Is Spousal Assault an Excludable Offence to the United States?

I have been processing waivers for over 25 years.  It used to be that spousal assault was determined to be an excludable offence if one of the following conditions occurred:

• the offence was tried by indictment; or
• the person in question had 2 or more spousal assaults.

When I refer to spousal assaults, I am referring to simple assault or common assault, which is currently section 266 of the Criminal Code of Canada (in prior years sections could have been different).  This ‘fact’ was based upon a written internal memo I had once received from a U.S. Port Director.  Therefore, if a person had only one spousal assault and it was tried summarily, they would NOT need a Waiver for legal entry to the United States.

Was Homeland Security Wrong to Interpret Spousal Assault as an Excludable Offence?

Traveling to the United States with Common Assault

For years, inadmissibility regarding spousal assault was common practice.  Individuals with such offences were routinely denied entry to the United States and  instructed to obtain I-192 Travel Waivers which helped them overcome their inadmissibility and gain legal entry to the United States.  If you were denied entry to the United States and subsequently applied for a Waiver as instructed, if the granting office determined that the refusal and instructions to obtain a Waiver was in error, often the granting office (currently called U.S. Customs and Border Protection, located in Herndon, VA United States) would issue a non-inadmissibility letter advising that the person was in fact NOT inadmissible based upon the information provided.  No such letters were provided at the time, thus confirming the opinion of the Port Director, from whom I received the internal memo that confirmed the opinion of Homeland Security regarding spousal assault and inadmissibility.

Deportability vs Inadmissibility

I’ve estimated that around 2003, it was determined that spousal assault was in fact NOT an excludable offence.  The element of intent to cause harm was missing.  This means that a person with spousal assault (ie. common or simple assault) was no longer excludable.  Previously, only spousal assault was of concern.  If assault did not involve a spouse, provided it was common or simple, it was never of concern to US authorities.  A court ruling determined that if it was common or simple assault, it did not matter whether or not it involved a spouse.  All common assault or simple assault are treated the same.  You do not need a Waiver of Inadmissibility for Non-Immigrant to visit the United States.

How did U.S. authorities err in determining inadmissibility?  I believe the reason is spousal assault disqualifies immigrants from living in the United States if it occurred within a period of time of that person taking residency or applying for residency.  Therefore, U.S. authorities confused the issue of deportability for immigrants with inadmissibility for non-immigrants.  Spousal assault is ONLY problematic for immigrants.  It is not of concern for non-immigrants. 

Are Assault Offences (including Spousal Assault)  Crimes Involving Moral Turpitude?

The following posting is another explanation of inadmissibility for non-immigrants.  Remember, when researching this topic, you need to be clear as to whether you are reading laws for immigrants or for non-immigrants.  This particular article is related to non-immigrants.

Summary Ruling of Spousal Assault

I have processed several thousand waiver applications over 25 years, and for many years, spousal assault was a problem.  But, since around 2003, not only has the issue been clarified (common assault or simple assault involving a spouse), I don’t recall having had any clients since that time have any issue regarding travel to the United States with this type of offence.

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