Petty Crime Exception Maximum Penalty Possible?

[Camlynn 1]

I am a U.S. citizen, who has recently became engaged to a U.K. citizen. We are in the midst of preparing out K-1 packet. In the course of preparing said packet, we have been discussing my fiance's (beneficiary) criminal past. 

 

We have read a million different blogs, forum posts, government documents, etc, trying to determine his admissability to the U.S.

 

We are trying to figure out if he would be eligible for the Petty Crime Offense Exception.

 

Things we know: 1.) it was definitely a CIMT 2.) it has since been spent, appealed and completed (which I know probably means nothing) 3.) it does show on his police certificate, but no court records because it was over 10 years ago 4.) he served no jail time 5.) he was over 18

 

Things we don't know: 1.) the maximum penalty possible?????

 

We know that in order to fall under this petty crime exception, you have to have the following boxes ticked: 1.) only 1 CIMT conviction ever (yes), 2.) served no more than 6 months imprisonment (yes, he served nothing), and 3.) the maximum possible penalty was less than 1 year imprisonment (???)

 

We are unsure if this is the maximum penalty PERIOD or if this the the personal maximum that the judge sentenced you to??? Example: The maximum penalty is 5 years for this crime, period. Or the maximum penalty given to Johnny for his crime is 10 months imprisonment, regardless of the 5 year government umbrella maximum.

 

Is it the maximum blanket umbrella government statutory maximum OR do they take into considerating mitigating factors and use the graded down maximum that you PERSONALLY were given???

 

This is the BIGGEST question we have right now, because there are 2 very different sides to our coin at this moment in time. And I'm trying to stay calm and not spiral into depression, but we need an answer.

 

We've reached out to maybe 20 different lawyers and only gotten 3 responses back, one in the U.S. who basically told us to commit visa fraud and then one in the U.S. and one in the U.K. who hasn't gotten back to us yet. So, we're a little bit freaked out to say the least.

 

Can someone please help us decipher this???

[JFH 12,190]

When they refer to the “maximum possible penalty” they mean the maximum that sentencing law permits. So if the law says for x crime the maximum sentence is 10 years, then that’s the figure they use. Not the sentence recommended at the time or the “max out date” given to the individual. 

Edited January 27, 2019 by JFH

[JFH 12,190]

So it sounds like he will need an I-601 waiver after being denied (if a waiver is recommended) or you need to research moving to the UK. 

 

We are in the reverse situation. My husband is a US citizen with a felony and I am from the UK. He was denied a visa for the UK (our first choice of where to live) and that’s why I ended up here in Washington state. 

Edited January 27, 2019 by JFH

[Camlynn 1]

This is just the stupidest thing I've ever heard.

 

Thank you for your reply, but it just hurts my head to think that they can hold something against you that didn't even happen. It's like "you never served any jail time, but you're not eligible for this exception because you could've served 5 years". WHAT????????????

 

Completely insane.

Edited January 27, 2019 by Camlynn

[JFH 12,190]

Well at least the US permits waivers for spouses with criminal records, the UK doesn’t. As such, my husband will never even visit the UK, despite being married a British citizen. 

 

Question - has your fiancé come to the US since the incident? If so, under what status and did he declare it then? 

 

I understand your frustration. Very few here understand your situation as well as I do. But the reason they use the max penalty is to give everyone a level playing field.  Had he committed the same crime here, I’m pretty sure he would have served time. Just because the UK takes a more compassionate approach, doesn’t lessen the crime committed. 

Edited January 27, 2019 by JFH

[Crazy Cat 41,887]

26 minutes ago, Camlynn said:

This is just the stupidest thing I've ever heard.

 

Thank you for your reply, but it just hurts my head to think that they can hold something against you that didn't even happen. It's like "you never served any jail time, but you're not eligible for this exception because you could've served 5 years". WHAT????????????

 

Completely insane.

Insane?  It sounds like the criteria is rightfully based on the nature of the crime instead of the leniency of the judge.

[EM_Vandaveer 2,408]

41 minutes ago, Camlynn said:

This is just the stupidest thing I've ever heard.

 

Thank you for your reply, but it just hurts my head to think that they can hold something against you that didn't even happen. It's like "you never served any jail time, but you're not eligible for this exception because you could've served 5 years". WHAT????????????

 

Completely insane.

Well, logically if the maximum sentence is 5 years that means it's a more serious crime... Regardless what sentence the individual received the possible max sentence shows the seriousness of the crime more accurately.

[EM_Vandaveer 2,408]

Is it not relatively easy to look up the crime he was convicted of & its maximum penalty?

[Crazy Cat 41,887]

25 minutes ago, EM_Vandaveer said:

Is it not relatively easy to look up the crime he was convicted of & its maximum penalty?

Yes...especially for the consulate officers who have access to a great deal of information about interviewees & any interaction with law enforcement, the courts, US immigration and travel documents, etc.  

[mindthegap 2,590]

It is the maximum sentence for that offence in the UK (note: not the maximum sentence as if it took place in the US) at the time of the offence, so if the law has changed since, it is backdated.

Mitigating factors are not taken into account - it is solely the maximum possible sentence for that specific offence.

 

The maximum sentences are indeed all clarified in law and it is possible to find this information out.

However, it depends on a number of factors. For example, was it charged as a summary offence (trial in a magistrates court , which is the lowest court with limited sentences), or as indicatble offence  (trial by jury in a crown court). Think of it as misdemeanor vs felony. Or perhaps it was dealt with by way of a formal caution, which is dealt with without trial, but requires an admission of guilt to accept and consequently is treated the same as if it were a conviction under US immigration law. 

 

What is specific offence in this case? Any codes or specifics will help narrow it down to the  specifics for that offence.

Was it a single offence?

Does the police certificate detail it or show 'no live trace'?

Has your fiancé been to the US since this offence? If so was this under the VWP/ESTA or a visa?

 

 

 

3 hours ago, Camlynn said:

This is just the stupidest thing I've ever heard.

 

Thank you for your reply, but it just hurts my head to think that they can hold something against you that didn't even happen. It's like "you never served any jail time, but you're not eligible for this exception because you could've served 5 years". WHAT????????????

 

Completely insane.

Possibly, but it is what it is and won't be changing any time soon.

Edited January 27, 2019 by mindthegap

[Crazy Cat 41,887]

9 minutes ago, mindthegap said:

Has your fiancé been to the US since this offence? If so was this under the VWP/ESTA or a visa?

Is ESTA allowed after an offense like this one?  

[carmel34 3,633]

Hopefully you can move past this frustration, since there's nothing you can do to change the law, and figure out a way for you to immigrate to the UK or some other country so that you can be together.  Government bureaucracy and laws are frustrating when they get in the way of love, but that's the price you have to pay when you want to be with someone from another country.  I remember having conversations with my husband early in our relationship, before we even got engaged, about our backgrounds, if we had any arrests or police records that might cause problems for travel or immigration visas.  Now that you've come up against this roadblock, you'll have to decide if you love your fiance enough to do whatever it takes to be together, even if that means having to leave the US to do it.  The bureaucracy really tests a long-distance relationship across international borders.  Good luck!

[EM_Vandaveer 2,408]

1 hour ago, mindthegap said:

It is the maximum sentence for that offence in the UK (note: not the maximum sentence as if it took place in the US) at the time of the offence, so if the law has changed since, it is backdated.

Mitigating factors are not taken into account - it is solely the maximum possible sentence for that specific offence.

 

The maximum sentences are indeed all clarified in law and it is possible to find this information out.

However, it depends on a number of factors. For example, was it charged as a summary offence (trial in a magistrates court , which is the lowest court with limited sentences), or as indicatble offence  (trial by jury in a crown court). Think of it as misdemeanor vs felony. Or perhaps it was dealt with by way of a formal caution, which is dealt with without trial, but requires an admission of guilt to accept and consequently is treated the same as if it were a conviction under US immigration law. 

 

What is specific offence in this case? Any codes or specifics will help narrow it down to the  specifics for that offence.

Was it a single offence?

Does the police certificate detail it or show 'no live trace'?

Has your fiancé been to the US since this offence? If so was this under the VWP/ESTA or a visa?

 

 

 

Possibly, but it is what it is and won't be changing any time soon.

OP specifically said it does show up on the police certificate.

[yuna628 9,676]

7 hours ago, missileman said:

Is ESTA allowed after an offense like this one?  

I should think not. Which is why it's an important question, to know if they have visited before, and if they did so successfully, did they disclose their prior offense truthfully. It's the little stuff that stacks up.. of course if they never visited then it won't be an issue at least regarding misrepresenting...

[mindthegap 2,590]

7 hours ago, missileman said:

Is ESTA allowed after an offense like this one?  

Depends.

Max sentence for the offence comes into it again.... its all in INA 212(A)