485 interview with past arrest - help

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canucksta17

Registered Users (C)
I need some desperate advice. Currently I am scheduled for my 485 interview in a couple weeks. Long story short, 7 years ago I was arrested and my case was dismissed. On the 485 form I did not mention that I was arrested because I was under the impression that they meant for convictions only. I recently checked my record with the State Police and also did an FOIPA with the FBI. Both inquires came back with "No records found". I also obtained my court records and this also indicates that I was dismissed based on Accelerated Rehabilation (community service).

I am now very concerned as I am sure this interview is happening because I indicated "NO" that I was arrested on the 485 form. How do I best handle this?

I just informed my lawyer of my arrest and he is now telling me that he may not be able to represent me because of a conflict of interest with my company. My company is unaware of my arrest and I have asked him to keep this confidential.

My questions to you fine folks:
(1.) Would this be something I could handle without an attorney? He is telling me this will cost thousands of dollars more.
(2.) Since I misrepresented myself on form 485, how will the BCIS treat me/my application. I have gathered all records and court forms and plan to be honest with them during the interview. Could my application be denied? Will they detain me?
(3.) Should my application be denied, what steps can I take afterwards? Do I need to quit my job? Do I need to leave the country? :eek:

I appreciate anyones advice on this matter.

Regards,
Canucksta.
 
canucksta17 said:
I need some desperate advice. Currently I am scheduled for my 485 interview in a couple weeks. Long story short, 7 years ago I was arrested and my case was dismissed. On the 485 form I did not mention that I was arrested because I was under the impression that they meant for convictions only. I recently checked my record with the State Police and also did an FOIPA with the FBI. Both inquires came back with "No records found". I also obtained my court records and this also indicates that I was dismissed based on Accelerated Rehabilation (community service).

I am now very concerned as I am sure this interview is happening because I indicated "NO" that I was arrested on the 485 form. How do I best handle this?

I just informed my lawyer of my arrest and he is now telling me that he may not be able to represent me because of a conflict of interest with my company. My company is unaware of my arrest and I have asked him to keep this confidential.

My questions to you fine folks:
(1.) Would this be something I could handle without an attorney? He is telling me this will cost thousands of dollars more.
(2.) Since I misrepresented myself on form 485, how will the BCIS treat me/my application. I have gathered all records and court forms and plan to be honest with them during the interview. Could my application be denied? Will they detain me?
(3.) Should my application be denied, what steps can I take afterwards? Do I need to quit my job? Do I need to leave the country? :eek:

I appreciate anyones advice on this matter.

Regards,
Canucksta.
Click to expand...

Canucksta,

Are you sure that your interview is about your past arrest? It is very strange that FOIPA came back with "no records" although you have an arrest record. (if so, does anyone know what is the purpose of an FOIPA?) Were you fingerprinted when you were arrested? When was your I485 applied? Did you have a "hit" in FBI name check?
 
just explain the situation in the interview honestly

Your case will be treated as a conviction to the CIS because of you had community service, which is a restriction to civil liberty. However, if the potential penalty is less than a year in jail (if you were convicted), then you have no problem with GC because such a conviction is no bar for immigration. I had done lots of research on this and very confident on this.

It is OK that you made a mistake on the form. All you need to do is to explain carefully that you made a mistake and would like to explain the situation to them. They will allow you to make mistakes as long as you explain in interview.

Good luck.
 
Thank you for responding.

I am very certain my interview is concerning my past arrest and moreso that I did not indicate this on 485. Per my State law, my case was dismissed based on the successful completion of my community service (Accelerated Rehabilitation). I spoke with a State Official regarding this and they had mentioned that 20 days after the dismissal date, all records are then erased. I have official documentation from the Dept of Safety and an FOIPA that indicates I have no record with the State or the FBI. However I am sure CIS sees my arrest in their system somewhere and wants to speak with me about it. It happened 8 yrs ago, the charge was considered a fourth degree felony - weapon in a motor vehicle. No I did not have a gun, it was a homemade billy-club in my car. I was arrested and fingerprinted. Looking back I still can't believe I was caught in a situation like that however the past is unchangable at this point.

bambooshoot - How can I know if my name came up in the FBI namecheck? The FOIPA says no records found however I'm sure there is another system they use where this information is not released the public.

wildthing - Why would CIS treat my case as a conviction when it was dismissed? Again I have documentation from both State and Federal that I have no record. You mentioned that "if the potential penalty is less than a year in jail (if you were convicted), then you have no problem with GC" Well with regards to the law, I was not convicted so does this still apply?

I guess the best thing for me to do would be to document the details of my arrest so that I can prove to the officer at my interview that I am not trying to hide anything. Do you agree? My lawyer is crying about "conflict of interest" and says he may not be able to represent me because the company does not know of my arrest. He now wants money from my pocket in order to perform the "research" that needs to be done. My manager knows about my past as we joke about it and at this point I am willing to let the company know of my prior arrest.

Do you guys have any advice? Again your help is much appreciated.

Canucksta.
 
Canucksta,

Normally if they find your name somewhere as a HIT in the FBI records, it takes a long time for them to resolve it. There have been people who have been waiting for 2-3 years for their FBI name check to resolve. If your case is pending for a long time, you do a status inquiry and find out that your case is stuck in FBI name check. That's why I'd like to know the details of your case. That is, the notice date of 485, finger printing date etc.

I would suggest that you should not mention anything about your arrest on your own in the interview. Don't get nervous about it and explain the situation only if asked.
 
I think it most likely they know about your arrest because of finger printing. They keep finger printing results in their database for very very long time. So you will most likely to get a HIT on FBI finger print test. Don't try to hid if they ask....just explain it... should be fine.
 
ok..when you run out of ideas, consider this:

I suspect this interview has nothing to do with your prior arrest. If I were you, I would take all the paperwork relating to the arrest but keep my mouth shut and hope they don't ask about the arrest. You don't have to volunteer information if they don't ask for it.

If they do ask you if you were ever arrested, there is no way you can say "no" as they may only ask you this if they suspect something. Then you will have to spill the beans. You can say the reason you did not mention that in your application was because you were not guided properly by your attorney and that's why you didnt bring him

Anyway, do what your heart/mind says but this is what I may have done.
 
TO : canucksta17

Dear Canucksta17

I also had an arrest, but
my lawyer told me to write :

"no" to question "if you were arrested" question in I-485 filing, because my case was court-sealed.

I wrote "YES", but would I had written "NO",
I would tell the interview-officer, what the answer was provided by the lawyer, and I have here all the papers related to the case.

And I would answer "YES" to the question of the officer about the arrests, and then tell him about the lawyer and his decision to write "NO" in the paper form beacuse of .... reasons, and here are all the papers related to the case ...

Hope that helps,
just don't lie to the officer, you gotta tell the officer you had an arrest ... And then show proofs what you are OK and approvable...

Sincerely,
Romano
 
Thank you for your replies...

All your advice is so greatly appreciated. I pray that my interview goes well. My final question is, should I or should I not proceed to this interview with my attorney?

Thank you everyone,
Canucksta
 
Yes, you should! Only question is can you afford to pay extra for your current lawyer or can you find someone else who charges less but has good experience and reputation with handling these interviews (cannot stress this enough).

You do not want to take a lawyer who cannot be an asset. Ask around to see if anyone else has taken a lawyer with them and if they recommend him/her. You want someone who is up to date with the law, has a good personality, very good communication skills and an attitude to help others. He/she should also show a genuine interest in your case. If that lawyer is only going to do what you can do yourself, then what is the point. I know it all sounds obvious but long time ago I dealt with a lawyer whom even I couldn't understand! He had a tense look on his face and seemed always annoyed...wonder if he is still around ;)
 
Also, read this (http://www.immigration-law.com/) :

08/17/2005: October New Fiscal Year Visa Number Allocation and USCIS Preparation for Adjudication of EB-3 485 Applications

.....

Fourth, you should not do anything that will either cause a delay in completion of the name checks or trigger trasfer of the case to local district offices for clarification of issues that surfaced through the name checks for fact findings through the interviews. Minor violations of criminal law or local ordinance that require fingerprinting may trigger transfer of the cases to local offices, no matter whether it involves a deportable offense or not. Exit from the U.S. may also be reported by BCP inspectors through the database and the surrendered I-94 documents, which can cause some delays in adjudications, even though in most cases international travelling should not and have not affected adjudication of I-485 applications.

--------------------

If it turns out that you were called for an interview for your past record, you won't regret taking along a good attorney.
 
Stay cool,arrest is not big thing in USA.

Hi Man
Don't worry about arrest. That’s not a big deal for small offence. Here first thing corp do is arrest. Now second part ,when asked have you been arrested ,say "YES" as someone suggested ,there is no way you can hide it. Now he/she may ask you why you have written "NO ".Try to be (or pretend) to be innocent and say you did not recall why it is written NO but it seems you were not guided properly otherwise you don’t have any intension to lie and have brought all ur paper. Let me tell you if they drag you towards lie, that will be worst. You have to prepare yourself to prove that you don't lie. The interview may not touch this topic at all. Lawyer will not help much here .They will get dollar in advance and hence not play any trick to save you. I have seen this. You can take advice from them in advance. Good lawyer not the type of lawyer who says conflict of interest for the case he has been paid. let me give two example of trouble for lie. Once (5 years ago) ,I said I have no driving exp in Drivers license test form and that "I never drove Motor car in India and have no driving license" and did not go for training either. If you say yes ,they will take away your Indian license (in GA).I cleared the test and same day I tried for road test. The lady officer asked me to drive (she was with me in car) and just after 2 minute (the way I was driving) she asked me to stop and asked I can bet you have driven earlier. I said yes but not car ,its two wheeler. She called corp and some 2-3 corps came and cornered me and it was a big drama. She was repeatedly saying ,I am a liar ,fraud etc and wanted to check my immigration doc. I was about to arrested .I had come to USA 3 weeks ago on Valid H1b. I was maintaining my calm. Then I said "confidently" if you are done should I say some thing ? Corp allowed me to say and also advised me my right to remain silent. Then I asked (to lady office)who told you that I was driving in India ? She got scared (that I may back off) and pleaded me not to back off now. I have not recorded your statement. Then I said ,you are right its me who told you that I drove in India. she asked "then why did you write 'no' in driving license form". I said , please read the form carefully its asking for Motor car not motor cycle hence I wrote "NO" and in India Motor cycle and Motor car are two different thing. All the corps started laughing and said that’s true in USA too, the lady got very embarrassed. Laughter of corps had diluted the tense situation. But when you guessed I have the road maneuvering qualities ,I said Yes". Now where I am lying and where is fraud ?Then she asked me where is your license I said its in India but I can bring it and it will take 2 week. They accepted that I did not had intension to lie and after some formalities given me license after two week. They returned my Indian license .I asked why you are returning this? She said "It seems you are emotionally attached to your Indian License and hence returning " and was giving me mischievous smile .She said this time you got away due to your smartness but let me give you one advice "Never never lie in this country" . :D
Second example: my friend's H1b got denied as he lied and they caught it. He has be debarred to enter USA for 99 years. what was the lie ? while coming to uSA on Business visa he said no to a question that he did not applied for H1B visa. Latter after 3 months he gone for H1B stamping and the Officer could recall his last interview (4 months old) and said you had applied for H1B when you said NO and banned him for entering USA for 99 years for lying. Hence be careful about "LIE". You best bet will be to prove that you are innocent and honest person without any criminal history.
 
canucksta17 said:
All your advice is so greatly appreciated. I pray that my interview goes well. My final question is, should I or should I not proceed to this interview with my attorney?

Thank you everyone,
Canucksta
Click to expand...
Canucksta,

Could you please tell us what are you planning to do for your interview ?
Are you considering going for interview with a lawyer ?

Thanks
 
PM for the member "poongunranar"

PM for the member "poongunranar". He has excellent knowledge on such matters
 
Canucksta & tammy2

I think wildthing and other gurus have noetically opined on what needs to be done during your interview.

Please note that the question in the I-485 form is very clear, even without any legalese. It says, "have you ever been arrested, cited, charged, indicted, fined or imprisoned.........excluding traffic violations." The question begets an affirmative answer, even if one of the conditions apply.

The point to be observed punctiliously is the one where it is pointblank: "have you EVER been arrested?" Now, arrest records may be expunged due to various reasons including a plea-bargain. However, an "arrest" is an "arrest" irrespective of what the sentencing, charging, and indictment was pertaining to the case.

In your case, inter alia, you were "arrested." As a consequence of the arrest, you were "cited" and then were produced in court. These are irrefutable statement of facts. However, subsequent to your deal during the time of sentence, you were able to do community service, which helped to expunge those arrest records. Still, it never threw away the fact that you were arrested. Legally, an "arrest" is an act of taking or holding a SUSPECTED CRIMINAL with legal authority by a duly sworned law enforcement officer. That is all an "arrest" is all about. What all followed thereof are other stages of prosecution under the criminal justice system.

Therefore, first of all, let us all clearly agree to the premise that the answer to your I-485 questionnaire should have been a YES instead of the NO you had given.

Now, please do not waste any more time in anaylzing (and of course paralyzing your wits) whether the officer at the time of interview will get to know about your arrest, if you should continue to assume otherwise. Rather, please note that you were arrested and so when the officer interviews you, the answer should be a YES.

Now, since you had signed the I-485 form under sworn penalty of perjury clause as per the laws of the United States of America. As such penalty of perjury is a higher crime than the crime itself. However, stare decisis (jurisprudence) in these types of issues pertaining Immigration has shown that USCIS considers mistakes of this nature to be pretty common, insofar as there is no mens rea (criminal intent to deceive or perpetrate a criminal act intentionally) established in the applicant.

When you go to the interview and you say NO, you are clearly establishing a mens rea in that you are purposefully misleading the adjudicating authority and that too on oath. That would be a dangerous Kamikaze act to bring down your dreams of obtaining residency in this country. Because, when you do that, you are establishing a clear intent to deceive. And since you will be interviewed under Oath, that constitutes a clear criminal offense, punishable by law, including inter alia deportation and removal. Therefore, you must clearly answer YES, during interview.

Now comes the issue of the consequence of answering YES. The adjudicating officer will definitely ask you about the arrest records and the timing of the arrest. Most of the time, they don't pay cognizance, if the arrest was dismissed by the court, that was the only arrest and records were expunged. They merely correct the answer from a NO to a YES and they get copies of your court documents and merely append it to the file and proceed with adjudication. In fact, you don't need to worry, because your offense was not an Aggravated felony; nor is it a CIMT (Crime Involving Moral Turpitude) and you are a one-time offender. Therefore, as far as you can straighten your records during interview, you are just fine. Definitely have an attorney with you as you will find a good morale and can answer with confidence and poise. When the officer asks you why you had answered NO, you can give her the full story in that you had assumed that you were never arrested because of subsequent dismissal and that you are still not sure about it (it being "whether you were arrested"). That is why you have brought all the court dismissal documents and all other papers relevant to your case to set the records straight. I am sure the officer will appreciate your answer and will proceed with further adjudication.

I can bet dollars to doughnuts on my opinion, which is definitely not a legal opinion :) and should be taken with a pinch of salt as I am not a legal attorney. However, this is what it is: I am yet to see a case, where the officer had ordered deportation for a mistake committed in the form submitted, insofar as it was a genuine clerical mistake and was never done to mislead the authorities. And yours is no different and will be no different as long as you don't create a worst situation out of a benign interview, where you are being provided with a golden opportunity to come out clean. In fact, ipso facto of your file being transferred for an interview is to make sure that you have no intentions to deceive, but to clarify on this question USCIS may have regarding your arrest and/or other issues thereof.

Good luck.
 
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