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

[W199 537]

7 hours ago, lz7782 said:

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:

 

 

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.

 

Well, no criminal ever thinks they are guilty or what they did was so bad, and every lawyer thinks they are right especially when you pay them.  

 

Its weird that you think your crime should not count as CIMT, yet you do not want to even anonymously disclose it (which could be useful as some may have experience or such with it).  

 

>> The closest offence under US law is explicitly not considered a CIMT. The brief from our attorney argued:

I don't see why this is relevant or even a point of law.  "closest" implies it is not the same crime so that doesn't apply.  Law doesn't work by "closest crime".  Its very specific.   And I don't know any law or requirement that the CIMT law does not apply if you are convicted of a CIMT in your country but in USA, it would be considered a different type of crime.  

 

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

You are admitting that some aspects of it are CIMT. Therefore, I don't see why you think the officer made a mistake.

 

The visa officer has a wide range of discretion and arguing a technicality is not likely to be a way to win the case, IMO.  Seems like you should file a waiver with an abundance evidence of why they should overlook the crime, rather than telling them they made a legal mistake.  But that is just my guess, you should follow your attorney.

 

 

 

 

 

[Ban Hammer 14,803]

it's rather difficult for anyone to offer meaningful advice when the full story is not given.