K1 Visa - Arrest/Charge (Domestic?) Question

[JCFZ 7]

Hello everyone,

 

I am in the process of gathering all of the paperwork for filing the I-129F. I have a question regarding a simple assault charge I had in the past.

 

In 2008, when I was 18 years old, I got in a fight with my little brother, 16 years old. Our mom called the police to diffuse the situation and teach us a lesson. I was arrested and charged with simple assault. Eventually, the case was dismissed. The record of arrest has since been expunged and the file destroyed. (I have all of the paperwork). 

 

According to the I-129F,  "The term 'domestic violence' includes felony or misdemeanor crime of violence committed by a person.
(1) Who is a current or former spouse of the victim;
(2) With whom the victim shares a child in common;
(3) Who is cohabitating with or has cohabitated with the victim

...

At that point I was no longer living with my brother. However, I did live with him during years prior. 

 

Does this mean I am going to have to answer YES for this question? I am terrified that if I must answer yes, this will raise a flag for me as a domestic issue. I have a completely clean record since this incident. 

 

I would very much appreciate any insight.

 

Thanks so much in advance. 

 

[Ty/Ir 32]

I answered yes to questions about a minor crime. There is a place for you to explain the situation at the end of the packet. If it were me, I would answer yes and then emphasize that this happened at 18 years old and it was with a brother. To me this sounds like just every day sibling turbulence and if you explain the situation then whoever is evaluating your petition will probably be understanding too. I can't give much insight into the process but if I had to guess they are really looking for things like wife beating, child abuse and elder abuse. Not teenage boys brawling. 

 

Of course you could always omit this incident and hope to God USCIS doesn't dig it up; they might not. But I can tell by the OP if you go for this option you will be stressed out for the duration of the process. Be sure to thank your mom for this potentially life-defining lesson.

[JCFZ 7]

Thanks for your reply, Tyler26.

 

I definitely will be answering yes that I was charged for simple assault. However, I'm just unsure of whether or not to respond YES to the question specifically about domestic incidents. Nowhere on any of the police/court documents does it say anything about domestic violence. It just says simple assault for all of them. 

 

 

[Ty/Ir 32]

12 minutes ago, jc22 said:

Thanks for your reply, Tyler26.

 

I definitely will be answering yes that I was charged for simple assault. However, I'm just unsure of whether or not to respond YES to the question specifically about domestic incidents. Nowhere on any of the police/court documents does it say anything about domestic violence. It just says simple assault for all of them. 

 

 

Well the question that mentions domestic violence does so to the effect of "have you ever been arrested or convicted of domestic violence, x, y, or z." So since your docket says something other than the listed charges I'd answer no. I'm curious what other people will recommend. 

Edited March 24, 2019 by Tyler26

[JCFZ 7]

3 hours ago, Tyler26 said:

Well the question that mentions domestic violence does so to the effect of "have you ever been arrested or convicted of domestic violence, x, y, or z." So since your docket says something other than the listed charges I'd answer no. I'm curious what other people will recommend. 

After looking back at the original docket just now, it does in fact have a box ticked next to Domestic Violence Related.

 

I must say this makes me quite nervous... could this realistically be a reason for our case getting denied?

 

Thanks again for your help. 

[carmel34 3,507]

All you can do is declare everything, be completely honest, provide the documentation and an explanation about the arrest context, and hope for the best.  It is impossible to predict what the CO will determine, but it is always best to be honest about everything as they will most likely find this arrest on your record when they do the background check.  There have been people here on VJ who ran into problems and were denied a K-1 because they omitted on the I-129 a past arrest even though it was minor and it was the false I-129 that got them in trouble and denied, not the seriousness of the arrest.  So it's always best to be honest and in your case it should not be a problem given on what you've said here, two brothers having a fight.  Good luck!

[ourjourney_pc 118]

12 hours ago, jc22 said:

Thanks for your reply, Tyler26.

 

I definitely will be answering yes that I was charged for simple assault. However, I'm just unsure of whether or not to respond YES to the question specifically about domestic incidents. Nowhere on any of the police/court documents does it say anything about domestic violence. It just says simple assault for all of them. 

 

 

To answer the op question 

 

 

 

you weren't living with him that time.. In case can you prove that? Was your permanent address taken during that time? 

 

 

 

I would answer "no" since you mentioned that its nowhere stated that it was domestic violence rather its an assault. 

 

 

 

 

 

 

[Ate 180]

2 hours ago, ourjourney_pc said:

I would answer "no" since you mentioned that its nowhere stated that it was domestic violence rather its an assault.

 

11 hours ago, jc22 said:

After looking back at the original docket just now, it does in fact have a box ticked next to Domestic Violence Related.

 

[nullaccount234 882]

I assume the simple assault was charged as a misdemeanor? I know you didn't live with him at the time, but the question asks if you ever have - not just when the crime occurred. Say yes, because you will definitely have to tick yes for another question in the I-129F about past crimes, so the charge will come up anyway.

 

We had a VJ member (petitioner) who got denied at the very end of the K1 process after his fiancée had been to her interview, and was seemingly approved, but then while processing the visa they found out he had expunged records of what I think was an assault/battery years ago. That member had to scrap the K1, get married and start all over with a spousal visa. 

 

@geowrian Anything to add? Is it better for OP to just do spousal - I mean is there any way he might not overcome the K1 IMBRA-related questions, or is it just about being straightforward?

[JunkTardis 183]

18 hours ago, jc22 said:

Hello everyone,

 

I am in the process of gathering all of the paperwork for filing the I-129F. I have a question regarding a simple assault charge I had in the past.

 

In 2008, when I was 18 years old, I got in a fight with my little brother, 16 years old. Our mom called the police to diffuse the situation and teach us a lesson. I was arrested and charged with simple assault. Eventually, the case was dismissed. The record of arrest has since been expunged and the file destroyed. (I have all of the paperwork). 

 

According to the I-129F,  "The term 'domestic violence' includes felony or misdemeanor crime of violence committed by a person.
(1) Who is a current or former spouse of the victim;
(2) With whom the victim shares a child in common;
(3) Who is cohabitating with or has cohabitated with the victim

...

At that point I was no longer living with my brother. However, I did live with him during years prior. 

 

Does this mean I am going to have to answer YES for this question? I am terrified that if I must answer yes, this will raise a flag for me as a domestic issue. I have a completely clean record since this incident. 

 

I would very much appreciate any insight.

 

Thanks so much in advance. 

 

Declare it, explain it. If it comes up at interview, explain it there too. The goal here is to demonstrate you aren't being deceptive. To hide it would be a big risk if they dig it up, and would look very bad on you if they ask why you weren't forthcoming. This shouldn't stop you from being successful to get into the US. Just show an honest character trait to USCIS and you'll be golden.  

[Ty/Ir 32]

52 minutes ago, LizM said:

We had a VJ member (petitioner) who got denied at the very end of the K1 process after his fiancée had been to her interview, and was seemingly approved, but then while processing the visa they found out he had expunged records of what I think was an assault/battery years ago. That member had to scrap the K1, get married and start all over with a spousal visa. 

That's interesting that they could find an expunged record. The implication of expungement is that the records are completely obliterated. Perhaps this was actually a sealed record or dismissed or something? I attempted to collect records I had that were expunged but the court told me there was nothing to collect; it was a legal equivalent to the incident having never occurred. 

[geowrian 22,335]

27 minutes ago, Tyler26 said:

That's interesting that they could find an expunged record. The implication of expungement is that the records are completely obliterated. Perhaps this was actually a sealed record or dismissed or something? I attempted to collect records I had that were expunged but the court told me there was nothing to collect; it was a legal equivalent to the incident having never occurred. 

A record of the case remains in the system even after expungement. It is not accessible in public records, though.

https://criminal.findlaw.com/expungement/expungement-basics.html

[carmel34 3,507]

28 minutes ago, Tyler26 said:

That's interesting that they could find an expunged record. The implication of expungement is that the records are completely obliterated. Perhaps this was actually a sealed record or dismissed or something? I attempted to collect records I had that were expunged but the court told me there was nothing to collect; it was a legal equivalent to the incident having never occurred. 

Based on many VJ member posts, even expunged records can still be found in background checks by a federal agency.  Evidently expunged records are only expunged for some searches (local, standard background checks, etc.) but not all.  The arrest or conviction is still on record as others have learned the hard way.

[Mollie09 1,543]

2 hours ago, Tyler26 said:

That's interesting that they could find an expunged record. The implication of expungement is that the records are completely obliterated. Perhaps this was actually a sealed record or dismissed or something? I attempted to collect records I had that were expunged but the court told me there was nothing to collect; it was a legal equivalent to the incident having never occurred. 

This is never ever ever the case - nothing gets obliterated like this, even if it does by some fluke it's way better not to count on it happening.

[JCFZ 7]

Thank you to all who replied! I sincerely appreciate your insight and advice.

 

So, I will be answering YES to Domestic Violence question.. However, I have one more question:

 

I contacted the court through which this case was processed. In 2016 the charge was expunged in the file destroyed. Therefore, I am not able to obtain a certified copy of the charges and disposition. The clerk at the court said she was unable to provide this since the file no longer exists. All I have is the certified certificate of annulment of the charge which does show that the case was dismissed. Do you think stating this in the letter of explanation along with the certificate of annulment will suffice?

 

Thank you