Question About An Issue Of Ground Of Excludability with a Consulate : LUSENET : Immigration Law - Law Offices of Michael Boyle : One Thread

Whether or not single crime of moral turpitude should serve as the basis of inadmissibility under INA 212(a)(2)(A)(i)(1)?

Quick Background of Criminal & Immigration History In the U.S.

1) 1989 single count conviction (federal court) of Bank Fraud in violation of 18 U.S.C. Sec. 1344. I received, and served, a sentence of 8 months imprisonment. 2) On February 1989, based on IJ decision, the INS removed me on a single immigration violation charge under Sec. 241(a)(9) of the Act [now Sec. 241(a)(1)(C)(i)], for failure to maintain conditions of nonimmigrant status (for not attending college during period of incarceration). Please note that the INS did no or could not independently charge me for the bank fraud conviction. 3) October 5, 1993, single conviction of unlawful entry in violation of sec. 276 0f the Act, 18 U.S.C. 1326. I received, and served, a sentence of 11 months imprisonment and one year supervision. 4) On October 1997, bsed on BIA decision, the INS again removed me on a single charge under sec. 241(a)(1)(A) of he Act, for being excludable at entry under sec. 212(a)(6)(B) of the Act - No permission to apply or reapply after deportation or removal.

I am now eligible to apply for Immigrant Visa from Consular Post as the spouse of a U.S. Citizen. My wife and I had been married since May 1988 with a 13-year-old son from this relationship. The Consular officer says that my past convictions as stated do warrant an approved waiver of ground of inadmissibility pursuant to sec. 212(h) of the Act. I think she's wrong. I argued that 1) the INS did not or could not independently charge me for the bank fraud conviction because I should benefit from the Sentencing Clause - INA 212(a)(2)(A)(i)(1) I cited in part that: Clause (i)(1) shall not apply to an alien who committed only one crime if (II) the maximum penalty possible for the crime of which the alien was convicted did not exeed imprisonment of for one year... (1996). 2) that the rentry conviction is not a moral turpitude offence. The Consular officer insisted that the phrase "maximum penalty possible" makes me ineligible for the exception clause. I think the officer misread or misinterpreted the statute.

Mr. Boyle, I need your help on this issue as I know other users of your web page may benefit from your opinion.

Thanks. K. O.

-- Kola Olans (, February 10, 2004


I think the Consul is right that you need a waiver. The petty offense exception applies if the MAXIMUM POSSIBLE sentence is one year or less and YOUR sentence was under a year. Your sentence was over six months.

Am I understanding your question correctly?

-- Michael Boyle (, February 29, 2004.

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