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I am a German who was refused an 2013 a tourist visa to the USA at the Frankfurt Consulate. It was denialed because of Immigration and Nationality Act 212 (a)(2) (A)(i)(I) and 214(b). The offense happened in June 2004 and consisted of an exchange of caresses with a former patient of the Psychiatric Clinic I used to work at. The General Attorney punished me with an order of summary punishment (German: Strafbefehl) of ten months that was suspended and placed to a three years probation. The Immigration Officer at the Consulate considered this offense as being one of moral turpitude, and at the same time assumed that I wanted to settle in the USA, perhaps because in 1964-65 I had a green card. Since then I live in Germany, have here a solid situation and have no intention of returning to the USA. Menwhile my brother who has become a US-citizen is 85 years old and I would like to visit him for the last time in life. My question: how good are my chances of getting a visa if my wrong behavior happened 15 years ago. My police record in Germany shows no offenses any more. Many thanks for an answer Kurt

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    To help us understand "Strafbefehl," can you say what would have happened if it had not been suspended? Would you have been imprisoned? Was the maximum possible Strafbefehl longer than one year? I ask because of the statute's provisions concerning crimes of moral turpitude include an exception that does not apply if the Strafbefehl is a "term of imprisonment," because it was longer than six months (the fact that the sentence was suspended is explicitly disregarded by the statute). – phoog Dec 27 '19 at 14:45
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    @phoog In German law, a Strafbefehl (literally "penal order") is the result or verdict of a simplified trial, which can be used for less serious offences. The legal consequences are in Germany the same as if a proper verdict had been passed follwing a full trial. A Strafbefehl is limited to a one year suspended imprisonment. If the state attorney wanted an unsuspended sentence, they would have had to initiate a full trial. In this case, OP would have been imprisoned if he violated the suspension conditions, likely not being sentenced again within the mentioned three years. – Tor-Einar Jarnbjo Dec 28 '19 at 1:59
  • @phoog, you can think of a Strafbefehl as a "take it as written or go to trial" plea bargain offer. The court offers summary judgement on the case unless the defendant wants to present evidence, which could then result in a dismissal of the case, or a lower or higher sentence. – o.m. Dec 28 '19 at 7:29
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If you are denied again on immigrant intent (INA 214(b)), there is no waiver for that. For the ban for the crime, it is possible to seek a nonimmigrant waiver under INA 212(d)(3)(A), but only if 1) you are not also denied for immigrant intent, and 2) the visa officer recommends the waiver.

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In answer to @phoog question about the classification of Strafbefehl

  • is only allowed for a Vergehen (§ 12 Absatz 2 StGB)

In the German Criminal Code there is no general classification for something where the maximum punishment is more than 1 year

  • only if it less than 1 year or by a fine

The learn the maximum possible sentance (over 6 or 12 months), one would have to know the exact paragraph and look it up in the Criminal Code.

§174c StGB would be from three months to five years

  • in this case 10 months

The exception defined in the Immigration and Nationality Act 212 (a)(2)(A)(ii) will not apply of an actual sentencing (including a suspended sentence) of

  • over six months

There is no meantion of an expiration of a sentence

  • such as 5 years

which is the case for a general Führungszeugnis in Germany.


Section 12
Felonies and misdemeanours

(1) Felonies [Verbrechen] are unlawful acts punishable by a minimum sentence of one year’s imprisonment.

(2) Misdemeanours [Vergehen] are unlawful acts punishable by a lesser minimum term of imprisonment or by fine.

(3) Aggravations or mitigations provided for under the provisions of the General Part, or under especially serious or less serious cases in the Special Part, shall be irrelevant to this classification.


Durch Strafbefehl können nur Vergehen im Sinne des § 12 Absatz 2 StGB geahndet werden.

Penal orders can only result in offenses within the meaning of Section 12 (2) of the Criminal Code.


Immigration and Nationality Act

212 (a)(2) Criminal and related grounds
(A) Conviction of certain crimes
(i) In general
Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or

(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21),

is inadmissible.

(ii) Exception
Clause (i)(I) shall not apply to an alien who committed only one crime if-

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

...
(d) Temporary admission of nonimmigrants
(3)(A) Except as provided in this subsection, an alien (i) who is applying for a nonimmigrant visa and is known or believed by the consular officer to be ineligible for such visa under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i) and (ii) of paragraph (3)(E) of such subsection), may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite his inadmissibility, be granted such a visa and may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General, or (ii) who is inadmissible under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i) and (ii) of paragraph (3)(E) of such subsection), but who is in possession of appropriate documents or is granted a waiver thereof and is seeking admission, may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General. The Attorney General shall prescribe conditions, including exaction of such bonds as may be necessary, to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.


214(b).
Presumption of status; written waiver
Every alien (other than a nonimmigrant described in subparagraph (L) or (V) of section 1101(a)(15) of this title, and other than a nonimmigrant described in any provision of section 1101(a)(15)(H)(i) of this title except subclause (b1) of such section) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 1101(a)(15) of this title. An alien who is an officer or employee of any foreign government or of any international organization entitled to enjoy privileges, exemptions, and immunities under the International Organizations Immunities Act [22 U.S.C. 288 et seq.], or an alien who is the attendant, servant, employee, or member of the immediate family of any such alien shall not be entitled to apply for or receive an immigrant visa, or to enter the United States as an immigrant unless he executes a written waiver in the same form and substance as is prescribed by section 1257(b) of this title.


Sources:

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    This doesn't answer K. C. Ludewig's question, however. – phoog Dec 28 '19 at 18:55
  • The penal order resulted because of §174c StGB. I accepted it in order to avoid the publicity of a trail because that would have harmed my family. My lawyer disagreed since he was quite certain that the lenght of the sentence did not correspond to the fault. The reason why the visa officer assumed that I wanted to immigrate to the USA remained obscure since there is no way to clear that out. I am thinking about asking again for a tourist visa but wouldn't like to travel to Frankfurt and pay the Consulate fees and be refused again. Ths is why I ask here. Thanks anyhow for all your comments. – K. C. Ludewig Jan 2 '20 at 18:06

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