Need input to make sure I am understanding Criminally Inadmissibility right :)

[kkramps79 0]

I am hoping a few people can give me some advice. I am USC and my husband is Canadian. His interview for his CR-1 Visa is coming up very soon in Montreal (the 18th of this month).

He does have 2 prior criminal convictions and I was very scared that he would be told he needs a waiver due to this, I assumed that because I had seen others say they needed waivers for very small crimes that were commited YEAARRSSSS ago which got me scared.

Now my husbands 2 convictions were from 2001 & 2002 (when he was 19 yrs old) both of his convictions are for Theft under $5000, the first one was for taking a joyride in someones car and they charged him with theft (we do have the court transcript showing it was a joyride so not a CIMT) and the other was for taking 5 gallons of gasoline from a neighbor. Both were convicted as summary offences and he was not sentenced to any jail time and receievd 6 months probation for the first conviction, just a fine for the 2nd.

Now from what I understand - and this is where I need some input to make sure I am comprehending this right - according to section 212(a) of the Immigration and Nationality Act

(B) Multiple criminal convictions.-Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more is inadmissible.

Now since according to Canadian Criminal Code the MAXIMUM sentence for summary offences is 6 months jail and or a $5000 fine.

Since his 2 convictions don't come close to the 5 years which would make him inadmissible he should be fine.

Am I right in assuming that? So he shouldn't be required to file for a waiver for criminal inadmissibility as far as I understand it.

Anyone elses opinion on this would be great to hopefully back up what I think.

Thank you so much in advance to anyone that chimes in

[Ontarkie 14,542]

Both charges are crimes of moral turpitude, that is what theft is. Did he mark both charges on all forms that asked? Also make sure he has the fingerprint background check, and court records for both charges.

Sorry I don't know more but I will move you post to the Waivers forum.

Edited June 10, 2012 by Ontarkie

[kkramps79 0]

Theft is a CIMT however joyriding is not (Joyriding - Matter of M-, 2 I. & N. D ec. 686 (BIA 1946), is not a CIMT (Section

285(3) of the Criminal Code of Canada)

However I do know that the theft of gasoline is a CIMT.

The reason why I was thinking he wouldn't need a waiver was because it stated that if multiple convictions regardless if CIMT if sentencing can be 5 years or more inadmissible.

Also I did also read in Immigration act it did state that 1 summary CIMT conviction would not make a person inadmissible. I don't know if that goes out the window though with 2 convictions, even if 1 isn't a CIMT.

As far as his fingerprint record check, yes we do have that, we also have court records of both convictions AND a transcript of the court appearance for the 1st conviction (costed us freakin $100 for that sucker lol) just to show that it was a joyride and not actual car theft.

On his DS-260 he did check that he had criminal convictions but in the area to fill in he only listed one - he realized right away he made a mistake and we called NVC to see if we could fix and they told us no but that since we sent in the copy of background check with both crimes listed should not be a big deal at all.

And thank you for moving the thread - still very new here, sorry I stuck it in the wrong area

[Ontarkie 14,542]

Glad you got all the paper work that tends to be the hardest part.

You mentioned two theft charges, that is what you need to know how it it written on the court record.

Theft under $5000 for both or did the courts change the joyride charge to something else, and I don't mean what is in the court transcript but what the actual court record says.

Summery charges if I remember right what the US considers petty theft but again I'm no expert its just what I remember from when I went through this, and that is what they will look for those whether is is a Summery charge or not.

I only had one charge to deal with so I never looked into having 2 so I hope you can get more answers soon.

And Welcome to VJ there is also a Canada section you might be interested in since you can get more Canada related info.

[kkramps79 0]

Unfortunately the wording on the court records is Theft under $5000 for both and the court records don't give details on the joyride one - which is why we ordered the transcript to show more details into the case, the theft of the gas though was pretty cut and dry so didn't bother paying to get more info on that one.

If you don't mind me asking a personal question - the 1 charge you had to deal with - was it a summary offence? If it was a small offence did you get by fine then without needing a waiver?

And thanks I will keep snoopin around the Canada area for more info.

[Ontarkie 14,542]

I can see why you wanted to get the transcript, it will definitely help.

I didn't get a fine, I had the same charge of theft under 5000$ and I didn't need a waiver.

[kkramps79 0]

Wow - that is very good to hear Thanks for letting me know Ontarkie

[Sandra G. 5,078]

Joy riding does not fall within the definition of moral turpitude as stated in the 9FAM 40.21(a) N2.3

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

Theft have uniformly been held to involve moral turpitude needs waiver to overcome admissibility. I believe the US Consulate will ask him to file the waiver .

(1) Damaging private property (where intent to damage not required);

(2) Breaking and entering (requiring no specific or implicit intent to commit a crime involving moral turpitude);

(3) Passing bad checks (where intent to defraud not required);

(4) Possessing stolen property (if guilty knowledge is not essential);

(5) Joy riding (where the intention to take permanently not required);

[kkramps79 0]

But it does say in the case of 1 crime involving moral turpitude a waiver is not needed if it is a summary offence which his is. So confused

[Sweetcheeksss 91]

I had one Theft under 5k, summary conviction, no jail time and 6 months of parole. (section 334 (b)(ii) of the Criminal Code of Canada).

When I went for my interview, my court documents only specified Section 334(b) (the ii was not included on the court docs). Because the "ii" means summary offense and a "i" means indictment the interviewing officer recommended that I NEEDED a waiver.

I ended up having to hire a lawyer (I hired Laurel Scott), she filed a MTR, (it was denied). She then filed an Advisory Opinion requesting clarification. The advisory office ruled that as long as I could produce a court document clearly showing the "ii" they would recommend to the interviewing officer that I did not need a waiver. I had to go to the court house, the supervisor of records had to find my file and she wrote a letter on my behalf (on court letterhead) stating the normal practices of the Provincial court where I lived. But even then, my lawyer had to escalate it to the Immigrant Visa Chief in Montreal and she personally spoke to my interviewing officer and he FINALLY issued my visa.

Personally, I felt like the day I was interviewing he was having a VERY bad day and made his decision that no matter what, I needed a waiver.

And FYI - once the officer has made his decision, there is NO one (even the Visa Chief) that can force him to change his mind. It would just be a very stupid career move for him not to listen to his boss.

[kkramps79 0]

Well on the plus side on my hubbies court records - both of them are stamped that they were charged as summary offences. Hopefully that should help us out. In your opinion what do you think since they are both clearly summary offences?

[Sweetcheeksss 91]

Mine was ALSO clearly stamped summary offense.

The officer said because it didn't have the "ii" in the criminal code that it could be either a summary OR indictable offense. Even tho it clearly had a summary offense stamp at the bottom. He didnt care and would NOT budge. There was no changing his mind.

[Sweetcheeksss 91]

Funny thing is, I had travelled to the US multiple times - every time the CBP officer saw my court papers, as soon as they saw the summary conviction stamp, that's all they needed. I'd be allowed through. Never needed a waiver - ever.

But like I said, this officer made up his mind and there's no arguing, he's not obligated (nor will they usually) answer any questions as to why. They don't want to debate it, their decision is the law.

[kkramps79 0]

Great now I'm all worried again I just looked at his police check and his court records and there isnt a (ii) anywhere

Now it is stamped summary but looking like that doesnt matter.

I do know in the court transcript we ordered for his joyride it does even state in there that they are proceeding as a summary offence.

@Ontarkie - do you remember if your court records had the (ii) or not?

[kkramps79 0]

Well at least I know I still have my senator thats willing to help if need be - but praying it doesn't come to that. I am so ready to get back to Minnesota I miss my family.