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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 94320
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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HI, I was issued a city of Madison WI municipal violation

Resolved Question:

HI,
I was issued a city of Madison WI municipal violation citation for Retail theft last year with a fine of $429, which I paid. Citation says its a code violation 23.54
Now I need to visit India for my H1B visa stamping. there is a question on DS 160 that says " Have you ever been arrested or convicted for any offense or crime, even though subject of a pardon, amnesty, or other similar action". What should i say? should I say "No" because I was only cited, never taken to police station or jail or finger printed. And a municipal citation is just administrative in nature it is not a criminal offense but civil.
Kamal
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Wilton A. Person replied 1 year ago.
Thank you for your question. An immigration conviction is very broad and any type of crime of deceit such as a retail theft would be considered a crime involving moral turpitude so this question should be answered "yes" to be on the safe side.

The characterization of the offense as administrative or a municipal citation or the fact that you would not jailed or fingerprinted would not allow this question this question to be answered "no" although your argument is logical outside of the context of immigration law which has its own set of rules.

If you wish, you can answer "yes" and attach your explanation as well as any statements that you believe are relevant.

Prior to visiting India, it would probably be a good idea to consult with an immigration attorney to provide you a comprehensive review of your case because one immigration conviction involving moral turpitude can be a basis that you will not be allowed to enter the United States.

Simply put, if you are required to leave the United States, it would be a very good idea to consult with immigration attorney as soon as possible and prior to leaving the United States.

Customer: replied 1 year ago.

HI Attorney,


I understand that retail theft is a crime and it can account for CIMT under immigration laws. But in the state of Wisconsin, retail theft can be criminal or a civil offense. I got a non-criminal civil citation for retail theft with no mandatory municipal court appearance. The statute under which i am charged has a maximum forfeiture of unto $500. If one does a repeat offense of the same nature then he/she is tried under state criminal law. So this matter at hand is not a criminal offense. A person can be deported or becomes inadmissible if found guilty of CIMT and the law further states that one can be eligible for petty offense exemption if it is the only offense and the maximum punishment under state law is less than a year and he or she should not have convicted to 6months or more in jail term. Again in my case the statute says the maximum penalty is only fine. So how come it can be treated as a crime?


Please respond.


Thanks

Expert:  Wilton A. Person replied 1 year ago.
Your initial question that you asked was an inquiry about how to answer a specific question that does not provide any language with respect to answering "no" if the petty exception is applicable or any other circumstances so my initial answer would be the same but you can certainly attach an explanation to whatever you decide to answer,

The safer answer is "yes" so that you can reduce the chance of a claim of misrepresentation but consulting with an immigration attorney in your local area would probably be a good idea.
Customer: replied 1 year ago.

I was trying to ask if I say "yes" in the column what impact it would be having on H1B visa stamping given that it is just a civil citation no-more-no-less-than-a-speeding-ticket and what all documents do you recommend that I should carry with me? I also did research and found out that immigration officials cannot make a criminal case out of a civil municipal ordinance violation. What is your take on this? I agree, had it been a criminal citation it would definitely be impacting a non-immigrant alien. Looking forward to your answer.

Expert:  Wilton A. Person replied 1 year ago.
As mentioned, one crime involving moral turpitude could result in a finding that you are in admissible to the United States so your H-1B visa could be denied. To that extent, it would probably be a good idea to have an immigration attorney assist you with the visa application in order to explain the circumstances and why the petty crime exception should be applicable. It is a very common misconception to equate criminal law convictions with what are deemed immigration law conviction so you may simply need to actually invest and hire an immigration attorney to assist you if you are serious about returning to the United States without issue.As a reminder, I am prohibited from providing legal advice so the information is general and it is my recommendation that you consult with an attorney who is representing you before deciding a course of action.
Customer: replied 1 year ago.
You still not answered my query. How can immigration law make a civil offense into a criminal offense of CIMT. Can you open this question to any other lawyers you think can answer this with respect to Wisconsin state law?
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Hello. Were you arrested? Were you fingerprinted?
Customer: replied 1 year ago.
Detained, no handcuffs, not taken to police station or jail, never fingerprinted. I checked online at CIB wisconsin and found no criminal record in my name.
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

The problem is that the records that the government can access are more extensive than what a private person can access.

 

INA § 101(a)(48), the definition of a conviction. It states that:

 

(A) The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where-


(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and


(ii) the Judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.


(B) Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.

 

Because it is such a minor issue that wouldn't normally result in a finding of inadmissibility, the safer thing to do would be to say "yes" in response to that question and provide certified copies of any report and court disposition.

 

The thing is that while this is a minor issue a may not even be, as you say, a crime, there is a very good chance that it will not have any affect on your process. BUT if you say "no" and it does pop up in their records, then having "lied" about it (that's how they will see it) could end up in a denial. So it may be better to disclose and handle it like that.

 

Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. If you do rate me positively, a bonus is always appreciated. If you would like to request me in the future, just go to http://www.justanswer.com/law/expert-guillermosenmartin/. Thank you!

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Hello. I'm just following up with you to see how everything is going. Did my answer help? Please let me know. Thank you!
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

Hello. I see that you have viewed my responses. Are you having technical difficulties that you cannot respond? Is there something more that I can answer for you?

Customer: replied 1 year ago.

Dear attorney,


What all documents do I need to carry with me?


What a visa officer or an officer at port of entry can ask?


Do I need to show at all that my case falls in petty offense exemption? Although I donot think so considering non-criminal nature of charge.


If ever I have to prove to them that it falls under petty offense exemption (worst case scenario) then what all documents do I need to produce?


Reviewing all the case, can the visa stamping immigration officials deny me entry based on this offense?


Please can you clarify these queries for me, I will gladly rate your answer.


Thanks!


 


 


 

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
You should carry with your CERTIFIED copies of both the police report and the court disposition. They will figure out that it is in the petty offense exception. With those copies they most likely will not ask you anything. And no, they should not deny you because of that minor offense. They could use discretion to deny you, but that would be very rare. Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. And don't forget that bonuses are always appreciated! Thank you.

 

Customer: replied 1 year ago.

Thanks! I do have a certified docket of court disposition but obtaining a certified police record is taking 8 weeks and I am planning to leave well before (i have applied though). I just obtained uncertified copy of all contacts with Madison Police and the incidence shows up in there, will this do? I have certified copies from sheriff's Dept. (that shows no contact with them) and criminal background from CIB WI Dept. of Justice (shows no record in my name).

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Sir, you still have not rated me positively. Until you do, I do not get paid. I do not get paid a salary. I will not abandon you after you rate me positively and I will continue to respond to your questions without additional charge. So please consider rating me positively now. The best evidence to cause you the least amount of problems is the certified police report. If you do not have it, it will just maybe take longer for them to verify things. Try to get it as quickly as you can, but if what you have is all you have, then that's it. Use it.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 94320
Experience: 10+ years of experience in various aspects of U.S. Immigration Law.
Guillermo J. Senmartin, Esq. and 2 other Immigration Law Specialists are ready to help you

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