Previous Minor Crime

[sammills89 2]

Hello to everyone who is familiar with my case, and to those you aren't! To cut a long story short, check out some of my other posts to find out the story behind my caution, but I do have a caution on my police certificate from when I was 17 and arrested for simple battery.

My fiance got in touch with DOS today, and they told her that they require some more information regarding question 38 on one of the forms (this is her exact words!) and I knew for a fact before checking that it was regarding ticking the box that yes, I have been arrested (I did make sure of this afterward). So, once again it has me looking around to try and make sure that this wont be an issue, and something I can resolve easily.

From a bit of searching, I have found the following regarding a CIMT and denial:

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

I also managed to find this...

To render an alien ineligible under INA 212(a)(2)(A)(i)(I), the conviction must be for a statutory offense, which involves moral turpitude. The presence of moral turpitude is determined by the nature of the statutory offense for which the alien was convicted, and not by the acts underlying the conviction. Therefore, evidence relating to the underlying act, including the testimony of the applicant, is not relevant to a determination of whether the conviction involved moral turpitude except when the statute is divisible (see 9 FAM 40.21(a) N5.2) or a political offense (see 9 FAM 40.21(a) N10). The presence of moral turpitude in a statutory offense is determined according to United States law.

So the two things I managed to find following this were that simple battery is a misdemeanor in the US (I was only cautioned here, NOT convicted) and the maximum punishment, if convicted, is 6 months imprisonment. Now I'm not a lawyer, nor am I particularly familiar with the US justice system, so if anyone could clarify that for me I would greatly appreciate it. Bearing in mind that if I am correct, as I was under 18 at the time, and the maximum imprisonment for simple battery is 6 months, surely I will not be denied because of this caution?

If you have taken the time to check out my other posts, you will see that there was clearly no criminal intent in my actions, but it appears as though this doesn't matter (Again, any enlightenment/opinion here is appreciated). Sorry if this was long winded and confusing, but as I'm sure you can understand I just want to put my mind at ease. Thank you so much for taking the time to read through all of this, and if I need to clear anything up just let me know (I'm tired and worrying so it may not be the easiest thing to read!)

Thanks again,

The Sam's.

[Lansbury 19]

The following is a definition of an assault which is generally viewed as not being a CIMT:-

Assault (simple) (i.e., any assault, which does not require an evil intent or depraved motive, although it may involve the use of a weapon, which is neither dangerous nor deadly).

One other thing I would say is do not try and tell them a caution isn't a conviction. It is it will be listed on you PNC record under convictions in England and Wales.

Here you are using the term simple battery and in another thread I believe final caution. These are not terms used in England and Wales but to me seem terms more used in Scottish law. The criminal law in England and Wales is different to that in Scotland there is no such thing as UK criminal law. Not sure if that makes a difference to the research you have done.

[meauxna 15]

One other thing I would say is do not try and tell them a caution isn't a conviction. It is it will be listed on you PNC record under convictions in England and Wales.

O hai!

Glad you are here & explaining this.

[sammills89 2]

This quote is taken from an ACPO officer, "A caution is not a criminal conviction, but it does result in a criminal record." So as I was told, a caution is not a criminal conviction, sorry if I didn't make that clear enough. The reason for me putting 'simple battery' was so that there was no deviation as to whether it was 'aggravated battery' or something more serious - I have my police certificate in my hand right now and it clearly states, "Caution - Battery" that is all. I am not from Scotland and the offense was committed in the UK, as a pure and unquestionable act of self-defence.

[familyguy 2]

This quote is taken from an ACPO officer, "A caution is not a criminal conviction, but it does result in a criminal record." So as I was told, a caution is not a criminal conviction, sorry if I didn't make that clear enough. The reason for me putting 'simple battery' was so that there was no deviation as to whether it was 'aggravated battery' or something more serious - I have my police certificate in my hand right now and it clearly states, "Caution - Battery" that is all. I am not from Scotland and the offense was committed in the UK, as a pure and unquestionable act of self-defence.

The reason it is listed on the PNC is because a caution can not be used as an option to dispose of the case unless the offender admits guilt. Recording it this way ensures that should a person be rearrested the caution option will not in theory be offered again, if it were only listed in local force databases it may be missed. US immigration does not recognize spent convictions as being spent btw. As always the best thing to do is to disclose it and explain it away. Good luck

[sammills89 2]

Yes, that's fair enough and I have done my best to explain it, I think they need more information for it I am not sure. I was aware from the start that the US doesn't recognise local laws/cautions - but as I said, in US law the maximum imprisonment for battery does not exceed 12 months, therefore it should be counted under the 'minor offences' waiver category. I just want to make sure I'm not wrong here?

[Lansbury 19]

This quote is taken from an ACPO officer, "A caution is not a criminal conviction, but it does result in a criminal record." So as I was told, a caution is not a criminal conviction, sorry if I didn't make that clear enough. The reason for me putting 'simple battery' was so that there was no deviation as to whether it was 'aggravated battery' or something more serious - I have my police certificate in my hand right now and it clearly states, "Caution - Battery" that is all. I am not from Scotland and the offense was committed in the UK, as a pure and unquestionable act of self-defence.

Well whoever wrote that Caution paperwork out hasn't done you any favours, while the term battery appears in the Act it is not a term in 37 years police service I heard applied to the sort of assault you describe. The Act you describe is a common assault and that is how it is referred to. An assault where an injury is caused in a minor form is an ABH (actual bodily harm).

During my last 10 years of service I had very close contact with the Legal Attache office and Consular staff at the US Embassy in London. Myself and my colleagues were often asked to explain to the Consular staff aspects of UK law and one thing we told them was a caution is a conviction. The way we described it to them was you can go to Court and get a caution (conditional discharge) or accept to have it dealt with solely by police and get a caution from them. Now I know some Consular officers in London do not accept a caution as the same as a conviction which it was never meant to be but there doesn't appear to be an official US policy on it as we discuss things here relating to the issue of visas.

The problem with listening to ACPO officers is most hardly spent anytime as working police officers and got where they were by accelerated promotion schemes spending as little time as 3 years on the street. Now you cannot get a criminal record if you haven't been convicted of a crime so I appreciate we are playing with semantics here but I am just wanting to point how a caution is viewed in practicality by those working at the sharp end.

Everything I've read and heard would indicted you have a good chance of being successful in your application, and I wish you well, but I hope my comments on how the Consular officer might view a caution is useful in your preparations.

[Lansbury 19]

but as I said, in US law the maximum imprisonment for battery does not exceed 12 months, therefore it should be counted under the 'minor offences' waiver category. I just want to make sure I'm not wrong here?

Your assumptions are correct from I have seen elsewhere that it fits a minor offenses waiver requirement.

But how will the Consular Officer determine which US law is applicable?

[sammills89 2]

As a person with so much experience I appreciate your responses here, has opened up a few other doors for me to look into here. Surely they cannot place a crime on me that I did not commit though, it was dealt with by my local jurisdiction and I was told they were looking into an assault charge etc, but all these charges were lowered, according to the officer who dealt with my case, because of the fact that I was clearly fleeing the scene and it was an accident - the guy pretty much jumped in front of my car!

All this goes without saying that I do regret what happened, but I really had no other choice - they put a house brick through my windscreen directly in front of me and both myself and my friend who I was with feared for our safety. I will see how it goes with the consular officer and we have spoken to a NJ state senator who has agreed to help with an unfair decision, should it happen - and I am willing to fight any negative decision given to me. Thank you again for your replies.

Sam.

[Lansbury 19]

Just describe things at the interview the way you have here. Provide a full account and be open and honest but make sure the Consular Officer understands the minor nature of the assault and the circumstances that lead up to it.

I have to say from what you say I cannot see what offenses you committed the use of reasonable force in self defense is not a crime.

While is seems very hard to get a hard and fast determination of what a CIMT is, as I posted above this seems as good an idea of what type of assault isn't and may guide you in your comments at the interview.

Assault (simple) (i.e., any assault, which does not require an evil intent or depraved motive, although it may involve the use of a weapon, which is neither dangerous nor deadly).

It is a shame they didn't clearly state on your caution paperwork the exact offence ie Sec 39 Criminal Justice Act 1988 if that is what it was. While that does have the term battery in it that is because you can commit an assault under English/Welsh law without actually touching them. If you intentionally do something to someone without touching them and they go into shock you have assaulted them, battery just means you used physical force. Unfortunately in lay terms battery implies a high level of force that it means legally.

As you put in your first post there is an exemption for one crime committed while under 18 and if 5 years have passed since the punishment ended, (that I guess would be the date of caution).

I don't see it is something that will not resolve in your favour. You have prepared yourself well for the interview and hopefully the worse that will happen to you is your interview will be a bit longer than most.

The anticipation of the interview in London is 99% of time a lot worse than the actual interview.

Edited July 14, 2009 by Lansbury