Will we need a waiver?

[garyandkris 0]

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.

[zyggy 9]

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...

Edited February 7, 2007 by zyggy

[YuAndDan 153]

Any offense that shows up on a police report.

There are some exceptions.

(2) Criminal and related grounds.-

(A) Conviction of certain crimes.-

(i) In general.-Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense or an attempt or conspiracy to commit such a crime), or

(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible.

(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).

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.

[garyandkris 0]

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.

[garyandkris 0]

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?

[DelcoCouple 1]

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

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.

[Caladan 19]

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.

[DelcoCouple 1]

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

(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?)

.......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.

[Caladan 19]

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.

[DelcoCouple 1]

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 )

[garyandkris 0]

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.

[garyandkris 0]

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;

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.

[kitkat1 5]

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

[DelcoCouple 1]

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;

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.

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.

[zyggy 9]

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...