Proceeding with Criminal Record

[Family 3,988]

5 minutes ago, Bob in Boston said:

not true, depends on the state and the statute. in Ma A&B is a misdemeanor offense and carries a sentence up to 2 years in house of correction. Domestic A&B is also a misdemeanor but the catigory (domestic) makes it more serious with a manditory arrest.

My position is that he takes court transcripts ( equivalent of sentencing minutes / any plea ..) and get an expert opinion before showing up to the interview. 
Not all DV arrests and charges filed end up with conviction as such, for sure. 
And of course, no argument from me on the content of your post, just happy you engage. 

[Bob in Boston 698]

2 minutes ago, navd-0 said:

Legal scholarship has CIMT down to grievous harm or simple assault + deadly weapon. It looks as though I should be completely fine, but I just cannot find anything or anyone giving concrete information.

When you get down to it it was 2 brothers duking it out.... back when I was growing up (mid 60 to mid 70s)this was normal behaviour and the police here would never get involved. In the mid 80s Family abuse law was a big thing and they came out with all these new practices. They also wrote into the law that the Police Shall arrest and limited the discreation of the police. I think that this happening between 2 brothers in their youth it will go no where. I would still get as much information as you can from the courts and have your brother write an afidavit that it was just some good old fasion brotherly love. Good Luck

[VinnyH 59]

33 minutes ago, navd-0 said:

The crux of the issue as far as I can tell is what constitutes a CIMT 'Crime Involving Moral Turbidity' as that is the only test that matters. As CIMT is not clearly defined it leaves a lot open to chance, which is frightening. 

Legal scholarship has CIMT down to grievous harm or simple assault + deadly weapon. It looks as though I should be completely fine, but I just cannot find anything or anyone giving concrete information.

 

You must surely mean "moral turpitude" (and not "turbidity" which is a term from physics/chemistry measuring the cloudiness of a liquid when exposed to light 😁).

 

As far as I remember, the notion of Crime Involving Moral Turpitude is specific to U.S. Immigration Laws, and whether an offense may be considered as a CIMT can only be done by an Immigration Judge in the U.S. for immigrants/non-immigrants brought before the Court.

 

Typically, a LPR or a foreigner living in the U.S. who has been convicted for a crime may be deported (with the PR status terminated) if the Judge considers the crime to be a CIMT (and yes, the term is broad enough and there is no clear/defined rule despite legal scholar consensus).

 

I am probably wrong, but I am not sure the USCIS nor the Consular Officer adjudicate a case under the CIMT criteria (which is more a criteria to terminate PR status by an Immigration Judge).

 

Have you considered consulting a lawyer?

 

Cheers,

VinnyH

[Family 3,988]

38 minutes ago, Bob in Boston said:

When you get down to it it was 2 brothers duking it out.... back when I was growing up (mid 60 to mid 70s)this was normal behaviour and the police here would never get involved. In the mid 80s Family abuse law was a big thing and they came out with all these new practices. They also wrote into the law that the Police Shall arrest and limited the discreation of the police. I think that this happening between 2 brothers in their youth it will go no where. I would still get as much information as you can from the courts and have your brother write an afidavit that it was just some good old fasion brotherly love. Good Luck

Although I am Absolutely sympathetic to the circumstances and mom just wanted to teach the boys a lesson, it’s worth preparing a legal analysis of the offense / conviction ..compared to US equivalent…or face the dreaded delay of having to do it post interview. 
 

[Family 3,988]

https://www.ilrc.org/sites/default/files/resources/california_chart_jan_2016-v2.pdf

[Redro 4,611]

12 minutes ago, VinnyH said:

You must surely mean "moral turpitude" (and not "turbidity" which is a term from physics/chemistry measuring the cloudiness of a liquid when exposed to light 😁).

 

As far as I remember, the notion of Crime Involving Moral Turpitude is specific to U.S. Immigration Laws, and whether an offense may be considered as a CIMT can only be done by an Immigration Judge in the U.S. for immigrants/non-immigrants brought before the Court.

 

Typically, a LPR or a foreigner living in the U.S. who has been convicted for a crime may be deported (with the PR status terminated) if the Judge considers the crime to be a CIMT (and yes, the term is broad enough and there is no clear/defined rule despite legal scholar consensus).

 

I am probably wrong, but I am not sure the USCIS nor the Consular Officer adjudicate a case under the CIMT criteria (which is more a criteria to terminate PR status by an Immigration Judge).

 

Have you considered consulting a lawyer?

 

Cheers,

VinnyH

CO's can and do determine if a crime is one of moral turpitude... 

If CIMT is found one needs to complete a waiver. It prolongs the process by about a year.... 

https://www.visajourney.com/sitesearch/?cx=partner-pub-3407508467788263%3A9725800110&cof=FORID%3A10&ie=UTF-8&q=CIMT+waiver+consulate&sa=Search

 

I would prepare as if a waiver is needed.

@navd-0 I'm not sure if you want to re-consider where you interview takes place... in the UK or Australia. In case a waiver is required are you able to stay in the UK for another year or so?

Also, if I remember correctly you have traveled to the US under ESTA... 

Were you arrested when the your mom called the police? You might have received an ESTA when you weren't eligible. 

I would definitely consult with a lawyer. 

 

Hopefully I am thinking worst case scenario and this won't make a difference.... 

 

 

 

Edited June 23, 2022 by ROK2USA

[navd-0 12]

7 hours ago, ROK2USA said:

CO's can and do determine if a crime is one of moral turpitude... 

If CIMT is found one needs to complete a waiver. It prolongs the process by about a year.... 

https://www.visajourney.com/sitesearch/?cx=partner-pub-3407508467788263%3A9725800110&cof=FORID%3A10&ie=UTF-8&q=CIMT+waiver+consulate&sa=Search

 

I would prepare as if a waiver is needed.

@navd-0 I'm not sure if you want to re-consider where you interview takes place... in the UK or Australia. In case a waiver is required are you able to stay in the UK for another year or so?

Also, if I remember correctly you have traveled to the US under ESTA... 

Were you arrested when the your mom called the police? You might have received an ESTA when you weren't eligible. 

I would definitely consult with a lawyer. 

 

Hopefully I am thinking worst case scenario and this won't make a difference.... 

 

 

 

Thanks for your response ROK2USA,

ESTA is managed by CBP which is a sister agency to USCIS, as such they interpret the same laws in a slightly different fashion. 

ESTA very clearly asks if I have been involved in a 'crime that has caused serious bodily harm' (which is close to the CIMT definition of assault). I obviously have not been involved in such a crime, therefore I tick 'no'. From my limited few hours of research into CIMT I can surmise that my conviction does not involve CIMT, however I am worried about chancing that to some random border official or immigration judge (the same people that sat by as children were separated from parents and put in cages!)

I am completely unsure as to how to change interview location to Sydney, it's starting to seem that would be the best route. In addition will I have to hire another lawyer to deal with the criminal record, as our current lawyer is a bit more barebones about such things. 

 

Edited June 23, 2022 by navd-0

[navd-0 12]

7 hours ago, Family said:

https://www.ilrc.org/sites/default/files/resources/california_chart_jan_2016-v2.pdf

One thing that would answer a lot of questions right off the bat is that if the CIMT exemption applies to me?

In the US my conviction carries a MAX sentence of 6 months, however the same simple assault (which in the US is not CIMT) when carried out in Australia has a max sentence of 2 years.  I had a look at the police stats and less than 5% of people are ever actually sentenced for the crime, most like me are just told to behave for 12 months. 

If the exemption applies to US Federal rates of sentencing instead of Australia we're back to this being a minor issue. 

[navd-0 12]

10 hours ago, Bob in Boston said:

When you get down to it it was 2 brothers duking it out.... back when I was growing up (mid 60 to mid 70s)this was normal behaviour and the police here would never get involved. In the mid 80s Family abuse law was a big thing and they came out with all these new practices. They also wrote into the law that the Police Shall arrest and limited the discreation of the police. I think that this happening between 2 brothers in their youth it will go no where. I would still get as much information as you can from the courts and have your brother write an afidavit that it was just some good old fasion brotherly love. Good Luck

I'm actually mad at myself for not realising that the Police and Courts are not their to help out the family, rather they're just their to do THEIR jobs. 

I remember vividly being asked 'Did you strike him' and I said no at first but then mentioned 'wait yes, I went to grab something and pushed past him to get it' and that became a whole thing for the police and courts, I didn't want to lie about anything, but they really latched on to some of the keywords I said.

[Redro 4,611]

2 hours ago, navd-0 said:

One thing that would answer a lot of questions right off the bat is that if the CIMT exemption applies to me?

In the US my conviction carries a MAX sentence of 6 months, however the same simple assault (which in the US is not CIMT) when carried out in Australia has a max sentence of 2 years.  I had a look at the police stats and less than 5% of people are ever actually sentenced for the crime, most like me are just told to behave for 12 months. 

If the exemption applies to US Federal rates of sentencing instead of Australia we're back to this being a minor issue. 

I would consult with a lawyer experienced in waivers... 

Laurel Scott is often suggested on these boards. Hopefully she'll be able to look through your records and explain your options. 

 

I would hold off on requesting a transfer until after the consultation. Because it really could be NBD. 

 

To transfer the case:

How do I transfer my Immigrant Visa case from one embassy or consulate to another?

If you would like to transfer your Immigrant Visa (IV) case to another embassy or consulate, please follow the steps below:

• If your case is at a U.S. embassy or consulate, contact the potential gaining U.S. embassy or consulate in writing to request a transfer of your case.  Please include a justification for the request.  If you are not a resident of that country, specify that in your request.  

• If your petition is being processed at the National Visa Center (NVC), contact the NVC to request the transfer.  NVC will transfer cases to another IV processing post if parties provide a written request along with the address in the requested country and the proof of eligibility (citizenship/legal residency in the requested country or other documentation). This can be provided at https://nvc.state.gov/inquiry.  In limited circumstances, NVC may need to contact you for additional eligibility requirements.  Note that transferring your case might not result in immediate processing as cases are processed in order based on the date the case became documentarily qualified. 

 

 

[navd-0 12]

4 minutes ago, ROK2USA said:

I would consult with a lawyer experienced in waivers... 

Laurel Scott is often suggested on these boards. Hopefully she'll be able to look through your records and explain your options. 

 

I would hold off on requesting a transfer until after the consultation. Because it really could be NBD. 

 

To transfer the case:

How do I transfer my Immigrant Visa case from one embassy or consulate to another?

If you would like to transfer your Immigrant Visa (IV) case to another embassy or consulate, please follow the steps below:

• If your case is at a U.S. embassy or consulate, contact the potential gaining U.S. embassy or consulate in writing to request a transfer of your case.  Please include a justification for the request.  If you are not a resident of that country, specify that in your request.  

• If your petition is being processed at the National Visa Center (NVC), contact the NVC to request the transfer.  NVC will transfer cases to another IV processing post if parties provide a written request along with the address in the requested country and the proof of eligibility (citizenship/legal residency in the requested country or other documentation). This can be provided at https://nvc.state.gov/inquiry.  In limited circumstances, NVC may need to contact you for additional eligibility requirements.  Note that transferring your case might not result in immediate processing as cases are processed in order based on the date the case became documentarily qualified. 

 

 

Excellent, 

Hopefully our lawyer may respond to our emails THIS WEEK. 

[Redro 4,611]

Just now, navd-0 said:

Excellent, 

Hopefully our lawyer may respond to our emails THIS WEEK. 

Good luck!