CIMT - Maximum Penalty - Exclusion Clause.

[Cece_Bloom 0]

I would like to apply for a US Immigrant Visa HOWEVER I have been convicted of a crime in England, UK and may be found admissible.  

 

I am trying to figure out if I would be eligible for the Petty Crime Offense Exception.

 

Things to know: 1.) it was definitely a CIMT 2.) it has since been spent, conditionally discharged after 12 month (5 years has now passed) 3.) it does show on my police certificate and I have obtained a Memorandum of conviction from the magistrates court 4.) I served no jail time but I had to pay a fine or 330 pounds (mostly due to court fees) 5.) I was over 18. 

 

What I am unsure of: 1.) the maximum penalty possible for my crime?

 

I know that in order to fall under this petty crime exception, I must tick the following: 1.) only 1 CIMT conviction ever (yes), 2.) served no more than 6 months imprisonment (yes, he served nothing), and 3.) the maximum possible penalty was less than 1 year imprisonment (???) 

 

Details of crime is as follows: 1.) Burglary and theft - dwelling (TH68036) Contrary to section 9(1)(b) of the Theft Act 1968. 2.) Guilty 3.) Disposal - conditional discharge 12 month and a fine of 330 pounds 4.) Magistrates Court. 

 

Maximum Penalty: According to the legislation in the Theft Act 1968 it states:

(3)A person guilty of burglary shall on conviction on indictment be liable to imprisonment for a term not exceeding—

(a)where the offence was committed in respect of a building or part of a building which is a dwelling, fourteen years;

(b)in any other case, ten years.

 

What I would like to know....

 

A) I was tired and sentenced in a Magistrates court, which in England can only give out a maximum penalty of 6 months for one conviction. So do I fall under the petty crime offence exception? 

 

B) Does the theft Act 1968 not apply to me, because I was not convicted on indictment? 

 

C) On my court record, it stated 'contrary' to section9(1)(b) of the theft act 1968 - what does this mean? I have included the section (9) below:

9Burglary.

(1)A person is guilty of burglary if—

(a)he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below; or

(b)having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.

(2)The offences referred to in subsection (1)(a) above are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm F1... therein, and of doing unlawful damage to the building or anything therein.

[F2(3)A person guilty of burglary shall on conviction on indictment be liable to imprisonment for a term not exceeding—

(a)where the offence was committed in respect of a building or part of a building which is a dwelling, fourteen years;

(b)in any other case, ten years.

(4)References in subsections (1) and (2) above to a building, and the reference in subsection (3) above to a building which is a dwelling, shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there as well as at times when he is.

 

 

Please may you help me. I would greatly appreciate any advice or explanation to my question above. 

Thank you in advance. 

 

[JFH 12,189]

Highly unlikely that burglary will fall under the petty offense exception. For immigration purposes convictions are never “spent”. You will need to go through the process and see if you are recommended for a waiver. That’s not anything anyone can tell at this stage as it is entirely the decision of the consular Officer who interviews you. 
 

Have you entered the US before with any other visa type?

[zochu 255]

My understanding is, it’s based on what the US considers a petty offence? Not how the UK defines it but how the US defines it.

so I don’t think it really matters what the UK laws say but how they translate into US law? 
 

I could be wrong. 
 

Maybe consult a lawyer and prepare for the fact you may need a waiver. 
 

 

there is actually a UK barrister who is also a US lawyer in Southern California who does immigration law. I think he will be your best bet. I’ll try and find his details. 

Edited August 6, 2020 by zochu

[Cece_Bloom 0]

Hello,

 

Thanks to both of you for your replies. 

 

No, I have not entered US on a different visa before.

 

No, I think the legislation for the crime is based on the law 'acts' from the country in which one was convicted in.

 

It is actually cheaper for me to go down the visa process than it is for me to hire a lawyer, so looks like I will apply and see what happens. With Covid, it may not even happen however, If I do. I will post my results on this thread.