I am a us citizen n recently received a i-130 petition approval for my husband. He came to the country illegally n 1998. In 2005 he was convicted of a misdemeanor for corporal injury to a child (my child) he was sentenced to 30 days work program , parenting classes n anger management class n 36 mos probation of which he completed all of it successfully. I know he will need to complete a waiver for illegal presence but will he be found inadmissable for the conviction due to mortal torpitude. It seem from my research it is very hard to tell because his charge carried a max sentence n ca of up to 1 year for a misdemeanor n county jail. Please advise thanks so much n advance
You really need to talk to an immigration lawyer who can review all the documents from the conviction and give you a better idea. Without seeing them, it's hard to say exactly how this could affect him. It is serious enough that you should speak with a lawyer before moving forward with his application.
The immigration consequences of convictions depend on the exact language of the statute under which the conviction took place.
You need to retain an experienced immigration lawyer to review all the facts, including the court disposition and the charging documents, in order to advise you, and handle the case.
You are right as to the Waiver for illegal presence, that will be filed after he departs the United States of America to attend his American Embassy Interview to obtain his immigrant visa.
The grounds of inadmissibility are contained in Section 212 (a) of the Immigration and Nationality Act as amended. Once reviewing the grounds of inadmissibility you will find in section 212(a)(2)(A) of the Act: Criminal and Related Grounds (A) Conviction of certain crimes (i) In General: "Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of (I) a Crime involving moral turpitude ( other than a purely political offense) or an attempt or conspiracy to commit such a crime"..... Is Inadmissible.
The INA states that the Clause (i) " the above stated clause" shall not apply to an alien who committed only one (1) crime and provides two particular events, the one that applies to your case will be that the maximum penalty possible for the crime of which the alien was convicted ( or he admitted having committed) did not exceed imprisonment for one year and if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months ( regardless of the extent to which the sentence was ultimately executed).
Now that we have the statutory provision that applies to your case, we must apply the elements of the statutory provision to the elements of your case to reach a legal conclusion that will respond to your question.
Therefore, the issue is whether your husband an illegal alien that is seeking to be admitted to the United States as an Immigrant based on an approved Petition for Alien Relative filed on his behalf by his United States Citizen Spouse will be denied admission because of a 2005 conviction for corporal injury to a child (the US Citizen Spouse Child) and as a result received a sentence of 30 days work program, parenting and anger management classes in addition to 36 months probation which he satisfactorily completed.
Application of the law to the Facts:
Your husband was convicted of a crime of moral turpitude because according to the BIA Corporal Injury to a child is a crime of moral turpitude, therefore, this element has been satisfied.
For purposes of Immigration Law, we must look at the California Penal Code section for which your husband was charged, prosecuted and found guilty and look at the maximum penalty possible for the violation of such a statutory provision. CP 273(d). Under California Penal Code, if the crime occurred in California, I am not sure, looking at the code the crime carries a maximum possible penalty of 6 years ( if charged as a felony) in a state prison, and if charged as a misdemeanor of a one year.
Here, it appears that your husband was charged of a misdemeanor in a statutory provision that offers two possible sentences depending whether the case is a felony or misdemeanor what it makes this section a divisible statutory provision and therefore this fact must be presented in extreme detail to the american consul at the time of the visa interview to avoid the possible and not uncommon decision of treating this crime as if not covered by the exception to the criminal and related grounds of inadmissibility based on the commission of a crime of moral turpitude.
The sentence he received was less than 6 months in prison therefore, if the CP provision is considered a divisible statute and the american consulate overseas accept this interpretation of the law and the way it is presented, he will be under the exception to the ground of inadmissibility based on commission of a crime of moral turpitude if that crime is the only crime he has committed. If not accepted, there is a waiver 212(h) based on extreme hardship to US spouse and you are the qualifying relative and the waiver must be professionally prepared.
It appears from the information provided that he has been convicted of a crime involving moral turpitude. However, if he was convicted of only one count, has never been convicted of any other crimes involving moral turpitude and since he was sentenced to serve less than 180 days for this misdemeanor offense, he is not inadmissible and a waiver is not required since his crime would fall under the petty offense exception of the Immigration and Nationality Act.
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