By Randall Cohn

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

If you 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 have lived prior to making your application. These records help the authorities to determine whether an applicant is inadmissible to Canada for reasons related to previous criminality. In most instances, these are relatively straightforward documents that can be requested from a consulate or a central criminal records office either by an applicant or directly by Immigration Refugee and Citizenship Canada (IRCC). Getting the necessary documents from the United States, however, can be surprisingly difficult.

This is primarily because — unlike in Canada, where criminal law is legislated and enforced by the federal government – most criminal law in the U.S. is under 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 it from the various criminal jurisdictions, and it is notoriously incomplete.

To get an accurate picture of a person’s criminal record, therefore, IRCC will often require applicants who have lived in the U.S. (or who have been arrested or charged with a crime while visiting the U.S.) to submit a certificate from the FBI and from each of the individual states where they lived or had encounters with the police. Each state has its own record-keeping system and its own protocols for accessing the records. That creates inefficiencies and sows confusion.

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

To avoid this kind of delay, I always advise my clients that requesting police certificates is the very first thing they should do when beginning to prepare an application. Here are some tips about how to navigate the process and some links to resources that I have found helpful.

Requesting an Identity History Summary (‘Rap Sheet’) from the FBI

The FBI offers three ways to request a copy of your ‘rap sheet’. While this is intended to make the process convenient and accessible to a wide range of people, each option has its own pitfalls – and the choices can be confusing. Keep in mind that you must submit your fingerprints to the FBI to complete a request. If you have submitted an application, whether online or by mail, and you haven’t been fingerprinted, then your application is not complete.

Option 1: Apply online through eDO and submit fingerprints at the post office (available in the US only)

This relatively new online process is the fastest and easiest method, provided that (1) the system is working at any given time; and (2) you are able to travel to one of a limited number of USPS locations that offer fingerprinting services. As it stands right now, the website is down at least as often as it is working, and the participating post offices are disappointingly clustered around major metropolitan areas.

I am hopeful that the system will become more reliable in the coming months or years, but the federal government of the United States has not historically been very nimble at solving IT problems, so I’m not holding my breath. If you choose to use eDO, make sure that you get a clear confirmation that your request has been successfully submitted.

Option 2 : Use 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 make a request, and will ensure that it is submitted correctly. Many channelers use a LiveScan digital fingerprint collection process, and can deliver a preliminary report within minutes. This service is only available to US citizens and permanent residents.

The FBI’s list of approved channelers simply lists names of companies in alphabetical order, and it is not particularly intuitive to use that list to find a channeler close to you. My clients have had success simply searching ‘FBI Channeler’ and their location in a popular internet search engine. In some states, FBI channelers are also contracted to provide fingerprints for state records searches.

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

Option 3: Request via mail and submit a fingerprint card

If you are unable to make it to a channeler or participating post office, you can download a request form and a manual fingerprint card, and submit them by mail to the FBI.

In major cities in Canada and in many other countries, there are private agencies that will help you record fingerprints and submit the request on your behalf. Take care to make sure that anyone offering this service is credible before giving them your fingerprints or identifying information. If you fill 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 appropriate fee.

This option takes the longest to process, and the FBI frequently rejects mail-in applications because of poor-quality fingerprint samples. Nonetheless, for many people – especially those who are making their request from outside the United States – it is the only practical option.

Requesting state police certificates

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

Cornell University has collected information about how to request records from most (but, as of this writing, not all) of the states and compiled it here as a public service. Note, however, that this list is intended to assist people seeking employment-related background checks, and in some states (e.g. California), the process is different when seeking a record for immigration purposes.

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

  • Make sure that you are requesting records from the statewide criminal record system, and not from a particular district court or police precinct. In some districts that include major cities with large populations, there are streamlined (and on-line) application processes available for local records, and it is not always easy to tell from the website whether you are searching at the county level, for instance, rather than the state level. (You may want to follow up for detailed records from the courts or police precincts later, but your first request should be from the state).
  • Some states offer several different types of records. Always request the most comprehensive, and most official version available. In Washington, for example, you can request records online and receive the results immediately, or you can request a full background check by submitting a form, with or without fingerprints, either by mail or in person. The instant, online search costs US$11. The full (name-based) record check without fingerprints costs US$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 US$68. If you choose one of the cheaper or more convenient versions, you run a significant risk that your application will be delayed or rejected until you can provide the deluxe record.
  • At least one state (Arizona) refuses to provide certified police records for the purposes of foreign immigration. IRCC knows this and won’t penalize you for not including a state record. Do not misrepresent the purpose of your request in order to obtain a record. Instead, request an official letter from the state showing that you have made the request and the request has been denied. (Arizona provides these letters as a matter of course, and provides a number to call to make a request on the website linked above.)
  • Some states (e.g. California, Florida, New 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 you time and effort to check before making a fingerprinting appointment to see if you can get state and federal requests taken care of at the same time.

Interpreting your records

If you have never been arrested or charged with a crime in the United 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 US law enforcement, however, don’t assume that the records are accurate – or that Canadian authorities 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 crime, but the charges were dropped by the prosecution or you were acquitted at trial;
  • You benefitted from a diversion program or a resolution that allowed you to avoid conviction or execution of a sentence based on the satisfaction of conditions imposed by the court;
  • You were involved in a plea agreement in which you 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, however, 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 up 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 prove at trial in order to pressure a defendant to plead guilty to a lesser charge. It is also common for plea bargains to include complex resolutions in which a defendant pleas to the elements of a more serious crime, but the conviction is downgraded or vacated altogether upon successful completion of probation or other conditions.

Most of these adjustments will show up in comprehensive court records if you know how to look for them, but they are not clearly discernable from the limited information that is included in police records. The result is a criminal record system full of charges listed without specific resolutions, which even US lawyers and judges often struggle to interpret precisely.

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

It is up to you, therefore, to provide additional information and documents that clear up the ambiguity. To do that, it is first important that you understand what happened. If you aren’t sure, you can:

  • Talk to the lawyer who represented you in criminal court. Lawyers – whether they are public defenders or private counsel — are required to keep 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 available, and even when they are not public, you have a right to the full record of proceedings in which you were the defendant. Clerks are often overworked, so it’s best to be polite – and as specific as possible – when requesting documents.
  • Hire a lawyer who is qualified to help you acquire the right documents and interpret them for the Canadian authorities. IRCC and CBSA officers are (usually) happy to have a roadmap to help them understand what they are looking at so that they can come to the right legal conclusion about your admissibility. Where there is any uncertainty, it can be helpful to hire a US 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 police records.

Bottom line: take this seriously to avoid bad decisions and/or costly delays

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

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

The US criminal records system is confusing. With some care, and with the advice of good counsel, you can take control of this process.

Randall Cohn is licensed to practice in British Columbia and in the US states of Washington and Minnesota. Before moving to Canada, he was a criminal defence lawyer at the Hennepin County Office of the Public Defender in Minneapolis.