Criminal record abroad and Naturalization Application

R

realexm

Registered Users (C)
Hello:

I am currently filling out the naturalization paperwork and I have some questions. Some background information: I have been convicted in my home country (Europe) in 1994 of 'co-principal in defalcation'. The sentence was a fine of app $900, of which $400 unconditional and $500 conditional with a 2 year cautionary period.

A couple of notes:
- I have never been arrested or in jail for this; I only got summoned to make a statement at the police station and I had to go to court for sentencing
- The 2 year cautionary period is no probation: I have never been on probation or had to report to a probation officer. The 2 years just means 'stay out of trouble for 2 years and you're fine'
- This conviction is done in a local so called Police court, where the
maximum possible sentence is 6 months. Even although US Immigration
defines defalcation as moral turpitude, the fact that the maximum possible sentence is less than 1 year made me eligible for an immigration visa. This wasn't easy at the time, but the local consulate has been very helpful in getting me through the loops (yes, the US government can also be helpful!)

Now onto the questions on the naturalization form
15. Have you ever committed a crime or offense for which you were not
arrested?
-> Answer No
16. Have you ever been arrested, cited or detained by any law
enforcement officer (including USCIS or former INS and military
officers) for any reason?
-> Answer Yes, I guess since I was cited? Or should this be No?
17. Have you ever been charged with committing any crime or offense?
-> Answer Yes
18. Have you ever been convicted of a crime or offense?
-> Answer Yes
19. Have you ever been placed in an alternative sentencing or a
rehabilitative program (for example: diversion, deferred prosecution,
withheld adjudication, deferred adjudication)?
-> Answer No
20. Have you ever received a suspended sentence, been placed on
probation or been paroled?
-> Answer Yes for the suspended sentence of 2 years I guess? Or No?
21. Have you ever been in jail or prison?
-> Answer No

Date arrested, cited,detained or charged? (mm/dd/yyyy)
-> Answer: conviction date
Where were you arrested,cited, detained or charged? (City, State, Country)
-> Answer: court where I was convicted
Why were you arrested, cited,detained or charged?
-> Answer: Co-principal in defalcation
Outcome or disposition of the arrest, citation, detention or charge
(No charges filed, charges dismissed, jail, probation, etc.)
-> Answer: Fine of $900

I do have a certified copy of the conviction that I will include with my application. Do I need to write an affidavit with an explanation similar with what exactly happened? Can't I assume that INS has all the paperwork in my file anyway?

The only thing that concerns me is that even although I received a Green Card and was approved, INS will not look at the details of my case and deny me. Or am I just worried about nothing? Obviously, I haven't been into trouble after my 'incident' in either my home country or the USA.

Thanks so much!
 
Did you disclose this offense on your green card application (assuming you obtained a green card after the incident)? If not, they'll probably notice the discrepancy and deny your naturalization.
 
Jackolantern said:
Did you disclose this offense on your green card application (assuming you obtained a green card after the incident)? If not, they'll probably notice the discrepancy and deny your naturalization.
Click to expand...

Yes, this was disclosed and the INS is fully aware of this so they should have it in their records.

Logically, I don't see how they can approve a green card but deny a naturalization request based on the same information; but it was a nightmare trying to explain this to IRS when I applied for my GC.
 
realexm said:
Logically, I don't see how they can approve a green card but deny a naturalization request based on the same information; but it was a nightmare trying to explain this to IRS when I applied for my GC.
Click to expand...

Anything is possible in the USCIS universe... :(
 
Realistically I think its unlikely you'll encounter any problems, especially since (I presume) you mentioned this during your GC application. Unless its a particularly serious crime, problems occurring outside the 5yr CIMT window are generally forgiven.
 
Ok, so I have my interview at the end of the month, but I am still kind of nervous that this conviction abroad will result in a denial or worse, even although the INS approved my Green Card. The charge 'defalcation' (or embezzlement) by itself would technically fall under moral turpitude, but during my GC application INS noticed that the police court who convicted me could only impose a maximum prison sentence of 6 months, so because of that 'exception' I received my GC (I guess that is one of the exceptions for this ground of exclusion appear in INA 212(a)(2)(A)(ii)).

Does the naturalization process have a similar exception? I spoke with some lawyers before applying, but since this conviction was abroad (with local laws) no one could really help me further unless I was willing to pay big dollars.

So my mind is a bit at peace that so far everything is going smoothly, but still... What if? Anyone any insights? Does the exceptions to INA 212(a)(2)(A)(ii)) also apply for naturalization?

This is what I read http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=90db444c20742af66534390068d58f66
"
(A) Effect of Crime Involving Moral Turpitude (CIMT) Convictions . An applicant who commits and is convicted of or admits to committing one or more crimes involving moral turpitude during the statutory period cannot establish good moral character and is ineligible for naturalization. See 8 CFR 316.10(b)(2)(i) . However, there is an exception to the general rule, which you must consider. See section 212(a)(2)(A)(ii)(II) of the Act. The exception applies if the applicant has committed only one CIMT and the crime is a petty offense. A petty offense is defined as a crime for which the maximum penalty possible for the crime does not exceed imprisonment for one year and , if there is a conviction, the term of imprisonment does not exceed six months, regardless of suspension. Thus, an individual convicted of a CIMT will only qualify for the exception if the two conditions are satisfied. Not only must the sentence imposed have been less than six months, the maximum possible sentence that could have been imposed must not exceed one year."
 
I think you should consult an immigration lawyer with knowledge of criminal laws because your case is not straightforward and you had been convicted in Europe. You should bring a lawyer with you to the interview. In my opinion, you seem to have a good moral character for 5 years and you will be fine.. but I am not really an expert. I strongly suggest you talk to Rajiv Khanna who is an excellent immigration lawyer and set up this website.
 
USGC485 said:
I think you should consult an immigration lawyer with knowledge of criminal laws because your case is not straightforward and you had been convicted in Europe. You should bring a lawyer with you to the interview. In my opinion, you seem to have a good moral character for 5 years and you will be fine.. but I am not really an expert. I strongly suggest you talk to Rajiv Khanna who is an excellent immigration lawyer and set up this website.
Click to expand...

I appreciate your comments regarding the lawyer, but unfortunately I can't afford one at this time. The problem is that I spoke with some lawyers but none of them are familiar with laws and justice systems overseas and are charging crazy fees to even look into this. But the general consensus of all of them was 'that I should be fine since I received permanent residency after my criminal record'.
 
realexm said:
Yes, this was disclosed and the INS is fully aware of this so they should have it in their records.

Logically, I don't see how they can approve a green card but deny a naturalization request based on the same information; but it was a nightmare trying to explain this to IRS when I applied for my GC.
Click to expand...

The only logic they use is 'We don't give a DAMN'.
 
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