The Situation
My client had waited an entire year for the U.S. consulate in his home country to adjudicate his F-1 student visa application. He had been accepted to a U.S. university to pursue an advanced degree, his documents were in order, and his academic credentials were strong. The consulate rewarded his patience with a denial.
The ground for the denial was inadmissibility under Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act. The consulate had concluded that my client’s prior criminal conviction, for negligently causing bodily injury to another person in a road accident, constituted a Crime Involving Moral Turpitude, or CIMT. The only real question was whether a negligence conviction can be a crime of moral turpitude at all.
His university program was scheduled to begin in fewer than four months. The consulate had taken a full year to deny the visa; whatever could be done now had to be done in a fraction of that time.
The Government’s Own Manual
Before devising a strategy, I read the law. I researched the specific foreign criminal statute under which my client had been convicted and cross-referenced it against the State Department’s own Foreign Affairs Manual (FAM), which governs how consular officers must analyze CIMT determinations.
The consulate’s conclusion was not just incorrect; it was contradicted by the State Department’s own guidance. The FAM is explicit: to determine whether a conviction constitutes a CIMT, the adjudicator must look at the wording of the statute violated, not the underlying facts of the offense. The facts of the case, including the applicant’s own testimony, are irrelevant to a CIMT determination unless the statute is divisible.
A divisible statute is one with multiple sections, only some involving moral turpitude. If it is divisible, the adjudicator looks to the section of conviction; if not, the inquiry stops at the words of the statute.
The foreign statute under which my client was convicted covered only one offense: negligently causing bodily injury to another person. It did not contain multiple subsections, only some involving moral turpitude. It was a non-divisible statute. That meant the facts of the accident — the road, the passenger, the circumstances — were outside the scope of the inquiry and could not be used to support a CIMT finding.
On the substance, the case was even clearer. The most commonly recognized CIMTs involve fraud, larceny, or intent to harm. My client’s conviction required none of these. It required only negligence.
The FAM gives the example at 9 FAM 302.3-2(B)(2)(c)(3)(a)(x):
A conviction for the statutory offense of vehicular homicide or other involuntary manslaughter that only requires a showing of negligence will not involve moral turpitude even if it appears the defendant in fact acted recklessly.
My client’s conviction was for causing injury, not death, and the statute required nothing more than negligence. If vehicular homicide without intent is not a CIMT, then negligently causing bodily injury is not one either. The consulate’s finding was indefensible. The argument against it was the government’s own.
The Strategy
Being right is a good start. Getting a U.S. consulate to admit it was wrong is a different challenge. Consulates are not in the habit of reversing themselves.
I prepared a legal memorandum laying out the analysis in plain terms. My client submitted a new F-1 visa application and prepared for his consular interview, armed with the memorandum and supporting documentation.
Arguing my case to the consulate directly risked getting it mired in procedural delays that would eventually render it moot. I had to interest someone else in my client’s problem. Ideally, that person would be the Consul General’s boss. So I emailed the U.S. Ambassador, copying the Consul General, to say that a serious legal error had been made at the post and that they had both the duty and the opportunity to correct it.
I heard from the Consul General the next day. After a brief exchange, he agreed to submit an advisory opinion request to the State Department’s Visa Office in Washington, D.C., a mechanism that allows consular posts to seek legal guidance from the Department’s in-house lawyers on complex admissibility questions.
The Result
The State Department’s lawyers agreed with my analysis. The visa was issued. From the date of the new application to the issuance of the F-1 visa: five weeks. My client made it to his university program on time.