Will this trespass plea conviction affect eligibility for N400 citizenship?

robhostein

New Member
In 2009 I was arrested for attempted breaking and entering with intent to commit larceny. This was in the state of Virginia. I had no criminal record before that. The original charge is based on virginia criminal code 18.2-91, which is a class 5 felony punishable by 1 to 10 years in prison, or a maximum of 12 months in jail, and a maximum fine of $2500.

The prosecutor offered me a reduced charge to "trespass" (18.2-121) if I plead guilty to it. That would also come with a fine of $250 ($500 with $250 suspended), 10 days in jail, 350 days suspended jail, for a total of 360 days imposed, on the condition that I stay away from the home of the victim. Although it says the sentence is 10 days in jail, the prosecutor suspended 5 so I only had to spend 5 days in jail. A class 1 misdemeanor is punishable with no prison time, a max of 12 months of jail, and a max of $2500 fine.

I have the court documents here with me, that have the arrest warrant, the plea agreement that I signed, and the final disposition.

Basically, the judge drew a line in pen through the original printed words of the charge where it says, under criminal code "18.2-26/18.2-91," that I "attempted to enter in the nighttime the dwelling house or adjoining occupied outhouse of *victim's name*, with the intent to commit larceny." and just wrote underneath, "Trespass."

If you were to ignore the crossed off words, it's basically saying that I "unlawfully in violation of Section 18.2-121, Code of Virginia: Trespass."

The back of that, which is the disposition or page of the preliminary hearing that the judge gets to write down sentence, says that the charge was reduced to, and that i'm guilty of, "misd trespass." The added condition to my sentence, in addition to my jail time and fine, is that during my suspended sentence period, I am to "stay away from *victim's name* residence."

So, in looking at those pages, do you think that USCIS will still see what's on those pages as a CIMT? Do I still have to wait five years after this conviction to apply for citizenship? What about when it's time to renew my green card? Because really, all that's left is the word "trespass" as the description of my conviction. And this is all that's in the court's record, just those three pages. This is the only arrest and conviction I have on my record.
 
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I believe you have to wait 5 years after you completed the sentence rather than 5 years after the date of conviction...I also think you should just show the disposition page without the larceny stuff on there......either way wait for the forum gurus to answer your questions, i have no idea
 
§ 18.2-121. Entering property of another for purpose of damaging it, etc.

It shall be unlawful for any person to enter the land, dwelling, outhouse or any other building of another for the purpose of damaging such property or any of the contents thereof or in any manner to interfere with the rights of the owner, user or the occupant thereof to use such property free from interference.

Any person violating the provisions of this section shall be guilty of a Class 1 misdemeanor. However, if a person intentionally selects the property entered because of the race, religious conviction, color or national origin of the owner, user or occupant of the property, the person shall be guilty of a Class 6 felony, and the penalty upon conviction shall include a term of confinement of at least six months, 30 days of which shall be a mandatory minimum term of confinement.

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Under a categorical approach, this is not a CIMT. Depending on the actual information available in the record, it may very well be a CIMT under a modified categorical approach. Show the paperwork to a lawyer for an analysis.

The N-400 Officer would likely use discretion to deny the N-400 if filed too soon in the absence of affirmative positive factors specifically offered for consideration. Such things must be offered and would not be requested.

http://www.callyourlawyers.com/pdfcaselaw/Conviction_removal_Checklist.pdf Not deportable.

http://digital.library.unt.edu/ark:/67531/metacrs9934/m1/1/high_res_d/RL32480_2006Oct23.pdf additional background reading.
 
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