Just a bit confused.

[Pliskin 0]

Hello. I am a US citizen and my wife is CDN.

She was previously married to a USC and lived in the US for approx. 5 years with her perm resident card.

Her mom had a stroke, she came back up to Canada to look after her and help out, that turned into much longer than anyone anticipated and her and her ex's marriage fell apart. She started her life again in Canada.

In 2004 she was convicted of a crime in Canada. She got a conditional sentence, no jail time and 15 months probation. Since then, she has been in no other legal trouble.

In 2006 she was at a POE and was denied entry because of (this I am not 100% sure of) either her conviction OR the fact that she "abandoned" her US status. At any rate, she was put in removal proceedings, retained a lawyer, attended her hearing and gave her green card back.

Since then, she has successfully(as a CDN citizen) crossed into the US many times, she keeps her court document from the removal hearing with her but has never been asked for it, nor has her conviction ever been brought up by the POE guards.

Ok so fast forward to now...we are married, and in the process of applying for CR-1. We have an immigration attorney, she is aware of all of this (she represented my wife at the removal proceeding). My wife has gotten her RCMP fingerprint criminal record check - and that conviction does NOT show up on it, it's clear. My wife questioned the RCMP officer, he said because it was conditional, and that she met all the conditions and didn't get into any other trouble, that it "fell off" her record.

Here's my questions:

Do you think my wife's previous conviction will result in our application getting denied?

Does she need a waiver? If it's "off" her record?

Thanks for any suggestions/information anyone can provide.

[Audy_Rob 26]

Here's my questions:

Do you think my wife's previous conviction will result in our application getting denied?

Does she need a waiver? If it's "off" her record?

Thanks for any suggestions/information anyone can provide.

When it comes to the forms for applying for the Visa, form DS-156 asks,

"Have you ever been arrested or convicted for any offense or crime, even though subject of a pardon, amnesty or other similar legal action?" - She will need to answer yes.

Next:

Have you ever been refused admission to the U.S. or been the subject of a deportation hearing, ..." - She will need to answer yes.

Additionally she might need to answer Yes to another question or part of a question depending on the crime for which she was convicted.

Good Luck.

[Pliskin 0]

I just called her and asked her to read to me what her removal proceedings paperwork said...

ORDER OF THE IMMIGRATION JUDGE - "This is a summary of the oral decision entered on today's date. This memorandum is soley for the convience of the parties."

And at the bottom is checked "Other: Withdrawal of application for admission to US granted"

That's a removal order, correct?

She was convicted of a theft under $5000 I believe.

Thanks again for your help.

[coraliesolms 47]

It will come up at her interview. She will need to answer honestly. As to it making her inadmissable, Im not entirely sure. If they have let her cross the border a few times, then I assume its ok. At her interview though, she will have to take proof that she has completed her "sentence". Good Luck!

I would seriously think about bringing an immigration attorney onto your application though. Just in case.

[emt103c 10]

I am pretty sure she is going to need an I-601 waiver for the theft, but probably not a 212, as it does not seem that she was necessarily deported. She really does need to consult an attorney. These two websites will be quite helpful to you:

FAM CIMT guidelines

immigrate2us.net

Edited April 18, 2010 by emt103c

[Pliskin 0]

I've been researching everything I can on this issue online and I found this...

Summary Convictions Under Canadian Criminal Law. A Canadian citizen who has a single conviction involving a crime of moral turpitude may not be inadmissible if the conviction was by "summary judgment" and not by "indictment." Under Canadian law, certain offenses may be treated by the court as summary convictions. A summary conviction in Canada carries a maximum term of imprisonment of six months. Therefore anyone with only one conviction, when it is a summary conviction for a CIMT, is not inadmissible to the U.S. This exception applies to only one CIMT conviction. If the person has more than one summary conviction, they are inadmissible and must apply for a waiver. It should be noted that the exception applies only to CIMT's and not to any type of drug convictions.

The burden of proof is always on the person to show that he is admissible. When it is known that the person has a conviction, they must provide evidence that the conviction was treated summarily. Acceptable proof of summary conviction will include a criminal record, showing the code section of a summary conviction, or court records showing that the alien was summarily convicted.

Absolute Discharge, Conditional Discharge, and Canadian Pardon. Absolute discharges for all crimes are not convictions for the purposes of U.S. immigration law. This includes all CIMT's and all drug-related charges as well.

Conditional discharges are convictions for purposes of U.S. immigration law, even though in the eyes of the Canadian government they are not convictions. This includes conditional discharges for all offenses, CIMT's and drug-related offences. Conditional discharges are granted for convictions handled both by summary conviction and as indictable offenses. So a conditional discharge for an indictable offense renders the person inadmissible, but a conditional discharge for a single CIMT offense convicted summarily will place the person within the exception, and the person is otherwise admissible.

I asked her for the exact wording of her court docs -she told me it was a conditional discharge on a summary judgement. I think this is what the above covers, yes?

[Sweetcheeksss 91]

Seems to me that what you posted covers your wife's theft conviction, assuming she only had one and was a summary conviction but perhaps someone else could weigh in on this too because the legal side of all this really makes my head swim lol.

Good luck though.

[emt103c 10]

You need to do a legal consultation. Notice the wording in what they have written, ". . .may not be inadmissible." Also, I'm going to link what appears to be your source. A lot of us here like to research. . . if you post the source link it makes it easier for us to participate.

http://www.serottelaw.com/index.php?submenu=Cross_Border_Issues_and_Inadmissability&src=gendocs&ref=Cross_Border_Issues_and_Inadmissability&category=Services

[Pliskin 0]

Yes that is the website that I got the quote from, I apologize for not posting the link, I didn't even think to do that.

We have an immigration attorney already helping us on our journey so I guess the smartest thing to do would be to ask them (tho, I am reasonably sure that the attorney is aware of her conviction, this same attorney represented her at her hearing at the border when my wife gave back her green card and

her withdrawal of application for admission to US granted by the court.)

And our attorney hasn't mentioned ANYTHING about filing a waiver when she asked us for our supporting docs for our CR-1 application.

An oversight/incompetence on our attorney's part do you think?

Sorry to be obsessing, we just want to start the waiver *if* we need it but we don't want to pay the $545 if we don't need to...

[coraliesolms 47]

Seems to me like it would be ok.. just make sure she has all the court documents that show show she was discharged of the crime. It will most likely come up at her interview, and she will most likely need to prove that she is done with it.

Mention it to your attorney again though, just to be sure.

[emt103c 10]

Yes that is the website that I got the quote from, I apologize for not posting the link, I didn't even think to do that.

We have an immigration attorney already helping us on our journey so I guess the smartest thing to do would be to ask them (tho, I am reasonably sure that the attorney is aware of her conviction, this same attorney represented her at her hearing at the border when my wife gave back her green card and

her withdrawal of application for admission to US granted by the court.)

And our attorney hasn't mentioned ANYTHING about filing a waiver when she asked us for our supporting docs for our CR-1 application.

An oversight/incompetence on our attorney's part do you think?

Sorry to be obsessing, we just want to start the waiver *if* we need it but we don't want to pay the $545 if we don't need to...

You need to start evaluating your attorney in the light of waiver experience and complicated cases. Not all immigration attorneys know the waiver world well. Try to ask the right questions, show her the quotes you mentioned and flat out ask if she thinks you're going to need a waiver, and then, do a second opinion (and a third. . .) to see if they all agree. You will often find different opinions from different attorneys, and surpises at the consular interview are not good.