Crushed- CIMT and 601

[charity1214 3]

Well, what I thought would be a smooth Cr-1 process turned into a nightmare. My husband was deemed inadmissible due to his arrest 11 years ago (age 20). We thought having all the papers showing the charge, the community service, the pardon and lack of any future incidents would've given us the "ok" for a VISA but instead, here we are, just dumbfounded (and apparently naive). He was actually given a phone call from the embassy which in itself shocked us. She said that she was very sorry but he was found admissiable under "crime of moral turpitude" and we would need to file a 601 waiver. She told him not to worry, just fill it out with a hardship letter and get it sent back ASAP while they waited for his Holland Police Certificate (which they still hadn't received yet and were waiting on). She told him that the sooner he did that, the sooner he could be united with his wife.

But at the risk of getting hopeful, i immediately started doing research and now I'm in tears. Everything I read indicates our chances are low and that we'd be foolish not to get a lawyer. There is NO WAY we can afford a lawyer and I can barely come up with "extreme" hardship reasons. I am a single mother and because I tried to make good decisions for my children and I, and because my husband still lives in Canada, we really do not rely on each other for financial support (to use finances as a reason). Obviously I was supporting my family alone when I met him and continue to support myself. We comingle finances for the sake of saving for immigration costs and travel costs to visit each other, but I do not rely on him to live, nor vice versa. I have no medical condition, and neither do any of my children. While I do have sole custody of them, and their father has visitation rights, we have no paperwork forbiding me from moving out of the Country (although, he would certainly put up a fight if I tried). I'm not pursuing additional education at this time because my children are still young and in school, so I can not use that either.

So my questions are these:

1) Realistically...1 offense, no fine, no jailtime, probation served and pardoned... 11 years with no other incidents... what are the odds they would "forgive" and approve?

2) What angle of "hardship" should I focus on? As far as rehibilitation for him goes, we only have the lack of further problems. He's just been working ever since. He's not some fancy educated PhD, nor humanitarian volunteer, but rather... he's just an honest, hardworker man who was hot-headed as a young adult and made a stupid mistake. Does the US understand this??

3) Timeframe... any idea at all what this waiver would mean for us in time?? the lady on the phone said 4-12 months, but in our case most likely closer to 4. is this lady just giving us a line? Is all her talk of "just file the waiver soon and we'll get this wrapped up" for real?

I know the hurt and disappointment will fade, but right now I feel sick to my stomach and very depressed. I am angry at the young person my husband was 11 years ago, and frustrated that 1 mistake could cost us our future. I am angry that we might put all this time and energy and money that we dont' have into a process that will only end in failure. And then what??

Thank you for reading and commenting.

[charity1214 3]

One other question....

Wouldn't he fall under the Exclusion to the 212(a)(2)(A)(i) Crime of moral turpitude based on:

"

Two exceptions to this ground of exclusion appear in INA 212(a)(2)(A)(ii):

1. The ground does not apply where the alien has committed only one crime of moral turpitude, the crime was committed when the alien was under 18 years of age and the crime was committed (and the alien was released from confinement to prison or a correctional institution imposed for the crime) more than five years before the date of application for a visa or other documentation and the date of application for admission to the United States.
2. The ground does not apply where the alien has committed only one crime of moral turpitude, the maximum penalty possible for the crime for which the alien was convicted or to which the alien admits having committed or of which acts the alien admits having committed which constitute the essential elements of the crime did not exceed one year of imprisonment and, if the alien was convicted of the crime, the alien was not sentenced to imprisonment for a term greater than six months, regardless of the extent to which the sentence was ultimately satisfied."

[Bsze 50]

What was he arrested for? What was the crime?

[Christi85 86]

Sorry to hear about your woes.

If exclusion case (2) applies to your husband's case IN FULL, then it seems like he may not be ineligible for the visa due to the CIMT.

I too would advise you to seek a lawyer's advice though - at the very least he could draft a letter for you stating the above and presenting evidence in order to convince the Embassy that a waiver is not required and that your husband is otherwise eligible for the visa.

Is there no way you can save up for a few hours of consultation? A lawyer who is experienced at filing waivers shouldn't need more than a few hours total to consult with you on your case, advise you on the documents you will need to bring to them as evidence and then drafting the waiver letter itself.

Re the waiver: I am no expert by any means, so I'm only going to offer my opinion based on how you have described your situation. To me it sounds like the strongest point to your favor would be your children's custody and the fact that you wouldn't be able to leave the country and take the kids with you without having to go through the expenses and psychological cost of a legal battle with their father. A competent lawyer should be able to present this in a favorable light with the right type of language to demonstrate hardship.

A couple other ideas (don't know if they apply, but they may help you think more outside the box - you're obviously quite flustered right now):

-How about your children's school? Could there be a particular reason why your children should not move areas or schools? You didn't mention their ages, but for example: does one of your kids excel at a sport their school is very strong at? Or does their school have a strong academic record, so that if they changed schools this could affect their chances of academic progress and/or entry into a good college? You get the point.

-How about your job in the States? Do you perhaps do a specialized job that requires you to be in a certain region to stay employed? Does the region where your husband lives in Canada have available jobs in your sector, or is there a shortage and you would struggle to find something in your field if you moved there? Again, you get the gist.

-Would your husband's income be enough to cover the financial needs of both of you + your children for possibly several months? If you had to move with him to Canada and take your family with you, would all of you be able to live solely off of your husband's earnings until you found a new job for yourself? I assume you'd have to leave your job in the States to move to Canada and be with him.

Like I said, I don't know if any of the above ideas are applicable to you, but try to think outside the box in regards to hardship. I'm sure you'll come up with things that haven't even crossed your mind as potential problems, and an experienced lawyer should also be able to offer a valuable input.

On the positive side, it looks like your case (1 CIMT, years ago, no other record since) should be more straightforward than many other cases, and I have no reason to believe that the CO at the Embassy was fooling around with you when she said you shouldn't have a problem getting the waiver approved.

Good luck and once again, do speak with a good lawyer! It will boost your chances of approval!

[charity1214 3]

Wonderful input! Thank you !! I have looked at the actual code myself and read it over and over. I realize I'm no lawyer but that he does indeed appear to fall under that category of exclusion. The sentence was only community service, it was only 1 offense, and it relates to the CIMT. The parts that relate to my spouse are bolded below....

Sec. 212. [8 U.S.C. 1182]

(A) In general.-Any alien-

(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

<a name="132914dd5b0e5593_0-0-0-2341" title="act212a2AiiII"> (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).

--------------------------------

He had one offense, sentenced only to community service which was complete in the time frame given, was granted a pardon and has had no incidents since (clean police records in both countries he lived in). Does anyone know of any reason WHY he wouldn't be eligible for exclusion? And why wouldn't the embassy tell him he qualified for it if they can see clearly in our Visa application that he qualified?

[charity1214 3]

Sorry to hear about your woes. Thank you.

If exclusion case (2) applies to your husband's case IN FULL, then it seems like he may not be ineligible for the visa due to the CIMT.see my post right before this! I agree!

I too would advise you to seek a lawyer's advice though - at the very least he could draft a letter for you stating the above and presenting evidence in order to convince the Embassy that a waiver is not required and that your husband is otherwise eligible for the visa.

Is there no way you can save up for a few hours of consultation? A lawyer who is experienced at filing waivers shouldn't need more than a few hours total to consult with you on your case, advise you on the documents you will need to bring to them as evidence and then drafting the waiver letter itself. I am going to pay for a consultation and confirm this. I do believe it is worth the few hundred dollars to follow up on this.

Re the waiver: I am no expert by any means, so I'm only going to offer my opinion based on how you have described your situation. To me it sounds like the strongest point to your favor would be your children's custody and the fact that you wouldn't be able to leave the country and take the kids with you without having to go through the expenses and psychological cost of a legal battle with their father. A competent lawyer should be able to present this in a favorable light with the right type of language to demonstrate hardship. Our strongest arguement I believe as well.

A couple other ideas (don't know if they apply, but they may help you think more outside the box - you're obviously quite flustered right now): lol yes i was/am

-How about your children's school? Could there be a particular reason why your children should not move areas or schools? You didn't mention their ages, but for example: does one of your kids excel at a sport their school is very strong at? Or does their school have a strong academic record, so that if they changed schools this could affect their chances of academic progress and/or entry into a good college? You get the point. yes, my daughter was suicidal and self-harming after her father and I's divorce. She was in therapy for awhile and we changed schools. In the last year she has improved tremendously and stopped the negative behaviors and is excelling in behavior and school work (straight A's!) since. I fear uprooting her and moving to Canada would cause her to regress back to her harmful behaviors.

-How about your job in the States? Do you perhaps do a specialized job that requires you to be in a certain region to stay employed? Does the region where your husband lives in Canada have available jobs in your sector, or is there a shortage and you would struggle to find something in your field if you moved there? Again, you get the gist. (I am an administrative assistant with no college degree (only a year away if I returned to school) so it's not specialized unfortunately. Probably not a good argument).

-Would your husband's income be enough to cover the financial needs of both of you + your children for possibly several months? If you had to move with him to Canada and take your family with you, would all of you be able to live solely off of your husband's earnings until you found a new job for yourself? I assume you'd have to leave your job in the States to move to Canada and be with him. No way... he doesn't have a job right now, and can not afford his own place, let alone be able to support me and 4 children. Neither of us have any savings.

Like I said, I don't know if any of the above ideas are applicable to you, but try to think outside the box in regards to hardship. I'm sure you'll come up with things that haven't even crossed your mind as potential problems, and an experienced lawyer should also be able to offer a valuable input.

On the positive side, it looks like your case (1 CIMT, years ago, no other record since) should be more straightforward than many other cases, and I have no reason to believe that the CO at the Embassy was fooling around with you when she said you shouldn't have a problem getting the waiver approved.

Good luck and once again, do speak with a good lawyer! It will boost your chances of approval! Thank you again for taking the time to reply!! I look forward to any more or anyone else's input as well!

[JimVaPhuong 4,863]

What was the crime? Being sentenced to community service satisfies the maximum sentence provision of the exclusion, but we need to know what was the maximum penalty they could have imposed? If the maximum penalty they could have imposed is more than one year then he wouldn't qualify for the exclusion.

[charity1214 3]

What was the crime? Being sentenced to community service satisfies the maximum sentence provision of the exclusion, but we need to know what was the maximum penalty they could have imposed? If the maximum penalty they could have imposed is more than one year then he wouldn't qualify for the exclusion.

How would we find out the maximum he COULD have been imposed with? This is according to Canada law or US Law?

[charity1214 3]

How would we find out the maximum he COULD have been imposed with? This is according to Canada law or US Law?

Ugh, Nevermind... I looked it up and it's 18 months maximum sentence. I have an appointment with a lawyer on Monday for a consultation.

[Sergi9 110]

--------------------------------

[/b]He had one offense, sentenced only to community service which was complete in the time frame given, was granted a pardon and has had no incidents since (clean police records in both countries he lived in). Does anyone know of any reason WHY he wouldn't be eligible for exclusion? And why wouldn't the embassy tell him he qualified for it if they can see clearly in our Visa application that he qualified?

Its not what he was actually sentenced it is if the POSSIBLE sentence was over a year for said crime AND/Or if he served over a year.

Its not uncommon for the Consular section to get this one wrong or have to ask USCIS for an opinion on it, or tell someone they have to get a waiver but when they go through the whole process USCIS tells them they didn't need one and sends it all back to consular.

Problem is the only way to get an "advisory opinion" is to have an attorney request it. So lawyer up if you are sure the possible sentence was under a year. In any case the consular and USCIS is going to want to see Police records and do some research into the exact criminal code in Canada before approving a VISA anyway.

If you need a waiver the previous advice on developing your arguments is pretty good. As far as time the consular was correct, and unfortunately it looks like they will be bringing more waivers to the States for adjudication so that will effect processing time as well. Start working on collecting evidence now.

As for your daughters issues, the hardship has to be to you not her, so make that transisition in your narrative that you fear this will send her into a tailspin and it is a psychological hardship to you to know that you would be causing this trauma to her.

As far as fighting with the ex , not necessary. If you think he would not agree to allow her to live in Canada, just write that letter on his behalf in sworn statement format or affidavit format and get him to sign it, make it easy for him to cooperate.

[charity1214 3]

Its not what he was actually sentenced it is if the POSSIBLE sentence was over a year for said crime AND/Or if he served over a year.

Its not uncommon for the Consular section to get this one wrong or have to ask USCIS for an opinion on it, or tell someone they have to get a waiver but when they go through the whole process USCIS tells them they didn't need one and sends it all back to consular.

Problem is the only way to get an "advisory opinion" is to have an attorney request it. So lawyer up if you are sure the possible sentence was under a year. In any case the consular and USCIS is going to want to see Police records and do some research into the exact criminal code in Canada before approving a VISA anyway.

If you need a waiver the previous advice on developing your arguments is pretty good. As far as time the consular was correct, and unfortunately it looks like they will be bringing more waivers to the States for adjudication so that will effect processing time as well. Start working on collecting evidence now.

As for your daughters issues, the hardship has to be to you not her, so make that transisition in your narrative that you fear this will send her into a tailspin and it is a psychological hardship to you to know that you would be causing this trauma to her.

As far as fighting with the ex , not necessary. If you think he would not agree to allow her to live in Canada, just write that letter on his behalf in sworn statement format or affidavit format and get him to sign it, make it easy for him to cooperate.

Thank you for the input... very helpful. The possible sentence is 18 months so we won't be able to go that route. Regarding your comment about bringing more waivers to the states, do you mean even those that would normally be outside the states?? He is still in Canada, so we were told to send the waiver back to the Consulate in montreal, NOT the states. Can you clarify?

[Sergi9 110]

Thank you for the input... very helpful. The possible sentence is 18 months so we won't be able to go that route. Regarding your comment about bringing more waivers to the states, do you mean even those that would normally be outside the states?? He is still in Canada, so we were told to send the waiver back to the Consulate in montreal, NOT the states. Can you clarify?

Canadian waivers have always been adjudicated stateside in Vermont. What might change soon is where the waiver is filed. Its postulated that later this year waivers will no longer be filed at the Consulate, u might be required to file at a lock box in the states. Keep eye on USCIS Website

I figure since very few waivers currently are adjudicated stateside ie: Canada, and AOS filings with occasional special teams in LA, for central and south america... things will change.

Will processing time significantly change and will it better or worse? Unknown, maybe faster as special teams are set up to handle them maybe slower as this is a new procedure. Just keep an eye on WHERE the correct place to file is and then start tracking blogs that have feedback on processing times to get an idea.

[selrth 1]

Hi. I hope what I am about to tell you will be of some use to you. When my husband was deported they gave him a lifetime bar without knowing the elements of my husband's CIMT before he was deported while in detention. My immigration attorney took his legal documents to a civil attorney, and the attorney took care of everything, and had a judge sign off that my husband's crime is NOT a CIMT, (although it could have very easily been mistaken for one). It's just a matter of how far you are willing to go. So during my husband's deportation literally hours before he got on the plane they "forced" him to fingerprint a document that states that he had a lifetime bar. I took my documents, and wrote a letter to DHS director for this region of the US, and fought hard to get this done, but in about 2 months she personally wrote me back REINSTATING THE 10 YEAR BAR! If you have a REALLY good immigration attorney that will work with a civil attorney to "fix" the CIMT issue as I did you may be able to resolve this. I wrote the letter to DHS without an attorney and sent the documents signed off by the judge and DA for my state, and everything went favorably for us. Anything is possible, but you have to look for EVERY avenue. By the way, some CIMT's are not considered as such in different states. Do the research for your state, and you may overcome this.

[selrth 1]

Also, immigration sometimes goes by state laws when they are unable to make a determination involving CIMT's because some of these crime are walking on a fine line. So when we submitted our 601 and 212, we didn't even need a waiver for it because I already had the proof that it was NOT a CIMT from the judge. I hope my explanation makes sense. I left no room for error for USCIS to tell us that we would need a waiver, or there was none available. My court papers clearly state "THIS IS NOT A CIMT". We just got approved for an expedite 2 days ago, and they will be deciding our case in the next week or so. It's a miracle really, but one that was worked for. From lifetime bar to an approved expedite. FIGHT HARD! Good luck!

[charity1214 3]

We have decided to hire a lawyer and may pursue both angles of defining if it really IS CIMT and also the 601. I'm still disgusted that a 19 year old kid that did something stupid and paid dearly for it 11 years ago can still be considered a threat to the United States. I'm also frustrated that the CO that called my husband to inform him of the denial and advise him to just hurry and file the 601 waiver while we wait for his Holland Police Certificate to come in to "finish this up for him" led us to believe that it was "no big deal" and just a formality. After reading and researching this, I would hardly treat it so 'lightly' as she did. Daily I am torn between thinking "is it really no big deal and we should just do this ourselves and get it back into them" and thinking "holy #######, if we don't hire a good lawyer, we're screwed." I am frustrated that I can't find any good examples that are similar to ours to see if it's fairly procedural or it they really will expect it to show extreme hardship and hopelessness without each other just to wrap this up.

Sorry for the vent, but even though I understand the purpose of the denial and the guidelines by which they use them, I find myself learning more and more that this is a very broken system. People like my husband are NOT the ones the government need to be protecting us from. He could completely help and support 4 wonderful children and be a partner and helpmate to me, but he can't cause he used poor judgement as a 19 year old kid.