Petty Offense Exception Waiver

[Infantry Grunt 0]

My wife was charged with shoplifting under 5000 8 years ago in Canada at the age of 19. She received diversion for making a hundred dollar donation, but the maximum sentence possibly was originally 2 years in prison. Lowest possible sentence for the charge. The shoplifting charge apparently falls under moral ineptitude, grounds for denial. The terms for the waiver says the maximum possible sentence could not have exceeded a year, and no more than 6 months could have been served. Does this deny us a possible waiver? I find it assenine, as the charge is that old and she's had a crystal clean record since. It doesn't even appear of a copy of her charge sheet. What are the possibilities here? How do you go about getting the waiver?

[Infantry Grunt 0]

here are the details from Act 212 of the Immigration and Naturalization Act:

2) Criminal and related grounds.-

(A) Conviction of certain crimes.-

(i) In general.-Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense or an attempt or conspiracy to commit such a crime), or

(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible.

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

[Infantry Grunt 0]

she says she never plead guilty or innocent, never said a word, that the lawyer went up, did his thing and they say diversion. She's also saying if her offense is summary it's 6 months max, inditable is 2 years. I'm looking at copies of the records. Neither box is checked. Also, there is no box checked for sentencing, just the 'Stayed R/C Diversion'. So officially she never entered a plea, never received a judgement, even though there is a judge signature on the document. She was never technically charged. So how do we go about determining what's what?

If they try to deport after 8 years, with a clear record after, and my service to the country, I'll throw a fit

[canadian_wife 1,827]

Have your wife do a criminal records check. Was she ever fingerprinted when she shoplifted?

Go to your local police station and have her get a name check maintained by the "National Criminal Records Repository" maintained by the RCMP (that is IMPORTANT for immigration reasons) and she what comes up

Have you already sent in the petition?

[Infantry Grunt 0]

the record is clean after the diversion. have not sent petition

[canadian_wife 1,827]

Well, you can always send the petition and disclose the event (failure to do so can result in much more devastating consequences) and wait

Good luck

Edited May 3, 2009 by canadian_wife

[rebeccajo 14]

My wife was charged with shoplifting under 5000 8 years ago in Canada at the age of 19. She received diversion for making a hundred dollar donation, but the maximum sentence possibly was originally 2 years in prison. Lowest possible sentence for the charge. The shoplifting charge apparently falls under moral ineptitude, grounds for denial. The terms for the waiver says the maximum possible sentence could not have exceeded a year, and no more than 6 months could have been served. Does this deny us a possible waiver? I find it assenine, as the charge is that old and she's had a crystal clean record since. It doesn't even appear of a copy of her charge sheet. What are the possibilities here? How do you go about getting the waiver?

First you have to figure out if this is even a crime or moral turpitude. Cut and paste this into your browser:

www.state.gov/documents/organization/86942.pdf

And read up at immigrate2us.net just to be certain.

[Ontarkie 14,419]

I can tell you what happend with mine long storey short I had a similar issue. Shoplifting and I received a conditional discharged so no records show up when I do a background check/RCMP fingure print check and such. Had to track down my court record.

She has to mark done yes to the questions of ever being charged cause well she was, and then she also has to answer yes to the question for the moral turpitude. So answer yes to all those types of questions. She mostlikely wont need waiver, I never did. But she will need the actual court record. They will not issue the visa without it. Also she will have to make sure she gets the full fingure prints with the RCMP with any previous names used.

When I had my interview the lady was very nice did'nt give me a hard time or anything. Also she thanked me for being honest about the shopelifting.

Hope that helps a bit

Danielle

Edited May 3, 2009 by Ontarkie

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first question...what was asked at the interview relating to the charge?

second...she had no plea, it was pre-plea diversion. should she admit only to the charges or are they looking for her to basically to admit to guilt?

[Ontarkie 14,419]

I never had a plea either they automatically count it as a guilty plea as far as I know.

As for what questions was asked I was asked to tell them what happened I walked out of Zellers after a long day with a 18mos old and 38weeks pregnant and simply forgot about what was in the buggy.

I dont think they really care if she was guilty or not just that she is a good person now and what the court record says.

Edited May 3, 2009 by Ontarkie

[Infantry Grunt 0]

good person now...how do you go about proving that? the police record that was clean since then? I know the law says innocent until proven guilty, so to assume otherwise is a violation of rights

we have the police record that has no plea checked whatsoever, nor if it was even summary or indictable.

[Ontarkie 14,419]

ya its messed up, you do need a current criminal record check with the RCMP fingure prints nothing else will do (not sure if you have it and also can't be more then 1yr old by the time the Interview is in montreal). Now when you say you have the police record are you actually looking at the record from the police station where she was arrested at, or the actual record from the Court House itself.

[Ontarkie 14,419]

Ok wanted to delete what I just posted but i was too late I'll be back need to go read the exact wording of the forms for Montreal. But I think she will still have to mark yes to the 2 question about it. BRB

[Ontarkie 14,419]

Ok from what I read on the Monteal forms that she will have to fill out, the way its worded she will have to answer yes for the questions. They don't care if charges were diverted, drop clear or whatnot. You have to list em.

I also looked up the Canadian law concerning diversion and she would of signed a paper admitting to the charge of shopelifting in order to recieve the diversion, the guilty plea that you say never happend it happened but behinde closed doors so to speak its the only way she would of been given the diversion. Then she pays the fine/donation that they aggreed apon. After she follows the agreement she gets clean slate no record as you see it now.

She has to mark the charge on the forms for Montreal bring her court paper and the nice clean fingureprint check from the RCMP, she will tell them exactly what happend she got a pre plea diversion, show her papers and she should be fine I really doubt they would make her get a waiver.

[Infantry Grunt 0]

thanks