We've just received an approval for our I-129F (K-3) petition. Now that I can stop worrying about that part of the process, I've begun to worry about the interview.

My husband has one conviction on his record from the early 1980's for "offences against property: criminal damage". He and a friend, both 19, kicked over/damaged a traffic bollard (like a permanent traffic cone); they were both convicted and fined 25 pounds, which was paid.

I've researched and can't find anything conclusive regarding if this offence would be considered a CIMT. Common sense tells me it isn't, but, then, common sense doesn't have much weight in the immigration process.

Any advice or opinions would be helpful. Thanks.

It's easy.. the nature of the offense definitely puts it in CIMT territory... if the offense had a maximum penalty of more than 1 year in prison whether it was actually assessed or not.. it's a CIMT and will require a waiver... that would probably depend on the amount of damages...

Any offense that shows up on a police report.

There are some exceptions.

http://travel.state.gov/visa/frvi/ineligib...Ineligibilities

Sounds like your case fits section 212(g) (a) (2) (A) (ii) (II) exception due to no imprisonment, and just a fine paid.

Well, he fits the second part of clause II, but I'm not sure about the first. From the UK Home Office:

Sanctions

Under the Criminal Damage Act 1971 the maximum sentences that may be handed down for criminal damage are:

life for arson, criminal damage that endangers life, or for threat or possession with intent to commit criminal damage involving explosives;

14 years where racially or religiously aggravated; and

10 years for all other forms of criminal damage, including threat or possession with intent to commit criminal damage.

Often, however, the cases will be minor and so can be dealt with in a magistrates' court. The court will take into account the damage and trouble caused in restoring the property when sentencing:

if the value of exceeds £5,000, the maximum penalty is six months in jail and a £5,000 fine

if the value is less than £5,000, the maximum sentence is three months imprisonment or a fine of £2,500

Should I assume that the second bolded statement would be what they consider the maximum sentence in his case? Or is it, indeed, considered to be ten years regardless? It's a bit unclear.

Is it worth having a consult with a lawyer about it?

Thanks for your help.

Okay, I must have had a brain burp when I was researching this weeks ago. I was being far too general with my search terms. Now that I have an actual copy of my husband's police report, I found out that he appeared in a Magistrates Court. Magistrates can impose a fine of up to £5,000 and/or a maximum sentence of six months' imprisonment. For Criminal Damage, specifically:

Where the value of the damage is less than £5,000 then the case must be heard in the Magistrate's Court and the maximum sentence is three months in prison or a fine of up to £2,500 and a compensation order of up to £5,000. Where the value of the damage is greater than £5,000 then you can choose whether the case is heard in the Magistrates or Crown Court; in the Crown Court the maximum sentence is ten years in prison or an unlimited fine and a compensation order equivalent to the amount of the damage.

So Exception Clause II does apply, as YuAndDan said.

Sorry for being such a nutter about all this, but I want to be prepared.

Do we need prepare some sort of document detailing how he falls under the Exception Clause?

The maximum sentence a magistrate may impose is 6 months imprisonment and is irrelevant. If the magistrates decide a more severe punishment is warranted they may refer the case to Crown Court where the maximum prison sentence for this offence is 10 years imprisonment. It is the imprisonment term for the offence which is important not the sentence that may be imposed by a particular branch of the judiciary. In answer to your question it falls within the definition of CMT and should be disclosed and a waiver applied for.

garyandkris, what you need to consider from the police report is what the offense was, and what the maximum *could* have been, not what was actually assessed.

(Delco, I think you're reading that wrong. Assuming that the damage was under £5,000, from what garyandkris posted, the case *must* be heard in a Magistrate's court where the maximum is three months, not 10 years. You're right if the amount assessed was over £5,000 and it was an *option* to go to Crown court, but on this information, it can't be sent there if the damage is under £5,000, and so there's no 10-year option on the table. Yes? No?)

garyandkris, I think YuandDan has this right. If the maximum (on your post) that your husband could have received was three months in prison, that seems to fall under the exception YuandDan bolded. It's probably not a bad idea to consult with a lawyer to give you ideas on how to explain it, and to make sure that you're reading the relevant law correctly.

None of us can give legal advice here, obviously. Good luck.

No I am not reading it wrong. We are now wandering into the territory of the distinction between summary, indictable and either or offences, which is a matter of venue rather than a matter of sentence. The Offence is covered by the Criminal Damage Act 1971 the maximum sentence for which is shown below;

(1) A person guilty of arson under section 1 above or of an offence under section 1(2) above (whether arson or not) shall on conviction on indictment be liable to imprisonment for life.

(2) A person guilty of any other offence under this Act shall on conviction on indictment be liable to imprisonment for a term not exceeding ten years.

The offence therefore fits the general definition of CMT for immigration purposes.

However more specifically, If you refer to the US stance on CMT you will see that:

9 FAM 40.21 (a) N2.2 defining moral turpitude

.......... the most common elements involving moral turpitude are;

( 1 ) Fraud

( 2 ) Larceny

( 3 ) intent to harm person or thing
......

Furthermore,

9 FAM 40.21 (a) N2.3 - 1 Crimes committed against property

.....

b. Other crimes committed against property involving moral turpitude...................which may be held to involve moral turpitude for the purposes of visa issuance:

..............

10. Malicious destruction of property.

You are quite correct when you say that none of us can give legal advice here, in particular I now live in the USA and no longer practice law in the UK

I trust the above is helpful to the OP. A good general rule to follow is if in doubt disclose. It will not be held against you if it transpires that you did not need to disclose it in the first place.

Right. I have that pdf, too; pretty clearly CiMT. Just wasn't sure about the exemption based on maximum severity of sentence YuandDan noted, but I'll yield to your greater experience on that statute. Does the venue not affect the maximum imposable sentence at all?

Definitely disclose. Lying bad.

No venue only affects the sentencing powers available to the presiding magistrate/judge.

The lower maximum sentences available to the courts of first instance mean in reality many people will opt to be tried in the magistrates court to minimise their punishment potential if that makes sense to you?

However, the magistrates are always at liberty to (1) decide the offence is so serious they feel it should be passed to a higher court, or (2) try the case then decide they have insufficient sentencing powers and refer it to Crown Court for sentencing.

Hope that clears it up for you in very basic terms ( all is never as it appears with the English Legal system )

OP here.

We'd always planned on disclosure. Lying or omission leads to certain death in the immigration process. I was unclear on if we'd be required to file a waiver or if there was some evidence we could provide at the time of his interview that would show a waiver was not required.

You've both addressed my confusion regarding the maximum sentence. I am inclined to believe that it will been seen as 10 years, but I have some doubt. Would it be worthwhile to consult first with a UK attorney to see if his offense must be viewed as having a maximum 10 year sentence or if there is some wiggle room given the maximum sentence under the Magistrates Court and the petty nature of his offense? Or should I go straight to a US attorney?

Additionally, if his offense is determined to be a CIMT, does that automatically mean he must file a waiver (I think the answer is yes, but I want to be clear), or is that at the discretion of his interviewer, which is what the misinformation line in London told him?

Finally, should I stop posting endless questions here and just get a fraking consultation with a US immigration attorney already?

I wish I had given myself a few more days to enjoy the relief I felt when our petitons were approved. Ah, well. Easy come, easy go.

Thank you all for your input.

Ack! I know I implied that I would shut up now, but I can't seem to help myself! I blame Google.

Right. From the Norfolk Police website (why Norfolk? I don't know.) :

The Criminal Damage Act 1971 creates two levels of offence, a summary offence and a more serious offence that can be tried either in the magistrates' court or in the Crown Court.

The summary offence triable only by magistrates is limited to damage to property worth less than £5000. The offender can receive a maximum 3 month prison sentence and/or a Level 4 fine.

Higher value criminal damage cases are heard either in the magistrates' court or in the Crown Court. The more serious cases heard in the magistrates' court attract a maximum prison sentence of 6 months and a Level 5 fine. The serious cases heard in Crown Court can receive a maximum penalty of 10 years imprisonment.

Is the distinction of a summary offence merely a matter of venue? If so, what I bolded above is very badly worded. If it can only be tried by a magistrate, then the maximum sentence cannot exceed 3 months.

Does anyone know where I can find a copy of the Criminal Damage Act 1971? I haven't been able to find it online yet, but I'll keep looking.

I promise I really will shut up now. Er, for a bit, at least.

If the offense is CIMT, waiver is required

You might want to do a half hour consult with Laurel Scott - www.visacentral.net - she's very experienced in waivers and could probably give you some very clear guidance without having to spend a fortune

Why on earth would the Police know about the law? They are constantly getting it wrong hence the low conviction rate (teasing)

The Act is easy to find here ya go

http://www.webtribe.net/~shg/Criminal%20Da...1%20c%2048).htm

The section you refer to above is not from the Criminal Damage Act itself but from of the provisions of Section 22, Schedule 22 and Schedule 2 of the Magistrates' Courts Act 1980 (MCA) which deal with the determination of mode of trial for the Scheduled offences. Where the value of the property destroyed or damaged is currently not more than £5000, the damage is treated as it were only triable summarily. ie in a magistrates court with a maximum sentence of 3 months. However to complicate matters there IS provision even in this case (technically and very rarely admittedly) under ot
her legislation for the magistrates to refer it to Crown Court for sentencing. See I told you it wasnt as it first appeared

If you want to read more about the current Prosecution guidelines you can read them here ( cheaper and more effective than sleeping pills

http://www.cps.gov.uk/legal/section11/chap...ml#_Toc13565160

In reality there appears to be a mountain out of a molehill situation here and although with US Immigration no one can expect common sense to prevail I would expect a waiver to be granted in this case without too much difficulty. I am in no doubt it fits the definition of CIMT because it involves damage to property, but bear in mind the UK law does not actually define damage - go figure. Something as simple as smearing mud on a police station wall has been held to be "damage"

If it were me I would disclose and apply for the waiver fully expecting it to cause a minor delay in processing but no huge problem overall. As to the OP considering a consultation with a UK lawyer I would say if you really want some hand holding and reassurance then consult a US Immigration attorney. They really are much better placed to advise on this as they the US are concerned with their definition of CIMT and really do not give a hoot about what the UK or anywhere else for that matter say on the matter.

Good luck on your journey and try not to lose too much sleep on this one.

I would do two thngs...

1) Definitely disclose the offense

2) Bring the court records with you.. that will give information on what the chrges are andwhat the incident was so the CO can make the appropriate determination...

One thing that should be noted... it isn't what the punishment would be in the UK.. it's what the ppunishment would be for the same crime in the US. If the amount of damage done exceed what the minimum setence that could have been imposed in the US and that minimum setence is more than 1 year, then you need a waiver...

I would definitely be prepared that a waiver could be necessary and have one prepared in cae it is asked for... I would also have a consult with an immigration lawyer to talk this over...

Delco, I really could have used those links last night--couldn't get to sleep to save my life. This morning I awoke with a horrid sore throat and a water softener with a burst pipe. This day can't get worse, can it?

Kitkat, I had that link bookmarked from some preliminary searching I did into this subject weeks ago. I'd forgotten about it, though, so thanks for the reminder. I decided to have an email consultation with Laurel Scott because I am horrible on the phone. Er, I'm probably not that much better in emails. I included a link to this thread, so everybody say "hi" to Ms Scott in case she stops by to read it. I don't expect to hear from her until after the 14th, though, as she goes on vacation to Disney World tomorrow. (Take me with you, please! )

Zyygy, I didn't realise that it was the maximum US sentence. I've asked about that in my email. I think his offence would be considered misdemeanor vandalism in the States, but who knows.

Thanks again for your help, everyone. I'll post updates when I hear something or feel like rattling on again.

I heard back from Laurel Scott within half an hour of sending her an email. She gave me permission to post what she told me (I have omitted a few personal details).

Its always about the maximum possible sentence under the law of the country where the crime was committed, not the maximum sentence in the US. But regardless of what the statute says the maximum possible sentence is for that conviction, if he was tried in Magistrates Court, the maximum possible sentence is six months for ANY offense. In Britain you can only get the maximum possible sentence under the statute if you are tried in Crown Court. As his maximum possible sentence was six months, he qualifies for the petty offense exception in the Immigration and Nationality Act. Your husband should not need a waiver. In the past I have been hired to write DS-230 amendments along these lines. Effectively it would be a two-page brief arguing that your husband is not inadmissible, citing the law to prove what I just stated above.

Because I am a paranoid lunatic, I'm fairly certain at this point that I will ask her to prepare a DS-230 amendment. I know that having one prepared is no guarantee of an approval, but it would give me peace of mind.

I like the fact that she didn't write something like, "OMG!!! U absolutely MUST GET A DS-230!!! And pay me like a brazillian dollars to have it done!!" That is how you lawyers talk usually, isn't it?

I'm updating this old thread because my husband's interview was today. I hate it when people don't come back and report what the outcome was, because I think it helps the people who come after you.

Gary was approved! His interview took about five minutes. The ConOff looked at his police report and asked him about the two incidents. He doesn't think she more than glanced at the court record for his conviction/fine, a letter we'd gotten from the Freedom of Information records office concerning the circumstances of his caution, or the addendum Laurel Scott had prepared for us.

It still hasn't sunk it yet that he doesn't need a waiver. I'm in denial over an approval.

WOW - HUGE CONGRATS!!!!!!!!!!!!!!!!!!!

Congrats to both of you!

Thank you for taking the time to let us know.

Thanks, guys. It's finally sunk in now, and I'm feeling excited and happy for the first time in a while. I won't relax completely until he actually steps foot on US soil, though, because I'm insane.

Kitkat, I hate that you have another six months wait on your hands. Our process from start to finish only took a little longer than that. It seemed like ages at the time, but it was a drop in the bucket compared to what so many other VJers have to go through. I know that my husband and I are very lucky. I can only wish everyone going through the waiver process the best of luck, and I hope you are all reunited with your loved ones as soon as possible.

I am still a little confused about this waiver stuff. My fiance also has an incident on his record involving damage to private property. He wasn't fully charged, only cautioned, and he never had to pay a fine. And this was almost 5 years ago. Should we do the waiver or will the police record and an explanation be enough?

Congratulations, kris! Thanks for coming back and filling us in. I hadn't seen your original posts at all and the discussion was enlightening!

There's no way to 'do' a waiver - unless you mean prepare the waiver documents in advance?

As Tracy said, you don't really "do" a waiver; they inform you if you need one at the interview. Some people who are certain they'll be found ineligible and be required to file a waiver have one prepared before their interviews. This is so they don't waste any time filing, as waivers can take a long time to process.

Is your fiance the one who accidentally fell onto a window, breaking it? I can't give you a guarantee, but I'll tell you it's extremely unlikely that he'll be found ineligible during his interview and be required to file a waiver. Your fiance wasn't even convicted or fined/sentenced, as Gary was, and he didn't need a waiver.

The police record and your husband's explanation will be enough to satisfy the CO. If you want, you can try to track down the Evidence and Actions Book (EAB) which should give a few more details about the offense, but it's really not necessary.

Congrats! And really, thanks for reporting back with the update!

Yeah, I didn't think it would be necessary since it was damage to private property and thus exempt from being a CIMT. I think I am just finding things to worry about while waiting. Not a good thing for sure.

Congrats on this. Enjoy your life together in the USA now!!

Big Congrats@@@