Ganja conviction impeding immigration

DEAR MRS MACAULAY,

I am a Jamaican who in 2012 had a marijuana charge for a joint. I went to court and paid the $100 fine. I am now married to a US citizen. I went through the entire embassy process, and when asked about arrests, I was honest and said yes. I obtained a police record that says “not in the database”. I was asked to go to the courts to provide papers for my situation in 2012. After doing so, I was denied entry into the United States with reasoning that one cannot enter that country with a conviction. What can I do now?

The short answer to your question about what you can do about your record of conviction, on the face of it, is that you ought to apply to have your conviction expunged pursuant to the Criminal Records (Rehabilitation of Offenders) Act 1988 as amended by Act No 12 of 2014.

I am not certain why you were told to go to the court where your trial occurred after your records search resulted in the answer that nothing was found on your record in the database. Who told you to go to the court? Why did they do so? Your record was clear and that should have been the end of it.

When you attended your trial or after your conviction, did the judge order your fingerprints to be taken and then the $100 fine was imposed? Were your fingerprints taken at any time at all for the offence and conviction? If they were not ordered to be taken by a judge, they could not have been taken, and if they were not, that conviction would not have been recorded in the Criminal Records Office. Judges must decide whether or not a person accused of an offence is to be fingerprinted or not, and if this is done before conviction, it can be ordered that the fingerprints taken should be destroyed when the person is acquitted or is only found guilty of a much lesser offence. It seems to me that there was no order for you to be fingerprinted and therefore you were not, which is why nothing was found about you in the Records Office database.

When you went and obtained the court records of your charge, conviction and fine in 2012, you proved the basis for the refusal of your entry. You see, in 2012 and thereafter until Act No12 was passed and came into effect on the October 2, 2014, your conviction for a joint and payment of a fine for $100 would have carried a rehabilitation period of three years before you would qualify to be able to apply for the conviction to be expunged from your record.

However, Act No 12 of 2014 kept this three year period for sentences which do not include a term of imprisonment — just like yours. So you could, under the original Act and still under the Act as amended by Act No 12 of 2014, which became operational on the October 2, 2014, have made your application to the Criminal Records (Rehabilitation of Offenders) Board for the expungement from the records of your spent conviction. That is to say, if your conviction was recorded in the Records Office. Whatever is the case, your conviction would have become spent after three years passed from the date of your conviction and the payment of your fine. This would have been in the third anniversary in 2015.

Act No 12 also provides that for an offence such as yours, possession of ganja, for which you were sentenced to a fine below $1,000, you as the specified person, from the date this Act came into effect, shall be entitled to your conviction being expunged, whether or not the three years specified in the Act as the rehabilitation period had expired or not. So you could have applied from October 2, 2014 to the board to have your conviction record expunged. The Act makes clear that once the board is satisfied that your conviction was for possession of ganja and your sentence was only for $100, it must issue its direction that your conviction be expunged from the records. This direction and expungement will mean, for all legal purposes, that you must be deemed as a person who has never been charged with, prosecuted for, convicted of, or sentenced for the offence of which you were convicted. In other words, you would become just like a person who was never, ever charged and convicted.

You will need to gather the documents which you got from the court about your charge, conviction and sentence, and evidence that you paid the fine. You must also get again the copy of your record from the Criminal Records Office. These documents must accompany your application to the board.

I suggest that you retain a lawyer to assist you to make the application as is specified in the Act, so that it can be smoothly processed. The board, the Act says, must inform you of the result of your application and it must address its direction to the head of the Records Office and I would suggest in the circumstance you relate, as not being in that office’s database, then to the senior judge at the now parish court in which you were convicted, so that their records can be expunged.

I say this as it seems to me that the only record of your conviction and sentence is in that court’s office records.

I trust that I have clarified the situation for you and you can go forward and have your conviction expunged so you can re-apply for entry to the USA to join your wife there and proceed with your full and settled married life.

All the best wishes.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.