Will my deported husband get a visa?
Q: Dear Mrs Macaulay,
I reside in the USA and I’m a US citizen. I got married last year to a Jamaican citizen in Jamaica. My husband was deported from England in 2009 after serving a prison sentence of 18 months for dealing in cocaine and overstaying his visit. I want to know if when I’m ready to file for him to join me in the USA, whether this will affect him getting the visa. Should he try to get this expunged since it’s been six years since the offence? This was his first offence ever and he just got caught up in providing for his family back home.
A: You point out that the offence was your husband’s first, and state that he engaged in such enterprise in order to make provision for his family. I must point out that such a reason is not exculpatory at all.
Without further ado, let me answer your first question about whether his record would affect the grant of a visa to him to enter and/or to remain in the USA. I am afraid that the answer to this question is a resounding yes. Dealing in drugs, and one such as cocaine, is not going to be overlooked and minimised. Remember, the fact of having any criminal conviction has a bearing on whether or not an applicant for a visa ought to be granted one to enter any country. The more serious the offence, the less chance there is for an application to be successful.
Your husband’s conviction was not for “possession” simpliciter but for “dealing”. This is a far more serious offence and we all know the attitude of the USA to drugs and to those who are dealers in the drug trade.
So be assured that his conviction will definitely bar his entry into the US and indeed any other country, and it would generally prevent him from being granted a visa to enter and remain in the USA, unless he can convince them to act otherwise.
You must also bear in mind the adverse effect that his ‘overstaying’ as you termed it, in England, would have on the assessment of his character, plus the fact of his deportation.
He therefore has two strikes against him for any application for him for a US visa. The fact that it was his first and only drug offence could be used to soften any attempt to paint him as a hardened criminal. The reason you gave of his having been just “caught up in providing for his family back home” would not assist in my view. It would raise the question of how he would act in he future if he or you his wife and family were to suffer financial reverses in the future. There are many people, in fact the majority of people, whose families have been or are in financial difficulties, who do not get involved in the drug trade. Your husband, however, consciously chose that path and did so. He also remained in England illegally after his visa expired.
In my opinion, you have no choice but to seek to have his record expunged. I cannot assure you that this would ensure a successful application for his visa though.
The answer to the question of whether he has ever been convicted of a criminal offence must be in the affirmative and then the type of offence must be disclosed. If the record of conviction was expunged by the subject country this may have a positive influence on the consideration of his application. Again, I cannot assure you that this would in fact be the case.
Your husband, or you on his behalf, should retain the services of a solicitor with a criminal law practice in England and get their advice on whether your husband can, firstly, at this time, six years after his conviction, apply for his record as a dealer of cocaine and remaining in the country illegally without a visa be expunged. Secondly, you would ask what in the solicitor’s opinion would be his chances of success. Such a course of action would guide you more effectively than anything which I say about it. You need the services of a current practitioner of English law in England who can act on your husband’s behalf there. You can check the Law Society website for information about solicitors there.
You ought to do this before you even consider taking any step in the US towards filing for your husband. You need to know whether there is any chance of success before you expend any monies or time preparing your application, as it may be that you have to wait for more years to pass before an application to have his record expunged can legally be undertaken.
I wish you the best of luck.
Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver. com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5.
DISCLAIMER:
The contents of this article are for informational purposes only and must not be relied upon as an alternative to legal advice from your own attorney.
