Does this crime fall under AWA? Here are the details of the conviction and what we'll provide USCIS for the RFE

[TBC 0]

Good afternoon!

 

We applied for adjustment of status (I'm the beneficiary) last year in June. I received the EAD at the end of August of 2023 and the AP in May of this year.

 

We received an RFE this week for my husband's conviction (for his i-130 application), I attached the screenshot.

 

We have requested the certified documents from the Court and they will be ready for pickup next Monday. 

 

We live in Michigan and he was convicted of 750.145(d).

This is the background information for his conviction:

- In 2006 (he was 22 yo) he was on the Internet asking people for their credit card number. In this case, it was police entrapment/sting operation where the police officers would speak to people and try to get them incriminated and subsequently arrested for sexual crimes. The governor back then ran on this platform that he will convict as many sexual offenders as possible so he could get reelected.

- He was on this chatting website where only people 18+ were allowed. The police officer on the other end was trying to get him to do sexual things, like show up in another county and meet up, he refused. He was at home the entire time and never left it.

- Fast forward a year from this incident, it's 2007 and he is getting arrested in relation to this incident, the police is now informing him that he accosted a minor, so this was the first time he heard about the person he talked to a year prior that they were a minor (it was not true, the police lied because they are allowed to lie, but they treated him as though he knew that he talked to a minor -- he did not). 

- He retained a lawyer that he paid a significant amount of money to, the lawyer promised him a plea deal that wasn't allowed by law (which he learned after his lawyer left him out to dry), and then asked the lawyer asked him to pay another $10-15k on top of the $10k he already paid. The lawyer also demanded that he pays for his friend's services who is an investigator or something to that extent. That's when my husband, who was very young and inexperienced, started realizing that he was being scammed and treated as a money cow by this lawyer: he hadn't even received a written contract and the $10k was supposed to last until the trial, according to his lawyer. So his lawyer then dropped him because my husband simply didn't have any more money left...

- He was assigned a public defender who never answered his calls, didn't show up to court when they would have meetings, and did not offer an effective assistance of counsel, to put it succinctly.

- There was no probable cause that led to him being arrested, but he had no more money left to get another lawyer, and his public defender did not even advocate for him - he was fresh out of law school and had no experience... So this lack of experience of the PD affected his case greatly because he got convicted of a felony where he used the Internet to solicit for a minor, he was asked by his PD to accept a plea of nolo conrendere despite  never even leaving the house and setting foot anywhere to meet with any of the police officers. He didn't do anything sexual online with that police officer either. He was asking for people's credit card information: wouldn't credit card fraud have been a better charge?!

- This was his first offense too and he was over punished in the sense that the court did not go by the guidelines. According to the court record and guidelines I saw with my own eyes, he wasn't even supposed to get this many years in prison, because the sentencing guidelines with his circumstances did not allow for this high of a punishment given that it was his first conviction, he had a low flight likelihood, low assault likelihood (there was lots of points added and subtracted giving a final number). They treated this case as though a minor was involved although it was an adult male who was a police officer in his mid 30s.

- My husband was 22 y.o. and got 2 years in prison, a felony, and he was not required by the court to register as a sex offender - yet he did get registered as one by one of the agencies he dealt with (registered as tier 2) despite the court not ordering this as part of the punishment.

- He also got discharged from therapy in prison because he was told he wasn't meant to be in there at all since he never accosted a minor -- he never left his home that night and the police went to his house to arrest him after a year!

- He had multiple counselors and people who were responsible for checking on him in prison (part of the dept. of corrections system, I believe) and they said that it is bizarre that he was incarcerated, because his case shouldn't have gotten as far as it did and that it seems that the police officers were really out to get him...

 

 

We have retained an appellate attorney in April or May of this year (it took a long time because it is so costly to retain an appellate attorney and his felony has affected him employment-wise).

Our attorney was flabbergasted when we presented him with the case: he said he'd never heard of such a bizarre case and that he really needed to see these details with his own eyes, so we provided him with the records from the court.

 

The records also showed how he requested to appeal his case because he was informed by the court that he had the right to do so (the judge who convicted him was notified at the end of the session that there has been an error in the sentencing guidelines and the judge shrugged and gave my husband a flyer saying that he could fill out the appeal, so he filled it out).

He also requested his entire record in 2009 -- by law he is entitled to have it. He received a letter that same year which said that he isn't allowed to obtain his records from the Court because he didn't prove he needed them. There was nothing to prove, we requested them again in 2024 and they provided them, which also included the illegal denial of his request to obtain his court records back in 2009. The mind boggles!

 

In June, 2024 our lawyer served the prosecutor of the county who went after my husband with papers that we have retained him as our lawyer and now a private investigator was hired too, to dig up more information. 

The lawyer said that we'll file a potion with the appeals court in a couple months from now, late summer to early fall.

 

Lastly, it's impossible to get court transcripts, the court where he was convicted said that it has been too many years and now they don't have those records anymore, they got rid of them.

We will provide the court records where jt shows that the "victim" was a 30 something year old police officer from another county than the one he lived in. We will also send USCIS the documents from the dept. of corrections and the mental health transcripts where the psychologist stated that he doesn't need to and shouldn't be attending her therapy sessions because he did not commit the crime that he was convicted of; because there was no minor and no intent to accost/solicit a minor, so he was successfully "kicked out" of therapy after the 1 session while incarcerated.

 

Does this conviction fall under AWA? If it does, do my husband's circumstances (sting operation, lack of probable cause because he never left his house, first offense etc) change anything in the eyes of USCIS?

 

If these very unfortunate circumstances of this conviction do not change anything, where in the EU can we live? France? Germany? I have UK and EU passports, so we are ready to leave if there is no way we can live here in the States.

 

It's just unbelievable how at each turn everything related to his conviction went wrong - Murphy's law really did its thing here... Everything that could go wrong went wrong and even worse... Truly hard to believe, but somehow it all happened.

 

Should we explain to USCIS all this along with the records from the court and the dept. of corrections?

 

Please advise! Any advice is appreciated.

Thank you.

 

P.S.: USCIS got the conviction date wrong, it's 2007 (says in the court records too), not 2010 -- so this is concerning us even more because we don't understand how so many things seem to be going wrong?! There were also not 3 counts, so it's just truly bizarre how this conviction is so cryptical!

 

 

Edited August 3 by TBC
Clarification

[Boiler 45,449]

What exactly was he convicted of?

[TBC 0]

15 minutes ago, Boiler said:

What exactly was he convicted of?

This is the law: Michigan Penal Code (MCL) 750.145d

 

He was convicted of "using the internet to accost a minor" 750.145d2d

 

Apparently his FBI records show a different conviction - he had his federal background checked for a federal aid for university, and the person who ran the background check said that they didn't see this conviction... Bizarre...

 

15 minutes ago, Boiler said:

What exactly was he convicted of?

 

Edited August 3 by TBC
Typo

[TBC 0]

9 minutes ago, TBC said:

This is the law: Michigan Penal Code (MCL) 750.145d

 

He was convicted of "using the internet to accost a minor" 750.145d2d

 

Apparently his FBI records show a different conviction - he had his federal background checked for a federal aid for university, and the person who ran the background check said that they didn't see this conviction... Bizarre...

 

 

This is what our appellate attorney wrote in the papers he submitted to the court in June of this year. I attached the picture.

[powerpuff 6,685]

*** Thread moved from Progress Reports to Process & Procedures ***

[TBC 0]

11 hours ago, powerpuff said:

*** Thread moved from Progress Reports to Process & Procedures ***

Do you know of anyone here on this forum who knows/understands how this works with AWA and USCIS? @Boiler ,@powerpuff or anyone else? 

[Boiler 45,449]

AWA is not common, we maybe see one a year?

 

All the ones I have come across have been fairly clear cut and I have not seen any cases successfully appealed.

 

I do know that every State has different laws, regulations etc so even if I was up to speed on Colorado law it does not follow that it would be applicable in your case.

 

There do seem to be a few Immigration Lawyers who are recognised as AWA experts, do you have a Lawyer?

[carmel34 3,620]

1 hour ago, TBC said:

Do you know of anyone here on this forum who knows/understands how this works with AWA and USCIS?

Here's a related thread with some informative links:

 

[TBC 0]

24 minutes ago, Boiler said:

AWA is not common, we maybe see one a year?

 

All the ones I have come across have been fairly clear cut and I have not seen any cases successfully appealed.

 

I do know that every State has different laws, regulations etc so even if I was up to speed on Colorado law it does not follow that it would be applicable in your case.

 

There do seem to be a few Immigration Lawyers who are recognised as AWA experts, do you have a Lawyer?

That makes sense that AWA is uncommon

We just don't even know how to approach this with USCIS because the conviction itself is problematic if you read the court records. We have paid for an appellate lawyer to help us appeal the conviction because there are multiple reasons why this case shouldn't have made it in the courtroom and he shouldn't have been convicted of this - if anything, credit card fraud would've been the right conviction.

 

We do not have an immigration attorney - we both work full-time but we cannot afford to retain another attorney. We'd simply be unable to keep a roof over our heads if we had to pay for another lawyer... 

 

So we'll provide all of the documents to USCIS that we can get from the court and the dept. of corrections - the documents will be certified, just like they're asking for. 

Then we'll explain everything as it happened and maybe until October our appellate attorney has some updates/progress to share with us that we could share with USCIS.

 

[TBC 0]

30 minutes ago, carmel34 said:

Here's a related thread with some informative links:

 

Great, thank you for sharing this thread, I read about it.

 

Then I guess that what we can do right now until we see some progress being made with our appellate attorney is to submit the evidence by October and write up a letter of explanation for what happened. 

We can also supply USCIS with proof that we have retained our appellate attorney (i. e.: our contract with him) and hopefully by then our motion will be filed with the appeals court, so we could supply that to USCIS too.

 

Push comes to shove, we might just have to apply again once the conviction gets vacated and/or he gets retried but this time for the actual crime he committed (and not just because he made some cops look stupid)...

[Boiler 45,449]

I tend to favour DIY options for Immigration cases, I DIYd my own case and feel comfortable say filing a I 601 waiver, have helped froinds etc.

 

I might even have a go at Mandamus.

 

AWA no, someone else may remember but I do not recollect someone succeeding with a Lawyer. I do remember people spending a lot of money and failing.

 

You make it sound like you are in the US, what is your status? Perhaps there are better alternative routes? The one you are going down is very complicated, something I would avoid if possible.

[TBC 0]

22 hours ago, Boiler said:

I tend to favour DIY options for Immigration cases, I DIYd my own case and feel comfortable say filing a I 601 waiver, have helped froinds etc.

 

I might even have a go at Mandamus.

 

AWA no, someone else may remember but I do not recollect someone succeeding with a Lawyer. I do remember people spending a lot of money and failing.

 

You make it sound like you are in the US, what is your status? Perhaps there are better alternative routes? The one you are going down is very complicated, something I would avoid if possible.

Yes, I'm in the US, I have an EAD and AP, we're waiting on the i-130 and i-485.

 

I'm not sure what other routes there are right now -- do you have any suggestions? Anything is appreciated. 

We'd of course hire another lawyer and this one for AWA/immigration - but we can't afford to have another lawyer on retainer, unfortunately... So we'll reply ourselves and do our best to explain. If the worst happens, then we'll reopen the case or apply again.

By then his conviction will get vacated (or some other sort of remedy given the circumstances surrounding the whole conviction), so we'll have proof that something material has happened to our case and, again, we might have to do this ourselves because having one lawyer (as we do right now) is extremely expensive, but two?! 😅 

[SalishSea 17,803]

15 hours ago, TBC said:

Yes, I'm in the US, I have an EAD and AP, we're waiting on the i-130 and i-485.

 

I'm not sure what other routes there are right now -- do you have any suggestions? Anything is appreciated. 

We'd of course hire another lawyer and this one for AWA/immigration - but we can't afford to have another lawyer on retainer, unfortunately... So we'll reply ourselves and do our best to explain. If the worst happens, then we'll reopen the case or apply again.

By then his conviction will get vacated (or some other sort of remedy given the circumstances surrounding the whole conviction), so we'll have proof that something material has happened to our case and, again, we might have to do this ourselves because having one lawyer (as we do right now) is extremely expensive, but two?! 😅 

So you’re an LPR trying to petition a spouse with an AWA crime?

 

Sorry, I don’t see that happening, ever.

 

And no appeal will change the documentation that you’re required to provide.

 

 

[TBC 0]

Just now, SalishSea said:

So you’re an LPR trying to petition a spouse with an AWA crime?

 

Sorry, I don’t see that happening, ever.

 

And no appeal will change the documentation that you’re required to provide.

 

 

Sorry - let me be clear, I wrote a lot up there and not all of it is my best writing given that I wrote it before I went to sleep.

 

I'm the beneficiary and my husband is my sponsor. He is the USC. He is the one who has the conviction and right now we have an appellate attorney who is going to file a motion with the court of appeals here in our state in order to get some sort of relief, like overturning the conviction or re-trying him (due to the many illegal things that led to my husband being convicted, one of which is lack of probable cause).

 

I hope this is clearer and a better explanation. Please let me know your thoughts and tag anyone on this forum that you may know and might provide any sort of insight.

 

Thank you!

[SalishSea 17,803]

1 minute ago, TBC said:

Sorry - let me be clear, I wrote a lot up there and not all of it is my best writing given that I wrote it before I went to sleep.

 

I'm the beneficiary and my husband is my sponsor. He is the USC. He is the one who has the conviction and right now we have an appellate attorney who is going to file a motion with the court of appeals here in our state in order to get some sort of relief, like overturning the conviction or re-trying him (due to the many illegal things that led to my husband being convicted, one of which is lack of probable cause).

 

I hope this is clearer and a better explanation. Please let me know your thoughts and tag anyone on this forum that you may know and might provide any sort of insight.

 

Thank you!

That info would have been crucial for this ENTIRE thread.

 

Why would it matter?  He does not need a visa!   Why is this even a thread??