Worried About My Conviction

Old Apr 11th 2018, 6:27 pm
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Default Re: Worried About My Conviction

On a more positive note inchoate is now part of my vocabulary.
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Old Apr 11th 2018, 7:50 pm
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Default Re: Worried About My Conviction

Originally Posted by crg View Post
I don't agree. Considering it's clearly a serious offense and complicated, I would want to make sure with the consulate and perhaps an attorney before commencing travel.

If he was encouraging/assisting looting (looting is theft and theft is a CIMT) with an 18mo custodial sentence then a waiver will be required.

ESTA is cheap. Getting booted back after paying for a flight and possibly getting in more trouble requiring legal assistance is not cheap.
Perhaps you’ve misunderstood. At no point am I suggesting he get on a flight without proper pre-authorisation. Be that in the form of an approved ESTA (with conviction declared) or a B visa, which he would receive from the embassy, perhaps following a waiver if applicable. Besides - no airline would let him board without one of the two.
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Old Apr 11th 2018, 9:30 pm
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Default Re: Worried About My Conviction

Originally Posted by S Folinsky View Post
The crime described appears to be what is called an "inchoate offense." Without reference to the "target offense" it is impossible to know the immigration effect. OP does not really State what the target offense is. It is usually the target offense that governs immigration effect.

The 20 month sentence makes the conviction one for a felony.
Criminal damage.
Burglary.
Violent disorder.

Thanks to everyone for your input.
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Old Apr 11th 2018, 10:51 pm
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Default Re: Worried About My Conviction

Originally Posted by Boiler View Post
On a more positive note inchoate is now part of my vocabulary.
It was not all that long ago that I learned the word myself. I was fortunate to have been taught criminal law by the late Rollin Perkins. He was an excellent teacher and he wrote the authoritative hornbook on the subject. Although the last edition of Perkins On Criminal Law was published in 1971, it is still cited by courts. So, I just looked at my well worn (autographed) copy and there is no use of the word "inchoate." All the issues in the concept are used, but not the word.

Then, about 15 years ago when many Immigration cases involving attempt, conspiracy, etc. sarted hitting the books, the discussions used the word a lot. So, I had to look it up. Now it's in my legal vocabulary. But that is one of the reasons I put the word in quotes.
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Old Apr 11th 2018, 11:16 pm
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Default Re: Worried About My Conviction

Originally Posted by Extra7 View Post
Criminal damage.
Burglary.
Violent disorder.

Thanks to everyone for your input.
That certainly makes it serious enough that an ESTA is totally out of the question. You will need to make an application for a US visa.

An experienced US immigration lawyer should be able to give you a rough idea of how likely such an application is to succeed, if you wanted to know the odds and decide whether it is worth the time and expense of trying.
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Old Apr 11th 2018, 11:29 pm
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Default Re: Worried About My Conviction

Originally Posted by materialcontroller View Post
That certainly makes it serious enough that an ESTA is totally out of the question. You will need to make an application for a US visa.

An experienced US immigration lawyer should be able to give you a rough idea of how likely such an application is to succeed, if you wanted to know the odds and decide whether it is worth the time and expense of trying.
I agree. And details can count. Classification of crime can be an extreme exercise in loophole threading.
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Old Apr 11th 2018, 11:32 pm
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Default Re: Worried About My Conviction

Originally Posted by materialcontroller View Post
That certainly makes it serious enough that an ESTA is totally out of the question. You will need to make an application for a US visa.

An experienced US immigration lawyer should be able to give you a rough idea of how likely such an application is to succeed, if you wanted to know the odds and decide whether it is worth the time and expense of trying.
I agree. And details can count. Classification of crime can be an extreme exercise in loophole threading.

(And talking about legal vocabulary, the term "categorigal approach" and "modifed categirical approach" give me a headache and I could not begin to explain.)
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Old Apr 12th 2018, 5:02 am
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Default Re: Worried About My Conviction

Originally Posted by TheKingOfHearts View Post
Perhaps you’ve misunderstood. At no point am I suggesting he get on a flight without proper pre-authorisation. Be that in the form of an approved ESTA (with conviction declared) or a B visa, which he would receive from the embassy, perhaps following a waiver if applicable. Besides - no airline would let him board without one of the two.
I see what you're saying. I may just have a different understanding of what an approved ESTA means (pretty much nothing). Having an approved ESTA and being admissible are very different things. The ESTA is very poorly worded and the issues of admissibility are extremely complex (juvenile offenses, single petty offenses, purely political, single scheme). No electronic system like that will likely ever make an accurate admissibility determination for someone with a record like that. Real people and lawyers with complete access to the court records often have to dig to figure it out and the legal landscape is constantly changing. For example: Stealing a car (usually a CIMT) vs. joyriding in a car (usually not). Possession of stolen property (usually not)vs. possession of property obtained by crime (usually a CIMT).

A person who did 20 months in the slammer should not be comforted by an ESTA approval because ESTA serves no purpose once they are on the plane other than waiving the person's right to contest admissibility once they arrive.

Detention in a facility could result and the border guard could allege fraud/misrepresentation on the ESTA application even if there was none. That could further complicate a waiver if one is needed. I'd rather try for the visa than possibly poop in a cell in front of a few dozen new friends from around the world.

Last edited by crg; Apr 12th 2018 at 5:12 am.
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Old Apr 12th 2018, 5:09 am
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Default Re: Worried About My Conviction

Originally Posted by S Folinsky View Post
It is possible for serious offenses not to involve moral turpitude. Hence my comments on inchoate offenses.
I agree. Some pretty unsavory things aren't CIMT. Things like involuntary manslaughter may not be. Paying for the services of a prostitute may not be. Illegally possessing of a firearm. Some B&E, assaults, putting slugs in the machine instead of a subway token.

Originally Posted by S Folinsky View Post
If memory serves me correctly, almost any criminal record dooms an ESTA.
DOS seems to agree with you when asked, even though they don't administer the program. It seems if you have an issue and want their opinion on admissibility, they want you to drop some money on a visa application.
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Old Apr 12th 2018, 8:41 am
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Default Re: Worried About My Conviction

Originally Posted by crg View Post
I see what you're saying. I may just have a different understanding of what an approved ESTA means (pretty much nothing). Having an approved ESTA and being admissible are very different things. The ESTA is very poorly worded and the issues of admissibility are extremely complex (juvenile offenses, single petty offenses, purely political, single scheme). No electronic system like that will likely ever make an accurate admissibility determination for someone with a record like that. Real people and lawyers with complete access to the court records often have to dig to figure it out and the legal landscape is constantly changing. For example: Stealing a car (usually a CIMT) vs. joyriding in a car (usually not). Possession of stolen property (usually not)vs. possession of property obtained by crime (usually a CIMT).

A person who did 20 months in the slammer should not be comforted by an ESTA approval because ESTA serves no purpose once they are on the plane other than waiving the person's right to contest admissibility once they arrive.

Detention in a facility could result and the border guard could allege fraud/misrepresentation on the ESTA application even if there was none. That could further complicate a waiver if one is needed. I'd rather try for the visa than possibly poop in a cell in front of a few dozen new friends from around the world.
agree...my husband travelled regularly on esta ever since it was introduced with absolutely no clue that he was inadmissible. the questions can be very ambiguous ...especially in the early days and with it is being valid for 2 years, its not as if you would think to readdress the questions each trip

Last edited by karenkaren1; Apr 12th 2018 at 8:46 am.
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Old Apr 12th 2018, 11:16 am
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Default Re: Worried About My Conviction

Originally Posted by karenkaren1 View Post
its not as if you would think to readdress the questions each trip


If an answer to any of the VWP eligibility questions changes then yes you should be reapplying for ESTA on the next trip. Thats your responsibility.
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Old Apr 12th 2018, 11:24 am
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Default Re: Worried About My Conviction

Originally Posted by az2014 View Post


If an answer to any of the VWP eligibility questions changes then yes you should be reapplying for ESTA on the next trip. Thats your responsibility.
to clarify: the reason for inadmissibility was related to a long forgotten incident which occurred 24 years ago. No circumstances had changed since. Luckily the co at the visa interview understood the ambiguity of the esta questions and although a waiver of inadmissibility is now needed.... there was no misrepresentation finding for erroneous esta usage

Last edited by karenkaren1; Apr 12th 2018 at 11:26 am.
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Old Apr 13th 2018, 6:51 pm
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Default Re: Worried About My Conviction

Thanks everyone for the comments and advice. I'm applying for an EB-2 visa based on "exceptional ability" in my field.
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Old Apr 13th 2018, 6:52 pm
  #29  
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Default Re: Worried About My Conviction

Originally Posted by Extra7 View Post
Thanks everyone for the comments and advice. I'm applying for an EB-2 visa based on "exceptional ability" in my field.
So you're seeking an immigrant visa??? Yeah that's going to be an uphill struggle.

I wish to enter to participate in sports competition and also to undertake training there
If sports is your profession, than an O-1 would be more appropriate. Non-immigrant visa would probably be viewed slightly more favorably.

Please clarify how you meet "members of the professions holding advanced degrees or their equivalent", and "individuals who because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States" with respect to sports?

I guess I'm confused, I think we all thought, based on your original post, that you were applying for a non-immigrant visa since you mentioned sports and that is not the purpose of the EB-2.

Last edited by civilservant; Apr 13th 2018 at 6:57 pm.
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Old Apr 13th 2018, 6:57 pm
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Default Re: Worried About My Conviction

Originally Posted by civilservant View Post
So you're seeking an immigrant visa??? Yeah that's going to be an uphill struggle.
Yes, I have enlisted the help of a US based immigration lawyer whose practice is centered on Sports Immigration into the United States. We have been though my application and he seems to believe that we have a fair chance.
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