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Old 09-12-2014, 02:22 PM   #1  
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Default Legal issues

I have a friend, that was given a withheld judgement for a felony charge. If he successfully completes his probation. The charges will be dismissed.

He has asked me if I know is it completely out of the question for him to become an airline pilot? I know part of the ATP is to have good moral values.

I told him I would look into it for him. Any feedback would be great.

Such as the airlines background check process, and how far back they look, etc.

Thank and happy flying!
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Old 09-12-2014, 02:52 PM   #2  
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And by friend you mean you :)
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Old 09-12-2014, 02:54 PM   #3  
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Never believed in practicing law without a license. That said your friend should, once again, seek legal council.
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Old 09-12-2014, 02:55 PM   #4  
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No, not for me.
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Old 09-12-2014, 07:24 PM   #5  
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Quote:
Originally Posted by ccstemberg View Post
I have a friend, that was given a withheld judgement for a felony charge. If he successfully completes his probation. The charges will be dismissed.

He has asked me if I know is it completely out of the question for him to become an airline pilot? I know part of the ATP is to have good moral values.
The FAA rarely seems to enforce the good moral character clause. I would imagine that would require a serious felony conviction, or a lengthy criminal history.

If this is some sort of pre-trial thing it should not affect one's ability to hold an ATP or pilot cert. It might affect your ability to hold a medical if it was substance related like a DUI. Also actual criminal convictions could cause the FAA to deny a medical based on psychiatric grounds, but I doubt anything short of felony conviction(s) for intentional crimes would trigger that, ie theft, fraud, violence, etc.


Quote:
Originally Posted by ccstemberg View Post
Such as the airlines background check process, and how far back they look, etc.
The background check is complicated, do a search here on APC. Some airlines ask only about convictions, others may ask about arrests. But the conventional wisdom is to be honest, even if you think they won't find out about a non-conviction incident...unlike most civilian employers they get to look at the FBI's database which includes arrests for serious crimes.

Also the TSA has certain standards, but you would need actual convictions to have an issue there. Their rules are straightforward.

Lawyer advice is usually a great idea, but in aviation you have to be careful...if you talk to a generic labor lawyer he may tell you that you don't have to report certain things and that employers will never find out. Unfortunately the usual rules do not all seem to apply precisely to airlines, and sometimes airlines might bend the rules to avoid hiring someone with "issues". If you talk to a lawyer about employment issues, make sure they have airline experience.
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Old 09-12-2014, 11:37 PM   #6  
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Default Felony Convictions

I agree that it depends a *LOT* on what the felony was and the circumstances.

Yes, the ATP requirements do reference good moral character, so that is one hurdle to pass.

A DUI is not normally a felony unless it involves death, serious bodily injury, or is a multiple infraction -- usually three or more. A DUI is not prohibitive from holding an ATP. However, it must be reported promptly to the FAA, of course.

To me, regardless of getting the ATP, to be able to be hired by an airline requires a pilot be qualified to work inside the SIDA (Secure Identification Access Area). FAR Part 107.209d is very specific about a long list of convictions that prohibit a person from being eligible for SIDA access for ten years after a CONVICTION. So if a person is convicted of any of those crimes, it becomes an issue. *Note: It doesn't say it's okay that you are convicted and then it is okay if it is dismissed. Once he is convicted, he is convicted. And the question is "were you ever convicted of", not "are any convictions still showing on your record". Not sure if they could see the crimes once they are dismissed from your record, but it might show up somewhere.

To quote 107.209d:

(d) Disqualifying criminal offenses. An individual has a disqualifying criminal offense if the individual has been convicted, or found not guilty of by reason of insanity, of any of the disqualifying crimes listed in this paragraph in any jurisdiction during the 10 years before the date of the individual's application for unescorted access authority, or while the individual has unescorted access authority. The disqualifying criminal offenses are as follows—
(1) Forgery of certificates, false marking of aircraft, and other aircraft registration violation; 49 U.S.C. 46306.
(2) Interference with air navigation; 49 U.S.C. 46308.
(3) Improper transportation of a hazardous material; 49 U.S.C. 46312.
(4) Aircraft piracy; 49 U.S.C. 46502.
(5) Interference with flight crew members or flight attendants; 49 U.S.C. 46504.
(6) Commission of certain crimes aboard aircraft in flight; 49 U.S.C. 46506.
(7) Carrying a weapon or explosive aboard aircraft; 49 U.S.C. 46505.
(8) Conveying false information and threats; 49 U.S.C. 46507.
(9) Aircraft piracy outside the special aircraft jurisdiction of the United States; 49 U.S.C. 46502(b).
(10) Lighting violations involving transporting controlled substances; 49 U.S.C. 46315.
(11) Unlawful entry into an aircraft or airport area that serves air carriers or foreign air carriers contrary to established security requirements; 49 U.S.C. 46314.
(12) Destruction of an aircraft or aircraft facility; 18 U.S.C. 32.
(13) Murder.
(14) Assault with intent to murder.
(15) Espionage.
(16) Sedition.
(17) Kidnapping or hostage taking.
(18) Treason.

(19) Rape or aggravated sexual abuse.
(20) Unlawful possession, use, sale, distribution, or manufacture of an explosive or weapon.
(21) Extortion.
(22) Armed or felony unarmed robbery.
(23) Distribution of, or intent to distribute, a controlled substance.
(24) Felony arson.
(25) Felony involving a threat.
(26) Felony involving—
(i) Willful destruction of property;
(ii) Importation or manufacture of a controlled substance;
(iii) Burglary;
(iv) Theft;
(v) Dishonesty, fraud, or misrepresentation;
(vi) Possession or distribution of stolen property;
(vii) Aggravated assault;
(viii) Bribery; or
(ix) Illegal possession of a controlled substance punishable by a maximum term of imprisonment of more than 1 year.
(27) Violence at international airports; 18 U.S.C. 37.
(28) Conspiracy or attempt to commit any of the criminal acts listed in this paragraph.

I agree that your friend needs to seek qualified legal counsel.
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Old 09-13-2014, 09:06 AM   #7  
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I neglected to mention another concern for convicted felons: entry into Canada. Since many airline pilots need to be able to fly freely into Canada, this becomes an issue for the employer to consider. I don’t know of any other countries that have a law as particular as Canada.

Where the issue arises most often these days is due to prior convictions for DUI in the states which is more harshly punished in Canada. I posted this info on another thread about DUI’s related to flying, but it certainly also applies in this situation.

History: After 9/11, the Canadian Parliament wrote legislation that would restrict the entry of people into Canada that might pose a threat to society. Besides terrorists and people who might be a health risk to the public or financial burden to the state, it includes a clause related to past criminal activity. The way the wording is written, even a single DUI that is a misdemeanor in the U.S. could be reason for denial or entry. Certainly, I would imagine that many offenses that are felonies in the U.S. would also apply. The law was called the Immigration and Refugee Protection Act and went into effect on January 1, 2003.

The specific paragraph of the law is in Division 4 (Inadmissibility), Paragraph 36 (Serious Criminality). It reads:

Serious criminality

  • 36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
    • (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;
    • (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or
    • (c) 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 offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.
  • Criminality

(2) A foreign national is inadmissible on grounds of criminality for
    • (a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;
    • (b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;
    • (c) 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; or
    • (d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.
  • Application

(3) The following provisions govern subsections (1) and (2):
    • (a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily;
    • (b) inadmissibility under subsections (1) and (2) may not be based on a conviction in respect of which a record suspension has been ordered and has not been revoked or ceased to have effect under the Criminal Records Act, or in respect of which there has been a final determination of an acquittal;
    • (c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated;
    • (d) a determination of whether a permanent resident has committed an act described in paragraph (1)(c) must be based on a balance of probabilities; and
    • (e) inadmissibility under subsections (1) and (2) may not be based on an offence
      • (i) designated as a contravention under the Contraventions Act,
      • (ii) for which the permanent resident or foreign national is found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or
      • (iii) for which the permanent resident or foreign national received a youth sentence under the Youth Criminal Justice Act.
You can apply for temporary or permanent permission to travel to Canada regardless of the prior conviction. The Canadian officials may or may not approve the permit, depending on the offense and other factors. Without a permit, Canadian Customs and Immigration officers still have some discretion in who they admit. Attempting entry is a roll of the dice unless you have processed the required paperwork. Border officers are pretty strict about "recent" offenses (less than 5 years ago) but MAY be more lenient about distant offenses.

You will need to fill out the Temporary Resident Permit (TRP) application (IMM Form 5257) and process it before traveling to Canada. It can take up to six months to process a TRP. A TRP application is only valid for ONE YEAR, so if you go this route, you will need to keep applying for a new permit every year. It's not the best solution for a professional pilot who needs regular uninhibited access in and out of Canada. However, if your offense (and any probationary period) is less than five years old, this is the ONLY way to obtain permission for entry.

The law adversely affected Canadian tourism. Consequently, on March 1, 2012 Canada issued a new policy which may allow U.S. travelers into the country despite having a criminal conviction on their record. The policy was implemented as part of Canada‘s “Tourism Facilitation Action Plan” (TFAP).

Under the new policy, U.S. citizens traveling to Canada MAY be allowed across the border if:
  • They have only a SINGLE criminal conviction on their record and;
  • They were not sentenced to any jail time for that conviction
This law allows the $200 processing fee to be waived but you still have to fill out the TRP. It is suggested that this is done in advance but can be submitted upon arrival at the border.

Customs and Immigrations officers have access to U.S. criminal databases, so your passport will likely flag your identity if you have criminal issues. Lying on the TRP application may cause you to get barred from entry into Canada for a very long time. (See Paragraph 40 of the act – Misrepresentation.)

From the Canadian government website, "a temporary resident permit lets you enter or stay in Canada if:
  • it has been less than five years since the end of your sentence or
  • you have valid reasons to be in Canada.
If you have a valid reason to travel to Canada, but you are inadmissible, we may issue you a temporary resident permit. An immigration or border services officer will decide if your need to enter or stay in Canada outweighs the health or safety risks to Canadian society"

Customs and Immigration will review the application and make a determination based on:
  • The nature of conviction
  • The date of the last conviction
  • What type of sentence you were given
  • Your reason for the travel to Canada
If you meet the criteria, you may apply for a PERMANENT Permit showing you have been "rehabilitated." If you choose this route, buckle your seat belt. You’re in for a long, bureaucratic process that may or may not grant you permission. Once again, from the Canadian government website:

"You can apply for individual rehabilitation to enter Canada. The Minister, or their delegate, may decide to grant it or not. To apply, you must:
  • show that you meet the criteria*, (*note: see this link for details)
  • have been rehabilitated and
  • be highly unlikely to take part in further crimes.
Also, at least five years must have passed since:
  • the end of your criminal sentence (this includes probation) and
  • the day you committed the act that made you inadmissible."
The application for permanent entry is called an "Application for Criminal Rehabilitation" (IMM Form 1444). The documents checklist (IMM Form 5507) details all the extensive information you must gather and submit with your application. It's a lot to do, involving a national FBI certificate (background check) as well as "Police Certificates" from anywhere you've lived for at least six months since age 18. And, you also submit complete official court records from your criminal past. The basic fee for processing this application is $200 Canadian (a little less U.S.D.) If the offense(s) are serious enough to be elevated to the Minister for approval, the fees can rise to $1000 Canadian (a little less U.S.D.)

http://www.cic.gc.ca/english/pdf/kit...s/IMM1444E.pdf
http://www.cic.gc.ca/english/pdf/kit...s/IMM5507E.pdf
http://www.cic.gc.ca/english/pdf/kit...s/IMM5310B.pdf

Obtaining a Police Certificate:
How to obtain a police certificate - United States

There are Canadian Visa offices in the U.S as well as regional Consulate offices. Either or both of them may be helpful in answering questions, obtaining the required documentation, and processing forms.

(Consulate Offices are in Atlanta, Boston, Chicago, Dallas, Denver, Detroit, Houston, Los Angeles, Miami, Minneapolis, New York, Philadelphia, Raleigh, San Diego, San Francisco, Seattle, and Washington DC.)

Canadian Consulates in the United States » ezbordercrossing.com

There are even more Visa application offices. See this link for more information.

Find your closest visa application centre
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Old 09-13-2014, 09:24 AM   #8  
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The final hurdle I see for your friend, besides

(1)avoiding elimination on the ATP application for moral character,

(2) passing the FAR 107.209d requirement for SIDA access, and

(3) dealing with the Canadian travel issue

... would be whatever Human Resources / Employee Policies are in effect with a given employer.

Some companies are pretty strict about past criminal activity. Most write their policies very strictly but may not be so strict in application to a given situation. It gives them some flexibility. I think a lot of them, however, are willing to overlook an offense depending on what it was, when it occurred, if the person is HONEST about it, and if he appears to have learned from his errors and chosen a different direction for his life.

He just needs to realize that regardless of whatever career track he pursues (airline or other), that his past mistakes may continue to haunt him for a long time as part of the consequences of his bad choices. Eventually, he can recover from it but it will take years of good behavior to demonstrate that he has changed. Maintaining a positive attitude about it may be difficult but is critical so that when the topic comes up it can be dealt with in a constructive way.
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Old 10-24-2014, 05:10 PM   #9  
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Quote:
Originally Posted by ccstemberg View Post
I have a friend, that was given a withheld judgement for a felony charge. If he successfully completes his probation. The charges will be dismissed.

He has asked me if I know is it completely out of the question for him to become an airline pilot? I know part of the ATP is to have good moral values.

I told him I would look into it for him. Any feedback would be great.

Such as the airlines background check process, and how far back they look, etc.

Thank and happy flying!
If the charges are dismissed, there is no "conviction" from a purely legal standpoint. But, your friend must ensure that, however the prosecutor/DA chooses to drop the charges, the judge enters a Final Order to that effect. You will likely need a copy of that dismissal order for a while to prove exoneration of the charges. Good luck.
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Old 10-24-2014, 08:41 PM   #10  
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Even without a conviction, a record will exist of the arrest as entered into the national crime information computer, and will come up during a background check.

I know an individual flying international 121 that shot someone. I know others with various convictions. These are not necessarily show stoppers, but one would be very remiss not addressing the matter with legal counsel.

If your friend is involved with AOPA, a legal plan exists for a very low amount which provides some relief in locating and obtaining counsel no such matters. Fifty bucks or so to joint, then about a hundred bucks a year for the professional level of the legal plan. Very well worth it, especially after AOPA increased the scope of the coverage several years ago.
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