A background issue - to postpone or not to postpone?

[Casprd 167]

I recommend you jump through those hoops and listen to the lawyer. While the Lima embassy is not as difficult as many others I have heard cases where visa applicants have been put through the ringer for lesser things. Good luck.

As disheartening as it is to delay things, it sounds like this is the best possible choice. A small delay now may avoid a big delay later.

[sachinky 465]

You've paid your lawyer for his advice. Now listen to it.

[kanda 0]

Was it an accident, what if it wasn't? a waiver of extreme hardship will be needed, this individual is inadmissible to the US. The US Consulate might look at the conviction differently.

So, it was definitely an accident and the court papers make that clear. Nonetheless, it looks like we may need to see about a waiver. Thanks.

[kanda 0]

Ok, the "homocidio culposo" and abandoning his post are both inadmissible crimes. There would be an exception if the maximum sentence was one year or less, and the imposed sentence was six months or less. An I-601 hardship waiver may be possible, but not if the consulate concludes that "homicidio culposo" constitutes murder. No waiver can be granted for someone convicted of murder or torture, or conspiracy to commit murder or torture.

I would listen to your attorney here.

I'm now understanding some of the things my lawyer had asked about in the past, the purpose of which hadn't been fully explained. My fiance had an opportunity to re-enter the police by paying a bribe, but he did not do so. The lawyer really wanted some documentation of this and I think it was to demonstrate lack of moral turpitude. However, since he didn't pay the bribe, we don't have that proof - irony!!

Would "homicidio culposo" be inadmissible in this case, since he received no jail time and no punishment other than probation? He had originally been charged with "homicidio simple", which is often translated as voluntary manslaughter, but that charge was converted/reduced once the evidence was viewed. Although it's difficult to come up with a precise translation, homicidio culposo seems to connote involuntary and/or negligent manslaughter -- unfortunately these definitions seem to vary by country (in Colombia, the same charge appears to carry a 2-6 year sentence). This was a freak accident and that's how the court saw it. But the conviction of "homicidio culposo" would constitute inadmissibility regardless of the other factors?

Thanks very much for your advice. I feel much better to know that seeking a waiver might provide another option for us; we'll need to extend my petition which expires in early June, but that's a much better alternative than a rejection

Edited April 1, 2011 by kaitlynva

[Amy and Nick 37]

You state that

This isn't an accurate story, but it's what's in the documents that we'll have to present

but later say

This was a freak accident and that's how the court saw it

Its good that you have retained a lawyer for your situation, but can I ask, are you disputing the courts decision, or are you saying that they got it right?

[kanda 0]

Its good that you have retained a lawyer for your situation, but can I ask, are you disputing the courts decision, or are you saying that they got it right?

There are two different cases here, the judicial case and the police case. They got the judicial case right but the police case is a nightmare. However, we don't have much choice but to stick with the court records.

The circumstances were severely and deliberately misrepresented - he did not abandon his post, and he was certainly not drunk at a bar. There's lots of dangerous sketchiness involved here. There was no trial related to his police charges, he was simply handed a sentence.

We don't have proof of what really happened, and trying to get proof could be extraordinarily dangerous for my fiance and potentially his entire family. We aren't in a position to dispute anything here (everything was formally archived years ago anyhow).

Luckily, the evidence (wound position, testimony, etc) made the physical events that had taken place fairly obvious. This is why his charge was reduced from "homicidio simple" to "homicidio culposo". That part, they got right. He was threatened, he grabbed his gun, the other man physically threw him off balance, the gun went off, the other man was shot and died from his wounds (they were in the middle of the jungle without access to medical care). I don't mean to be flippant about the loss of a life, but my fiance has already paid heavily for this unfortunate series of events that occurred when he was only 22.

[Brother Hesekiel 2,236]

Kaytlyn,

when trying to downplay the whole . . . umm . . . incident, it is comparable with vehicular manslaughter. Guy gets behind the wheel, had only one drink, horrible "accident" . . . somebody dead.

Here we have a person who go shot by your fiance in a bar. The circumstances surrounding this, your fiance's young age, the fact that he was a cop who shouldn't have been in that bar with a gun in the first place, the fact that he got in a fight . . . all these circumstances play into the sentencing. This is why courts and judges have a certain discretion when it comes to this. However, even if you look at this though the pink-colored glasses of a fiance defending her partner, it is what it is and somebody died who did not have to die, because of your fiance's actions.

Naturally, the US consulate will have a very close look at this, and who could blame them? Therefore, I'd say your lawyer knows best. He or she knows your case intimately and the fact that he or she advised you to hold on for a minute installs confidence in me.

[kanda 0]

Thanks Bob.

Since I know more about what really happened, I admit that it is hard for me to step back and look only at the rulings as they are and as they'll be seen at the consulate (and, hopefully, later at the AOS stage). I'm glad that we can get outside opinions, both from you guys and from the lawyers, to help us understand what the reaction will be. My first reaction to your post is "no, but he wasn't drinking!! they made that part up!!"... but in the eyes of USCIS he was, and that's what we'll need to move forward with. We're talking about drug cartels here, and their collusion with local police at higher levels, and the destruction of a subordinate's life in order to maintain that relationship. When my fiance talks about this in Peru (which he very rarely does, as it's dangerous), people understand that those are the implications.

But that's not the reading USCIS will take, and it is what it is.

So, stepping back, looking at it as something similar to vehicular manslaughter... I think we can accept and move forward with that. We can try to keep that perspective, and your response helps me see it in that light. My lawyer hasn't said yet that she thinks he may be ineligible, or that a waiver will be necessary, but we should find out soon enough.

Thanks again!

[Used to be broken 148]

Thanks Bob.

Since I know more about what really happened, I admit that it is hard for me to step back and look only at the rulings as they are and as they'll be seen at the consulate (and, hopefully, later at the AOS stage). I'm glad that we can get outside opinions, both from you guys and from the lawyers, to help us understand what the reaction will be. My first reaction to your post is "no, but he wasn't drinking!! they made that part up!!"... but in the eyes of USCIS he was, and that's what we'll need to move forward with. We're talking about drug cartels here, and their collusion with local police at higher levels, and the destruction of a subordinate's life in order to maintain that relationship. When my fiance talks about this in Peru (which he very rarely does, as it's dangerous), people understand that those are the implications.

But that's not the reading USCIS will take, and it is what it is.

So, stepping back, looking at it as something similar to vehicular manslaughter... I think we can accept and move forward with that. We can try to keep that perspective, and your response helps me see it in that light. My lawyer hasn't said yet that she thinks he may be ineligible, or that a waiver will be necessary, but we should find out soon enough.

Thanks again!

A waiver might be involved. The idea of the lawyer to postpone is sound not only from the research aspect but for the interview preparation. Your fiance is going to be grilled at the Consulate on this most likely so he needs to be prepared for that like any legal proceeding. He has to keep his answers brief, yes, no if possible and no elaboration that might "hang" him on some other issue or open another can of worms not related to what you are already dealing with.

[kanda 0]

He has to keep his answers brief, yes, no if possible and no elaboration that might "hang" him on some other issue or open another can of worms not related to what you are already dealing with.

Yes, this will be a challenge for us. I'll make sure that he knows how important the preparation is; and you're right, we probably couldn't get through all of that by Thursday morning.

[kanda 0]

Update in case anyone ends up looking at this in the future... we were able to get all of the sentencing documents together and our lawyer wrote up an argument that the crimes did not demonstrate moral turpitude. According to our lawyers, the crimes he was convicted of do not necessarily signify inadmissibility. This packet was put together quickly, and we were able to keep our original interview date (*today!*). This saved us a LOT of money/time/frustration, and will allow my fiance to return to his hometown and job.

The interviewer at the Lima embassy was shocked to see these papers. Initially she thought it was very suspicious that he was reporting these crimes although his Police, Judicial and Penal background checks were all clear. However, she seemed to have been new to the job, per my fiance, and she consulted (loudly and animatedly) with several other workers. They asked my fiance very little, though he was prepared to answer questions. Mostly, they pored over the papers and talked amongst themselves (within earshot of everyone else in the room).

Eventually they decided that, since there was a packet from the lawyer, it should be taken under consideration. I am SO HAPPY that we worked through this with a lawyer.

We didn't receive any "colored paper"/request for additional information. They took his passport and said they'll send it to him after the decision is made. We're not sure how long that will be, but I'll continue to update in case someone encounters a similar situation in the future.

[Deputy Purple 1,294]

At most Embassies if they keep the applicant's passport it's because they are leaning towards an approval. They probably just need to check further up the ladder to be sure that it doesn't trigger a waiver requirement before approving & printing his Visa.

[pushbrk 13,438]

At most Embassies if they keep the applicant's passport it's because they are leaning towards an approval. They probably just need to check further up the ladder to be sure that it doesn't trigger a waiver requirement before approving & printing his Visa.

Lima tends to be pretty straight forward in that way, but Conoff's leanings don't always get past the senior staff review. Hope for the best.

[JimVaPhuong 4,864]

Good Luck! I hope your attorney's arguments are sufficient to convince them.

To answer your previous questions:

Would "homicidio culposo" be inadmissible in this case, since he received no jail time and no punishment other than probation? He had originally been charged with "homicidio simple", which is often translated as voluntary manslaughter, but that charge was converted/reduced once the evidence was viewed. Although it's difficult to come up with a precise translation, homicidio culposo seems to connote involuntary and/or negligent manslaughter -- unfortunately these definitions seem to vary by country (in Colombia, the same charge appears to carry a 2-6 year sentence). This was a freak accident and that's how the court saw it. But the conviction of "homicidio culposo" would constitute inadmissibility regardless of the other factors?

Manslaughter, whether voluntary or involuntary, is usually considered a crime involving moral turpitude. However, for all crimes involving moral turpitude, there is an exception in the immigration law if the crime carries a maximum sentence of 1 year or less, and if the imposed sentence was six months or less. Since the maximum sentence is beyond 1 year then it doesn't matter how long his actual sentence was - the exception doesn't apply.

Your attorney appears to be taking this one step at a time, which is wise. In the first step, your attorney is trying to convince the consulate that this conviction is not the same as "manslaughter", and so should not be considered an inadmissible crime. If that fails (I suspect it might) then I suspect the second step will be to try to convince the consulate that this conviction isn't "murder", and so is eligible for a hardship waiver.

Regardless of the maximum penalty, your attorney has a good chance of convincing them that abandoning his post is not a crime involving moral turpitude. Similar cases involving desertion from foreign military services have been found not to be crimes involving moral turpitude, especially when the deserter was a conscientious objector. Abandoning his post is far less serious than desertion.