Denied IR-1 under 212(a)(2)(A)(1) - CIMT

[lz7782 0]

Hello everyone.

 

After 22 months of waiting for the paperwork for my spousal visa to be processed, we had a bit of a shock when I was denied for having a crime involving moral turpitude on my record. The only reason this was a shock was that our attorney had advised that while the consular officer could make a mistake, this was a point of law and we should be ok.

 

The technical argument is that the offence does not directly map to an offence in the US, and it is divisible, so some aspects can be considered a CIMT and some cannot. The court records no longer exist as this took place so long ago (and I have confirmation from the court on this point). The closest offence under US law is explicitly not considered a CIMT. The brief from our attorney argued:

 

Quote

To be a crime involving moral turpitude under INA 212(a)(2)(A)(i)(1), the offence must require a showing of depraved or evil intent to convict and this offence does not. Given that the corollary US offence is not deemed a crime of moral turpitude and that the description of the offence includes conduct that is not inherently vile, base or depraved, this offence is not a crime involving moral turpitude.

 

The consular officer disagreed with this, and did not give me any real detail as to why. Our attorney remains confident that she is correct, and we have submitted an enquiry to LegalNet as she believes this is a mistake on a point of law, and not a judgement from the consular officer.

 

If anyone has been in a similar situation, or has knowledge of how this will all work, I'd really appreciate hearing about your experiences. There is very little online about LegalNet, but we've been warned that they are not currently operating within their target timeframes for resolution.

 

I think I'll make a good candidate for a waiver based on rehabilitation, but would obviously prefer not to have to wait another two years with the ongoing risk that the waiver is also denied.

[Crazy Cat 45,922]

1 hour ago, lz7782 said:

so some aspects can be considered a CIMT and some cannot.

There you go.  This administration is serious about visas.  Hopefully, the consulate will apply the law accurately.  So, the consulate officer says a waiver is available?

Edited 1 hour ago by Crazy Cat

[JeanneAdil 7,416]

A better definition according to USCIS 

 

https://www.uscis.gov/policy-manual/volume-12-part-f-chapter-5

 

Crime involving moral turpitude” (CIMT) is a term used in the immigration context that has no statutory definition. Extensive case law, however, has provided sufficient guidance on whether an offense rises to the level of a CIMT. The courts have held that moral turpitude “refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.”^[3]

 

Whether an offense is a CIMT is largely based on whether the offense involves willful conduct that is morally reprehensible and intrinsically wrong, the essence of which is a reckless, evil or malicious intent. The Attorney General has decreed that a finding of “moral turpitude” requires that the perpetrator committed a reprehensible act with some form of guilty knowledge.^[4]

 

The officer should consider the nature of the offense in determining whether it is a CIMT.^[5] In many cases, the CIMT determination depends on whether the relevant state statute includes one of the elements that involves moral turpitude. For example, an offense or crime may be a CIMT in one state, but a similarly named crime in another state may not be a CIMT because of differences in the definition of the crime or offense. The officer may rely on local USCIS counsel in cases where there is a question about whether a particular offense is a CIMT.

[lz7782 0]

30 minutes ago, Crazy Cat said:

There you go.  This administration is serious about visas.  Hopefully, the consulate will apply the law accurately.  So, the consulate officer says a waiver is available?

 

Yes I was told I'm eligible to apply for a waiver. 

 

As long as the law is applied accurately I can have no complaints. As mentioned, my attorney believes a mistake has been made in the application of the law, but that doesn't mean that she's correct.

 

My understand is that LegalNet exists for a Government lawyer to review a decision made by the consular officer, who is not legally trained, to judge if a mistake has been made on a point of law.

 

Any light that anyone can shed on the LegalNet process would be much appreciated.  

[lz7782 0]

18 minutes ago, JeanneAdil said:

A better definition according to USCIS 

 

https://www.uscis.gov/policy-manual/volume-12-part-f-chapter-5

 

Crime involving moral turpitude” (CIMT) is a term used in the immigration context that has no statutory definition. Extensive case law, however, has provided sufficient guidance on whether an offense rises to the level of a CIMT. The courts have held that moral turpitude “refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.”^[3]

 

Whether an offense is a CIMT is largely based on whether the offense involves willful conduct that is morally reprehensible and intrinsically wrong, the essence of which is a reckless, evil or malicious intent. The Attorney General has decreed that a finding of “moral turpitude” requires that the perpetrator committed a reprehensible act with some form of guilty knowledge.^[4]

 

The officer should consider the nature of the offense in determining whether it is a CIMT.^[5] In many cases, the CIMT determination depends on whether the relevant state statute includes one of the elements that involves moral turpitude. For example, an offense or crime may be a CIMT in one state, but a similarly named crime in another state may not be a CIMT because of differences in the definition of the crime or offense. The officer may rely on local USCIS counsel in cases where there is a question about whether a particular offense is a CIMT.

 

Thank you. this is also a good resource for how CIMT is defined and how consular officers are advised to make their decisions:

 

https://fam.state.gov/fam/09FAM/09FAM030203.html

 

This is the section that advises Consular Officers, and b(2) is the relevant part for divisible statutes under foreign law.

 

9 FAM 302.3-2(B)(5)  (U) Determining Whether a Statute Is a Crime Involving Moral Turpitude

(CT:VISA-2009;   06-11-2024)

a. (U) Provisions of Law Defining an Offense:  Where the record clearly shows the conviction to be predicated on one specific provision of law, whose terms embrace only acts that are offenses involving moral turpitude, that supports a conclusion that the conviction was for a crime that involves moral turpitude.  The statutory definition of the offense will determine whether the conviction involves moral turpitude.  Each separate provision of law defining an offense must be read in conjunction with such other provisions of law as are pertinent to its interpretation.

b. (U) Divisible Statutes Under U.S. And Foreign Law:

(1)  (U) If the provision of law on which a conviction is predicated has multiple sections, only some of which involve moral turpitude, evaluate the nature of the act to determine if the conviction was predicated on the section of the statute involving moral turpitude.  If the divisible statute in question is part of the law of one of the U.S. states, you may only examine the charge, plea, verdict, and sentence in assessing the presence of moral turpitude in the certain act for which the conviction was obtained.

(2)  (U) If the statute in question is a foreign law, you may assess the presence of moral turpitude in the act for which conviction has been obtained by reference to any part of the record or from admissions of the applicant.  The applicant must provide you with copies of any relevant laws that will allow you to make this determination.