Criminal Record

[Pliskin 0]

Hello everyone. I have a question to ask. I am a USC, my wife is a CDN citizen. We are going the CR-1 route, have already gotten our NOA1 and are waiting on our NOA2. I was reading on another thread about the DS-230, specifically about the question "have you been charged, arrested or convicted of any offense or crime?"

So approximately 6 years ago, my wife was convicted of a crime. She pled guilty and was sentenced to a conditional discharge and 15 months of probation. She fufilled all conditions of her probation and has never been in any legal trouble again. She went to her local police (RCMP) and got a criminal background check. When it came back, it came back clear, as in, no record. She asked the RCMP officer how that could be (since she was convicted in 2004) and he told her because of her conditional sentence, after she did her probation and did not get into any trouble since then, it was gone from her record.

She has crossed into the US many times, with no troubles...

So my question is...should she still answer "yes" to the above question when the time comes?

Thanks for any suggestions...

[trailmix 77]

Yes she should. It asks if the applicant has ever been arrested, she has.

Also, I assume she obtained the fingerprint version of the criminal record check? She can't just use the 'name check' version, since she has had a conviction.

You will also need the court records.

Check out this page at the Dept. of State - scroll down to "Police Records" - you will want to read that as well as the "Court Records" section under that.

Good luck.

Edited April 16, 2010 by trailmix

[Pliskin 0]

I kinda thought that too because prolly, even though it's "off" her record, the police/border guards can see deeper (if that makes any sense). Plus, we want to be 100% honest of course.

Yes, she did the fingerprint version.

If she's been permitted to travel into the US so many times after the fact, will that be an issue with acceptance of our CR-1 do you think?

Thanks!

Edited April 16, 2010 by Pliskin

[trailmix 77]

Yes, you always want to be honest.

Funnily enough I was reading a thread a few days ago. Canadian citizen, now in the U.S. adjusting status, had been arrested in her youth at least 3 times, for being drunk.

She answered on the form that she had never been arrested and seemed quite flip about it - but to each their own.

Do they know? Hard to say, probably not - but they do know about things you wouldn't expect them to.

I'm no expert on this subject at all, there are people here who have criminal records who have successfully done a K1 or CR1 visa etc - there is a waivers forum here on VJ, if you want their opinions you need to give details of what she was charged with.

Edited April 17, 2010 by trailmix

[Canadiandggal 49]

Yes, you always want to be honest.

Funnily enough I was reading a thread a few days ago. Canadian citizen, now in the U.S. adjusting status, had been arrested in her youth at least 3 times, for being drunk.

She answered on the form that she had never been arrested and seemed quite flip about it - but to each their own.

Do they know? Hard to say, probably not - but they do know about things you wouldn't expect them to.

I'm no expert on this subject at all, there are people here who have criminal records who have successfully done a K1 or CR1 visa etc - there is a waivers forum here on VJ, if you want their opinions you need to give details of what she was charged with.

Telling the truth is always the best way. I am currently waiting for court records for a juv offense. Worse part was when I called to try to get my records first it was a hassel because I have no record and my papers are sealed and purged, but the funniest part was the clerk of the court asked me how they would know about my record, I said I told them, she said why would you do that, I said well it said have you ever been charged and I answered truthfully, she said well noone can access your juv record so you should have said no.whether they. Can see her record or not, truth is always better that way there are no surprises later on. Never realized it would be so complicated to get juvy records. Get your wife to call the courthouse she wass charGed at as it takes awhile to get them.

[Sweetcheeksss 91]

I found this on a legal website in the FAQ section (www.serottelaw.com)

Summary Convictions Under Canadian Criminal Law. A Canadian citizen who has a single conviction involving a crime of moral turpitude may not be inadmissible if the conviction was by "summary judgment" and not by "indictment." Under Canadian law, certain offenses may be treated by the court as summary convictions. A summary conviction in Canada carries a maximum term of imprisonment of six months. Therefore anyone with only one conviction, when it is a summary conviction for a CIMT, is not inadmissible to the U.S. This exception applies to only one CIMT conviction. If the person has more than one summary conviction, they are inadmissible and must apply for a waiver. It should be noted that the exception applies only to CIMT's and not to any type of drug convictions.

The burden of proof is always on the person to show that he is admissible. When it is known that the person has a conviction, they must provide evidence that the conviction was treated summarily. Acceptable proof of summary conviction will include a criminal record, showing the code section of a summary conviction, or court records showing that the alien was summarily convicted.

Absolute Discharge, Conditional Discharge, and Canadian Pardon. Absolute discharges for all crimes are not convictions for the purposes of U.S. immigration law. This includes all CIMT's and all drug-related charges as well.

Conditional discharges are convictions for purposes of U.S. immigration law, even though in the eyes of the Canadian government they are not convictions. This includes conditional discharges for all offenses, CIMT's and drug-related offences. Conditional discharges are granted for convictions handled both by summary conviction and as indictable offenses. So a conditional discharge for an indictable offense renders the person inadmissible, but a conditional discharge for a single CIMT offense convicted summarily will place the person within the exception, and the person is otherwise admissible. However, this exception does not apply to drug related offenses. So a conditional discharge for a drug related offense still renders the applicant inadmissible.

So, if I'm reading this correctly, and your wife did not re-offend, then I think she will be fine and no waiver is needed?

[BLOC3000 0]

I found this on a legal website in the FAQ section (www.serottelaw.com)

Summary Convictions Under Canadian Criminal Law. A Canadian citizen who has a single conviction involving a crime of moral turpitude may not be inadmissible if the conviction was by "summary judgment" and not by "indictment." Under Canadian law, certain offenses may be treated by the court as summary convictions. A summary conviction in Canada carries a maximum term of imprisonment of six months. Therefore anyone with only one conviction, when it is a summary conviction for a CIMT, is not inadmissible to the U.S. This exception applies to only one CIMT conviction. If the person has more than one summary conviction, they are inadmissible and must apply for a waiver. It should be noted that the exception applies only to CIMT's and not to any type of drug convictions.

The burden of proof is always on the person to show that he is admissible. When it is known that the person has a conviction, they must provide evidence that the conviction was treated summarily. Acceptable proof of summary conviction will include a criminal record, showing the code section of a summary conviction, or court records showing that the alien was summarily convicted.

Absolute Discharge, Conditional Discharge, and Canadian Pardon. Absolute discharges for all crimes are not convictions for the purposes of U.S. immigration law. This includes all CIMT's and all drug-related charges as well.

Conditional discharges are convictions for purposes of U.S. immigration law, even though in the eyes of the Canadian government they are not convictions. This includes conditional discharges for all offenses, CIMT's and drug-related offences. Conditional discharges are granted for convictions handled both by summary conviction and as indictable offenses. So a conditional discharge for an indictable offense renders the person inadmissible, but a conditional discharge for a single CIMT offense convicted summarily will place the person within the exception, and the person is otherwise admissible. However, this exception does not apply to drug related offenses. So a conditional discharge for a drug related offense still renders the applicant inadmissible.

So, if I'm reading this correctly, and your wife did not re-offend, then I think she will be fine and no waiver is needed?

Not true. A conditional or absolute discharge is considered a conviction by the FBI and the USCIS. I know this bc my wife has a conditional discharge from 1991 and still requires an I-192 to travel and work in the US. It has not impeded her ability to obtain an H1B or TN. However, I am concerned that it may impact her ability to obtain a Greencard and citizenship.

Anyone have any insights?

[Sweetcheeksss 91]

"Conditional discharges are convictions for purposes of U.S. immigration law, even though in the eyes of the Canadian government they are not convictions."

I personally don't have any experience with absolute discharges (I just copied that information from the above post from the referenced legal website) BUT....

If you only have one CIMT that fits the guidelines above, then it is considered to fall under the petty theft exception and no waiver is required.

I just had my IR-1 interview in Montreal on the 4th of August, I was also scared outta my wits about it, but the CO straight up told me that I did not need a waiver because of the exception.

Good luck with everything.

Edited September 6, 2010 by Sweetcheeksss

[canadianboy 1]

Hello everyone. I have a question to ask. I am a USC, my wife is a CDN citizen. We are going the CR-1 route, have already gotten our NOA1 and are waiting on our NOA2. I was reading on another thread about the DS-230, specifically about the question "have you been charged, arrested or convicted of any offense or crime?"

So approximately 6 years ago, my wife was convicted of a crime. She pled guilty and was sentenced to a conditional discharge and 15 months of probation. She fufilled all conditions of her probation and has never been in any legal trouble again. She went to her local police (RCMP) and got a criminal background check. When it came back, it came back clear, as in, no record. She asked the RCMP officer how that could be (since she was convicted in 2004) and he told her because of her conditional sentence, after she did her probation and did not get into any trouble since then, it was gone from her record.

She has crossed into the US many times, with no troubles...

So my question is...should she still answer "yes" to the above question when the time comes?

Thanks for any suggestions...

Had you submitted the DS230 with the yes answer to that question and what did they tell you. Im just curious, why do you need to say yes to the question if the records show nothing. And where are you going to request the records if they have been purged aldready?

[Minted7 3]

Hello everyone. I have a question to ask. I am a USC, my wife is a CDN citizen. We are going the CR-1 route, have already gotten our NOA1 and are waiting on our NOA2. I was reading on another thread about the DS-230, specifically about the question "have you been charged, arrested or convicted of any offense or crime?"

So approximately 6 years ago, my wife was convicted of a crime. She pled guilty and was sentenced to a conditional discharge and 15 months of probation. She fufilled all conditions of her probation and has never been in any legal trouble again. She went to her local police (RCMP) and got a criminal background check. When it came back, it came back clear, as in, no record. She asked the RCMP officer how that could be (since she was convicted in 2004) and he told her because of her conditional sentence, after she did her probation and did not get into any trouble since then, it was gone from her record.

She has crossed into the US many times, with no troubles...

So my question is...should she still answer "yes" to the above question when the time comes?

Thanks for any suggestions...

My hubby and I are in the same boat as you! Here's my story. http://www.visajourney.com/forums/topic/276531-what-you-do-when-your-young-and-stupidfollows-you-for-the-rest-of-your-life/

I was just wondering did you do the fingerprints at the police station? or somewhere else?

p.s. We are also very very scared that he will be denied, sucks

Edited October 6, 2010 by Minted7