Minor Juveniles
9 FAM 302.3-2(B)(7) (U) The Minor Exception
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(CT:VISA-1797; 07-12-2023)
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a. (U) Provisions of INA 212(a)(2)(A)(ii)(I): A conviction or admission of a crime involving moral turpitude will not serve as the basis of ineligibility under INA 212(a)(2)(A)(i)(I), if the following conditions have been met:
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(1) (U) The crime was committed when the applicant was under 18 years of age; and
(2) (U) The crime was committed (and the applicant released from any confinement to a prison or correctional institution imposed for the crime) more than five years before the date of application for a visa or other documentation and the date of application for admission to the United States.
b. (U) More Than One Crime: If an applicant has been convicted of more than one crime involving moral turpitude, the minor exception does not apply. Additionally, in some instances the court records might show that an applicant was convicted guilty of conduct constituting more than one crime involving moral turpitude, although only one conviction resulted and the conviction itself encompasses multiple crimes (e.g., a conspiracy involving multiple robberies resulting in a single conviction for “conspiracy”). In such a case, the applicant is ineligible for the minor exception and remains ineligible under INA 212(a)(2)(A)(i)(I), but only if it is clear that the conviction itself encompasses multiple crimes where the elements of each crime were met. By contrast, some court records may reflect that the applicant was charged with multiple individual CIMTs, but convicted of only one, in which case the minor exception would still apply. If you have an applicant who might be eligible for the minor exception but for the fact that it appears that the conviction itself encompasses multiple crimes involving moral turpitude, contact the L/CA portfolio holder for your post.
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c. (U) Conviction When Applicant Was Over 18: It does not matter if the conviction occurred when the applicant was over the age of 18 if the relevant crime was committed when the applicant was under the age of 18. d. (U) Confirm Existence of a Conviction: Before applying the minor exception for a crime involving moral turpitude, you should first consider whether the offense was not a crime, but in fact a "juvenile delinquency." See 9 FAM 302.3-2(B)(8) below.
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9 FAM 302.3-2(B)(8) (U) Juvenile Delinquency
(CT:VISA-1797; 07-12-2023)
a. (U) Definition: The Federal Juvenile Delinquency Act (FJDA) defines a juvenile as a “person who has not attained his 18th birthday” and defines juvenile delinquency as “the violation of a law of the United States committed by a person before their 18th birthday which might have been considered a crime if committed by an adult.”
b. (U) While the FJDA may sound like the minor exception explained at 9 FAM 302.3-2(B)(7) above it provides a distinct legal criterion that you must consider in determining whether a conviction of a crime exists for immigration purposes. In short, the FJDA requires that certain offenses committed by minors will be treated as a "juvenile delinquency" rather than a crime. As such, someone convicted for an offense of juvenile delinquency has not been convicted of a crime involving moral turpitude.
c. (U) Using U.S. Standards: A foreign conviction based on conduct which would constitute a juvenile delinquency under U.S. law, however it was treated by the foreign court, is not a conviction for a “crime” under INA 212(a)(2)(A)(i) and, accordingly, may not serve as the basis for a finding of ineligibility under INA 212(a)(2)(A)(i)(I).
d. (U) Controlling Legislation: The standards embodied in the Federal Juvenile Delinquency Act (FJDA), as amended, govern whether an offense is a juvenile delinquency or a crime by U.S. standards. The FJDA, set forth in 18 U.S.C. 5031, was amended by the Juvenile Justice and Delinquency Prevention Act of 1974 (Public Law 93-415) and the Comprehensive Crime Control Act of 1984 (Public Law 98-473).
e. (U) Two Classes of Juvenile Delinquents: The Federal Juvenile Delinquency Act (FJDA) differentiates between two classes of juvenile delinquents. Therefore, each must be analyzed differently under INA 212(a)(2)(A)(i)(I).
(1) (U) Under Age 15: Juveniles who were under the age of 15 at the time of commission of acts constituting a juvenile delinquency, have not been convicted of a crime. Therefore, no applicant may be found ineligible under INA 212(a)(2)(A)(i)(I) for any juvenile delinquency committed before the applicant’s 15th birthday.
(2) (U) Between Ages 15 and 18:crime for purposes of INA 212(a)(2)(A)(i)(I) unless they were tried and convicted as an adult for a felony involving violence. A felony is defined in 18 U.S.C. 3559(a) or 18 U.S.C. 3156(a) as an offense punishable by death or imprisonment for a term exceeding one year. A crime of violence, as defined in 18 U.S.C. 16, is an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another. If you believe that an offense perpetrated by a juvenile does not constitute a juvenile delinquency, you should submit an AO to L/CA. f. (U) Juveniles Demonstrating Patterns of Criminal Behavior: Any case in which an applicant’s misconduct as a juvenile over time has demonstrated a pattern of criminal behavior must be referred to the panel physician for a possible finding of ineligibility under INA 212(a)(1).