonies that are over 5 years old.158 The Navy, however,
considers all felonies disqualifying and will grant waivers only for misdemeanor convictions
(2 or 3 at the most).

 PRACTICE TIP: For juvenile or adult clients considering military service, contact a local
 recruiter to determine whether certain convictions will preclude service or can be waived.

15710 U.S.C. §504(a), 32 C.F.R. §96.1 et seq.
158See, e.g., Can I Join the Army?: Disqualifiers, available at
XI. Traveling to Canada
Canadian border officials at the Washington border have the ability to run criminal history
checks and may deny entry to individuals based on “inadmissible” criminal history. Under
Canadian law, a foreign national may be inadmissible to Canada for, among other reasons,
“committing an act outside Canada that is an offence in the place where it was committed
and that, if committed in Canada, would constitute an indictable offence under an Act of
Parliament.”159 A conviction is not required, so admission may be denied to those who
received dismissals after deferred prosecution or stipulated orders of continuance.
Canada’s “indictable” offenses include many offenses which are misdemeanors in the U.S.,
for example, DUIs.160 In addition, two or more convictions for offenses which are not
“indictable” will be the basis for inadmissibility.161

A person may overcome criminal inadmissibility by either being “deemed rehabilitated”
because the offense is over 10 years old or by paying a fee and applying for “rehabilitation”
through the Canadian consulate for convictions which are between 5 and 10 years old.162
For convictions less than 5 years old, a person may apply for a “temporary resident’s

Additionally, there is a waiver available for those who are members of Native American
tribes or a First Nation in Canada who wish to cross the border may be able to take
advantage of the Jay Treaty, which gives them free travel between America and Canada..164
Eligible persons must provide evidence of native heritage, and documentation must be
sufficient to show the bearer is at least fifty percent Native American or First Nation.165 Such
a person may then be admitted to the U.S. without a visa, unencumbered by typical
immigration restrictions of the INA, including the sections barring admission of those with
criminal convictions.166

159 Immigrant and Refugee Protection Act [Canada], 36(2)(c).
160 Criminal Code [Canada], 253-255.
161 Immigration and Refugee Protection Act, 36(2)(b).
162 Immigration and Protection Regulations [Canada], 18(2).
163 Id. at 179.
164 The Jay Treaty, signed in 1794 between Great Britain and the United States, provided

that American Indians could travel freely across the international boundary. The United
States has codified this obligation in the provisions of Section 289 of the Immigration and
Nationality Act (INA) as amended. 8 U.S.C. § 1359.
165 8 U.S.C. § 1359.
166 8 U.S.C. § 1359.
  810 Third Avenue
      Suite 800
 Seattle, Washington

   (206) 623-4321

To top