Refused incorrectly by consular officer error regarding petty offence?

[PennyDoe 0]

I’m Canadian living in Canada, my spouse is a US citizen. I have been in the process of getting an IR1 visa for about 3 years. I finally had my interview this week at the consular office in Montreal. However, I was denied and told I was inadmissible to the US due to my criminal record. I have one offence on my record from almost 15 years ago for shoplifting when I was 18. I knew this was likely considered a “crime of moral turpitude” however the Immigration Act explicitly lays out an exception around petty offences. I fall into this definition - only 1 offence, maximum penalty possible according to the Canadian criminal code was 6 months imprisonment, I served no jail time (I received an absolute discharge). I brought all of this information to the interview, but the officer did not even ask me about he. He asked me about my spouse for about 2 minutes then walked away and returned with the refusal based on a crime a moral turpitude. He said I could apply for a waiver but that was it. Is there anything I can do to have the decision reviewed or challenged by a supervisor or visa office as I believe this is an error since I meet the exception requirements and the Immigration says the inadmissibility “shall not apply” to an alien that falls within the exceptions. 

[Crazy Cat 43,716]

Welcome to Visa Journey.  Your case is no longer DIY, imo.  I would find a good immigration attorney who is experienced in hardship waivers. 

[Boiler 46,979]

When he walked away he was probably consulting with acsupervisor

 

Did you submit a brief explains why you were not subject to a bar

[PennyDoe 0]

34 minutes ago, Boiler said:

When he walked away he was probably consulting with acsupervisor

 

Did you submit a brief explains why you were not subject to a bar

I did in my NVC application when it asked about arrests and convictions. But not a separate document.

 

also I could see him walk over to the printer and then sign the refusal form. He never spoke to anyone, the whole process took 3 minutes. 

Edited Wednesday at 01:40 PM by PennyDoe

[PennyDoe 0]

41 minutes ago, Crazy Cat said:

Welcome to Visa Journey.  Your case is no longer DIY, imo.  I would find a good immigration attorney who is experienced in hardship waivers. 

I am looking for an attorney but I’m trying to find one that is actually familiar with requesting a review of a decision, if possible, rather than the waiver as the waiver would be my very last resort. 

[Boiler 46,979]

I would have thought any Lawyer would be able to do that.

[PennyDoe 0]

1 minute ago, Boiler said:

I would have thought any Lawyer would be able to do that.

The lawyer I spoke with said they did not know whether that was possible and that they strictly do waivers so I don’t know.

[Boiler 46,979]

I have not come across a lawyer who just does waivers, normally they would handle the whole case

[appleblossom 3,959]

1 hour ago, PennyDoe said:

I’m Canadian living in Canada, my spouse is a US citizen. I have been in the process of getting an IR1 visa for about 3 years. I finally had my interview this week at the consular office in Montreal. However, I was denied and told I was inadmissible to the US due to my criminal record. I have one offence on my record from almost 15 years ago for shoplifting when I was 18. I knew this was likely considered a “crime of moral turpitude” however the Immigration Act explicitly lays out an exception around petty offences. I fall into this definition - only 1 offence, maximum penalty possible according to the Canadian criminal code was 6 months imprisonment

 

I don't think you were incorrectly refused I'm afraid.

 

Can you share why you think it comes under the petty exemption? AFAIK, theft with a value of $5k or less has up to a 2 year maximum sentence under the Canadian criminal code so you are inadmissible and would need a waiver. https://laws-lois.justice.gc.ca/eng/acts/c-46/section-334.html

 

Best of luck. 

 

 

Edited Wednesday at 02:01 PM by appleblossom

[PennyDoe 0]

1 minute ago, appleblossom said:

 

Can you share why you think it comes under the petty exemption? AFAIK, theft with a value of $5k or less has up to a 2 year maximum sentence under the Canadian criminal code so you are inadmissible and would need a waiver.

 

Best of luck. 

 

 

Yes, the criminal code listed in my police check and on my court records specifically states “punishable by a maximum of 6 months imprisonment”. I’m not sure what code you’re referring to, I’m just pulling it directly from what’s on my court records. 

[appleblossom 3,959]

Just now, PennyDoe said:

Yes, the criminal code listed in my police check and on my court records specifically states “punishable by a maximum of 6 months imprisonment”. I’m not sure what code you’re referring to, I’m just pulling it directly from what’s on my court records. 

 

I added the link above after posting. 

 

That sounds like it was specific to your circumstances, rather than the maximum that could have been imposed under the law? You'd need to find the relevant law that shows it would have been a max 6 month sentence if that is the case using the criminal code linked to above - maybe your crime was classified differently to theft? 

 

 

[smilingstone 378]

This must be something to do with your specific circumstances, as my K1 application also contested with a minor offence (shoplifting at age 14, I'm 34 now). At my interview, I had my police records as well as a written explanation of the circumstances. The IO didn't bring it up so I mentioned a previous conviction when handing over my docs. His response was "I don't need to see that, we know." My interview was followed by a verbal approval.

 

Could it be to do with you being 18 at the time of offense? But I'd have thought that a clean record for 15 years would've provided you with a little grace. Did you fully explain the circumstances? Did you detail exactly what was stolen (therefore implying a value, if not explicitly stated)? When it comes to a term as broad as "theft", there is a big difference between shoplifting a chocolate bar and walking out with an amount higher in value, so it's really important to make the context clear to them.

 

I am sorry for your situation, and I'm not trying to detract from your experience with my own account. I just want to show other potential readers that it is possible to be approved under similar circumstances.

[Lemonslice 5,166]

This thread might be of interest to you

 

 

 

[appleblossom 3,959]

52 minutes ago, smilingstone said:

This must be something to do with your specific circumstances, as my K1 application also contested with a minor offence (shoplifting at age 14, I'm 34 now).

 

That would come under the 'minor exception', rather than the 'petty offence exception' which the OP was hoping for. https://fam.state.gov/fam/09FAM/09FAM030203.html#M302_3_2_B_7

 

 

[Boiler 46,979]

I am not familiar with Canadian Law and took the 6 months as a given, could you post under what code you were found guilty and the appropriate link?