HOW TO APPLY FOR THE CRIMINAL RECORD TO RESIDE IN THE US?

I am going to sponsor my wife and my children to enter the US and they have to apply for the criminal record number 2. At the same time, my wife has to submit the criminal record of the country where she has lived for more than 1 year.  My wife has resided in Cannada for over 1 year and committed a crime there.  My questions are:

- Is there information about my wife’s crime in Canada in her criminal record number 2?

- Can we gloss over my wife’s residence in Cannada? Will the authorities know about it?

We hope to be advised.  Sincerely thank!

FDVN’s opinion:

Sincerely thank you for concerning our legal consulting service. We are glad to give you our advice on your issue.

[1] The application for the US residence request - (According to the Embassy and Consulate General of the US in Vietnam)

- Photo used for visa application;

- Identity card: original and photocopy;

- Passport: Original and photocopy.  Passport must be valid for at least 60 days from the date of visa expiration.  Each applicant must submit two copies of their own passport information page, including children traveling with their parents.  Passports are generally valid for ten years (except for passports of children under 14 years of age valid for five years);

- Household registration: original and photocopy;

- Birth certificate: The original and a photocopy of the birth certificate of the sponsor and each of the applicants named in the application, and of all the children of the primary applicant (even if they are not accompanied);

- Certificate of marital status (not required in case of not being married): Marriage certificate if the applicant is married (original and photocopy);

- Original Justice Record No. 2: Judicial record No. 2 issued within one year by the Department of Justice of the province/city where the applicant resides or where the applicant is legally residing under the Household Registration, which is requested to the applicant over 16 years old.

Note: In principle, prison records and court records can be obtained from the city or provincial court where the applicant is detained and be taken from the Director of the prison.

- Original foreign criminal record (if any):

A copy of the original criminal record issued by all countries where the applicant has resided for at least one year from the age of 16;

- Criminal record (if any): Original and photocopy.  Applicants who have been convicted must submit a notarized copy of each criminal conviction and any prison sentence, whether after that the applicant is granted amnesty or any other form of mercy, the criminal records should include sufficient information about the facts of the applicant's crimes and court rulings, including judgments, penalties or other penalties that the convicted person is required to execute;

- Military record (if any): Photocopy.  Applicants who have served in the military in any country must submit 1 copy of their military records;

- Health examination results;

- Financial sponsorship record;

- Proof of relationship: Applicant needs to prepare all evidence to prove the applicant's relationship with the guarantor and accompanying family members (if any);

* Spousal sponsorship: Please name, specify each item in chronological order and divide it into two groups: before and after marriage.  Evidence may include, but is not limited to, photos, letters, telephone bills, and other relevant evidence to prove about the applicant's real relationship with the guarantor. Please note that the applicant must remove the photos from the album and bring only loose images.

[2] Judicial record No. 2 according to Vietnamese laws:

a. Person to be granted judicial record card No. 2:

According to Point b, Clause 1, Article 41 of Law on Judicial Record 2009: "Judicial record card No. 2, which shall be issued to procedure-conducting agencies specified in Clause 2, Article 7 of this Law and at the request of individuals who want to know their judicial records.”

b.  Contents of Judicial Records No. 2:

According to Article 43 of the Law on Judicial Records 2009, Clause 2 of Article 14 of Circular 13/2011/TT-BTP and Clause 11 of Article 1 of Circular 16/2013/TT-BTP, does the criminal record certificate No. 2 have  the following content:

"1. Full name, gender, date of birth, place of birth, nationality, residence, ID card or passport number, full name of father, mother, wife issuing judicial record cards.

2. Status of criminal records:

a) For a person not convicted, write "No criminal record";  For foreigners who have resided in Vietnam, write "No previous criminal records during their stay in Vietnam".  The cells and columns in this section are not recorded in Judicial Records.

b) For a person who has been convicted, only record the criminal record in the corresponding boxes and sections of the criminal record sheet and record all the criminal convictions that have been deleted, the time of criminal record remission or not yet recorded.  erase.

If a criminal record does not contain the items in the Additional Penalties, Civil Obligations, or Court cases, he/she will ""

If a convicted person has multiple convictions, his / her criminal information is recorded in chronological order.

If the convicted person is tried according to the appellate procedure, that criminal record will be updated in the Criminal Record No. 2, specifically as follows:

The content updated in the "Judgment No. ... date ... month ... year ... of the Court ..." is updated according to the information of the appellate criminal judgment.

If the appellate criminal judgment does not accept appeals and protests and uphold the first-instance criminal sentence, the content of the first-instance criminal sentence shall be updated in the judicial record card, and updated in the section the note is "upheld the first instance judgment ... date ... month ... year of the Court ...".

In cases where the appellate criminal judgments adjust the contents of the offenses, the provisions of the Criminal Code are applied, the main penalties, additional penalties, civil obligations, and court costs of the first-instance criminal judgments, the content modified by the appellate judgment in the Judicial record card must be updated, and the note that "correcting the first instance judgment ... date ... month ... year of the Court ..." must be updated, too.

c. The content of "judgment execution status" is written according to the content updated in the person's criminal record at the time of requesting the issuance of a judicial record card.

For example: At the time of requesting the issuance of a judicial record card, Nguyen Van A's criminal record is updated to the section "Decision to postpone serving imprisonment sentences", the judicial record card number 2 of Nguyen Van  A, at the section "Status of judgment execution" must include the information of postponement of serving imprisonment sentences under Decision No ..., dated… by the People's Court of …

In case the convicted person has been deleted, the "Status of judgment execution" section must be clearly stated, "Completed the sentence".

d) How to write "Deleting the criminal records": “The criminal record has been deleted on…” for criminal records that have been deleted."No criminal records have been deleted" for criminal records that have not been deleted.

[3].  About Judicial Records from abroad

Judicial records abroad must be included in the file for cases of having resided in other countries for at least 1 year since the age of 16.  In this case, your wife has resided in Canada for more than 1 year, so it is necessary to apply for a criminal record in Canada. Entry and exit activities between the countries are systematic, recorded, managed, and monitored, so it will not be possible to gloss over your wife’s residence in Canada. Besides, the entry is shown on entry visa in the passport or a separate visa in the following cases:

- Passport has no blank pages for visa any more but it has not been re-granted;

- Passport of the country not having diplomatic and consular relations with Vietnam;

- For security or diplomatic reasons.

Therefore, your wife could not hide her previous criminal convictions in Cannada.  The guarantee of permanent residence will depend on the nature and crime's grading You can apply for the indulgence of the US government.  It takes 6-12 months to receive the results of the indulgence USCIS (U.S. Citizenship and Immigration Services).

Above is FDVN Law Firm's opinion for your request of a consultant based on studying the relevant legal provisions. Hopefully, FDVN's advice would be helpful to you.

Legal expert: Hoang Tran Ngoc Anh

FDVN Law Firm

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