DV 2022 OC Selectees
- Thread starter Melb2021
- Start date
090521@0411
Active Member
Click to expand...
Obviously it's up to you to prepare for your interview as you see fit, my belief is always you can never over prepare.
I really don't want to comment more on your case publically, however your now saying you had to appear on court? Even if that was for a guilty plea if I were the CO I'd question why you didn't believe your DUI needed to be declared if it involved a court appearance.
Some Australian states have made DUI a ticketable offence, meaning you may be excused for not declaring it if your were ticketed and thought it was a traffic matter. A court appearance however removes that excuse.
Also, for an offence to be considered a crime that involves moral turpitude (CIMT) there needs to be an element of "evil intent" such as deliberate dishonesty.
In my opinion a simple DUI is not a CIMT. However, if for example the court record shows you were asked by police if you had been drinking and you said no, then a BAC test proved you had been drinking, that could be interpreted as deliberate dishonesty, therefore evil intent and therefore a CIMT. It's not as black and white as saying "as long as you didn't injury/kill anyone". This is where your original DS 260 may come into play.
As any competent criminal lawyer will tell you, "never talk to the police" if your pulled over for RBT say nothing, do the BAC test and if you fail you fail, it's simple DUI, but if you talk to the police, lie and say you have not been drinking, and it's proven you have, that lie can come back to bite you if it's on the court file, and if for what ever reason, such as your original DS 260, the CO puts you on AP, you will be on AP so the CO can obtain that court file.
If your in Qld and your DUI was over twelve (12) years ago, Qld magistrates court records are deleted after 12 years (not many people know that).
With my conviction, it's a customs offence, and 9FAM clearly states smuggling offences by themselves are NOT CIMT. however, if there was a false declaration to customs, then the deliberate dishonesty comes into play and the non CIMT smuggling offence becomes a CIMT. Despite having a certified copy of my sentencing transcript where the magistrate said there was no false declaration by me, that I had obtained the import permit I was told to get by customs, and that was the wrong permit, and therefore my import was unlawful, the CO placed me on a 60 AP. I too thought I would be "ok".
Also, as per 9FAM, it's not only the sentence you received that is considered, it is also the maximum sentence you "could" have received. Under US law a felony conviction is a conviction "in any court" where the court "could" have sentenced you to a term of imprisonment of more than one (1) year. Whether "any court" includes a court outside of the US I do not know.
Waivers may be available for a CIMT if the offence was committed more than fifteen (15) years ago, however as I said above, you will time out applying for a waiver, and if your interview is after July,
you could time out on a 60 day AP.
Fun fact, the magistrate who sentenced me for my customs offence, and had a history of throwing the book at and recording convictions against DUI offenders was himself charged with a DUI offence, ofcourse though when he plead guilty he received "no conviction recorded".
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2022OC5XX
1NL received 9 May 2021
DS 260 submitted 2 November 2021
No documents requested or submitted
Ready to be scheduled for interview 24 December 2021
Current as of 1 January 2022
2NL received 19 April 2022
Britsimon
Super Moderator
"In my opinion a simple DUI is not a CIMT. However, if for example the court record shows you were asked by police if you had been drinking and you said no, then a BAC test proved you had been drinking, that could be interpreted as deliberate dishonesty, therefore evil intent and therefore a CIMT. It's not as black and white as saying "as long as you didn't injury/kill anyone". This is where your original DS 260 may come into play."
This is nonsense. Please stop.
090521@0411
Active Member
How is it nonsense ?
Britsimon
Super Moderator
Because lying during a DUI is not an aggravating factor. Yes it can destroy your credibility, but in itself it does not increase the seriousness of the offense. Aggravating factors are additional crimes committed while DUI (such as causing death, driving without a license and so on). Lying to the police is not a crime. It's an American tradition. It seems you are trying to make a mountain out of the molehill.
SusieQQQ
Well-Known Member
..
…evidence relating to the underlying act, including the testimony of the applicant, is not relevant to a determination of whether the conviction involved moral turpitude…
specifically addressed in the FAM too https://fam.state.gov/fam/09FAM/09FAM030203.html#M302_3_2_B_2
…evidence relating to the underlying act, including the testimony of the applicant, is not relevant to a determination of whether the conviction involved moral turpitude…
090521@0411
Active Member
Well Simon, respectively I disagree with you, and invite you to read the 9FAM notes relating to criminal matters.
9FAM actually gives the specific example of smuggling offences. Smuggling by itself (absent of people or controlled substance smuggling) is not a CIMT, but add a deliberate false declaration then it can be a CIMT. 9FAM it totally silent on whether the false declaration is recorded as a seperate offence or apart of any court record to the smuggling offence.
With that example, how is making a false statement during a DUI investigation any different?
It may be an "American tradition" to lie to the police, but as I understand it, the OP's DUI offence was in Australia, not America. In Australia if you lie to police the police will purposely include that in any court brief, even if you are pleading guilty, to embellish the seriousness of their allegations against you.
In any event I never said my opinion was correct, I said it was my opinion and I used it as an example, not as a fact of the OP's circumstances. In Australia a DUI offence is usually finalised road side, with the offender ticketed or given a court attendance notice, and their car locked up, keys confiscated and the offender walks/gets a taxi home. From what I have seen from cop watch/1st amendment videos in the US, particularly in CA, DUI offenders are arrested on the spot, handcuffed and taken to jail, indicating, to me, DUI is taken extremely seriously in the US, and in my opinion, rightfully so. I wouldn't want to be a DUI offender being interviewed by a CO and that CO had a friend or family member injured or killed through DUI.
The real issue here is, in my opinion, as you have indicated, credibility issues of the OP given their admission of omission from their original DS 260 of their DUI offence, and you must agree if that results in AP, particularly a 60 day AP, that could be a serious problem when the OP hasn't been interviewed yet, and OC quotas of DVs are exhausted before 30 September.
Too late for DV 2022 selectees, but perhaps a helpful tip for DV 2023 and beyond selectees reading this post, don't submit your DS 260 until you receive your police certificate.
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2022OC5XX
1NL received 9 May 2021
DS 260 submitted 2 November 2021
No documents requested or submitted
Ready to be scheduled for interview 24 December 2021
Current as of 1 January 2022
2NL received 19 April 2022
Britsimon
Super Moderator
More molehills and mountains.
You keep taking a word here and a word there to make some sort of point. It's exhausting and I don't have the time nor energy to play whack-a-mole with you.
Simple DUI is not a CIMT. That is tested law and is also made clear in the FAM. Aggravating factors do not include lying during the traffic stop. They just don't. Even the cops are legally allowed to lie during traffic stops and your point about Australian cases is really about credibility. The lie would not be charged as a crime in the USA or Australia.
Then you took my credibility point and twisted that to make another mountain out of a molehill. The fact that someone corrects their DS260 does not make it more likely to get AP. So why the heck you jumped to that, I don't know.
In general you are trying, for some reason, to make this seem more serious than it is. You do that often. Really, I wish you would stop with that behavior.
And it is "respectfully disagree".
@090521@0411 whilst I appreciate your input, i think you could be overcomplicating this. I know your intentions are good and just want me to be prepared. Like I said I think it should be fine, though if I happen to get refused on this, in the famous words of Ned Kelly "Such is life" (Don't worry I won't be saying any Ned Kelly quotes during the interview). When I got pulled over that night I got done for the DUI, i didn't lie about the amount of drinks I had, everything went smooth and the police report verifies this.
I believe what you're saying where the CO might have doubts is because I didn't put this in the first time i submitted the DS 260, and only added this in when I resubmitted the DS 260 after getting the AFP check back. and what i'll be telling the CO if they question me on that is that I honestly didn't think the charge would come up since it was low range DUI over 10 years ago and received no fine/conviction/loss of points. I think they hopefully should be ok with that and the fact that I mentioned the offence in my resubmission should hopefully show them i wasn't trying to pull anything dodgy. I spose if I did get a CO that wanted to refuse on the basis that i didn't initially disclose this, it'd be disappointing but its something i'd be prepared to deal with as it would be my fault, though I honestly think it should be fine.
I believe what you're saying where the CO might have doubts is because I didn't put this in the first time i submitted the DS 260, and only added this in when I resubmitted the DS 260 after getting the AFP check back. and what i'll be telling the CO if they question me on that is that I honestly didn't think the charge would come up since it was low range DUI over 10 years ago and received no fine/conviction/loss of points. I think they hopefully should be ok with that and the fact that I mentioned the offence in my resubmission should hopefully show them i wasn't trying to pull anything dodgy. I spose if I did get a CO that wanted to refuse on the basis that i didn't initially disclose this, it'd be disappointing but its something i'd be prepared to deal with as it would be my fault, though I honestly think it should be fine.
good to hear, thanks for letting us know.
090521@0411
Active Member
Shezza,
You have pretty much hit the nail on the head, and based on what you have said now, in my opinion your DUI is not a CIMT or any other offence making you inadmissible into the US.
If I had a DUI offence and didn't disclose it on my original DS 260 and was questioned about this by the CO, my response would be the DS 260 is somewhat confusing to someone who does not have a legal background.
I have attached a screen shot of the relevant part of the DS 260, and whilst it asks if you have been arrested or convicted for ANY offence, it is under the sud heading of CRIMINAL Information.
Is DUI a criminal offences? I don't believe so in my state, I would say it's a traffic offence. Was I arrested? Well if the police did not say I was under arrest I would say I was not arrested. Was I convicted? Well if no conviction was recorded then I would say no. Of course if a subsequent AFP police certificate listed my DUI offence I would recognise that whilst I am not a lawyer, I had erred on the DS 260, and the correct course of action was to immediately correct my error by unlocking my DS 260 and list the DUI offence.
I would still urge you when you have a spare hour to read the 9FAM notes on criminal matters, there is a specific section relating to DUI, and how even if not a CIMT, how the CO can refer you for more medical reviews if they believe you are an alcoholic, which may explain why Epworth (at least with me) were asking about criminal histories and any alcohol or drug usage.
What you need to avoid is any AP because if your interview is July/August and you go into a 60 day AP, you could clear AP only to find all visas for OC have been exhausted, which I believe is likely by August/September.
That's the fear I have with my case now, I doubt the visa number assigned to me at my interview stays with me through a 60 day AP, and my case went from the CO saying my AP may end that afternoon, to Suva saying the next day my AP may be up to 60 days, or significantly longer.
Good luck
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2022OC5XX
1NL received 9 May 2021
DS 260 submitted 2 November 2021
No documents requested or submitted
Ready to be scheduled for interview 24 December 2021
Current as of 1 January 2022
2NL received 19 April 2022
Attachments
Haven't done my DV interview yet but I used Aus Post for my entry photos + my last J1 visa at the US embassy in Sydney 3 years ago. There are different formats so just make sure you asked for US passport style photo when asking for them at Aus Post.
Thanks for explaining further, yeh the case was dismissed under a Section 10, which I believe is for minor or first offences, so i'll just be letting them know that too if questioned. What does AP mean, i've seen that term as well as a few other abbreviations? I think it should be ok, i think there's a few of us on here that have had minor things on their record and have still gotten the visa, but I spose it could depend on what the CO thinks.
SusieQQQ
Well-Known Member
I can’t see what you’re responding to but it’s not really “what the CO thinks”. The FAM - the manual the field offices use - gives clear guidelines as to what counts as a CIMT, and if it’s too complex for the CO to make a determination (which it doesn’t sound like your case is at all) they get an advisory opinion from Washington about the visa.
almost forgot about the passport photos you need to bring. thanks for reminding
thanks for clarifying @SusieQQQ I wasn't sure in certain cases if it could be up to the discretion of the CO, but sounds like I should be sweet.
090521@0411
Active Member
AP = Administrative Processing
AP is basically when the CO can't decide on the spot if your eligible for your DV, but further investigations/research will determine if you are eligible for a DV. The time it takes for that research/investigations is basically AP.
Yes exactly have anything relating to the DUI offence with you, including certified copies if you can get them, but don't use it unless asked. I got a leather A4 folder from OfficeWorks for $10 which I had all documents I thought I may need in, out of sight from anyone, yet easy and quick access for a document if needed.
Im sure there was another member in this thread who interviewed at Suva who had an old DUI conviction, and was asked to explain by the CO and their DV was issued on the spot.
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2022OC5XX
1NL received 9 May 2021
DS 260 submitted 2 November 2021
No documents requested or submitted
Ready to be scheduled for interview 24 December 2021
Current as of 1 January 2022
2NL received 19 April 2022
Thanks for explaining what AP meant. Also when I requested the court documents from NSW courts they said they don't ever give out the originals and told me that i'll have to be happy with the electronic copy they provided me via email. I have the email from NSW courts to say they don't give out originals so hopefully that will suffice. @AusOC did you get questioned about your court documents?