Arrest for DV Charges and Dismissal after pretrial diversion

J

jaypoor

Registered Users (C)
I was arrested with simple battery(DV) charges in 03/2010 which was dismissed in 09/2010 based on pretrial diversion. Would it make sense to go ahead with naturalization process in 09/2011 or wait for 5 years ? Could immigration attorney make any difference?

Thanks in advance,
Jay.
 
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I am still hoping to hear from you guys. If you need more information, please let me know..
 
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What happened to my previous post in this thread? I don't even remember what I said.

Anyway, since it was liquidated in pretrial diversion you were not officially "charged" with it through a court system then were you? So it was an arrest and suspicion of but there was no final disposition because it was thrown out without any judgement or reduction of charges am I right? You may not even have to admit to this or list anything other than the arrest if it shows up but I'm not sure.

Or are you saying you did sign a plea bargain admitting some degree of guilt in exchange for this sentence? I'm confused. Was the DV charge dropped due to technicalities or lack of evidence and the plea bound to some other concurrent charge possibly?
 
Hi Praxx,

Thanks for posting response. I didn't see your previous post in this thread so did you post it in different thread by accident?
 
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If I didn't post in this thread then why did you address me before I even posted in this thread? That's what made me think I had a post.

Well if they have an arrest record only then I believe all you have to do is say you were arrested but there were no charges filed and that should end the matter unless there are court records to contradict that. They would probably require you to go to the arresting agency and obtain a piece of paper saying that no charges were ever filed. One of the real professionals can probably confirm or deny this in here.
 
PRE-TRIAL DIVERSION

Also known as adjournment in contemplation of dismissal or conditional dismissal. A program in which a defendant essentially is put on probation for a set period of time and his or her case does not go to trial during that time. If the defendant meets the conditions set by the court, then the charge will be dismissed.


You had to comply with something. What was it? Anger Management? Counselling? An assessment by a shrink? Drug testing? What?

Please stick to ONE post per question. Don't invoke some response to a differenmt question from some other thread as it is too confusing.
 
Yes, it was 1) 24-session of counselling and 2) no violent contact.
 
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jaypoor said:
Yes, it was 1) 24-session of family violence prevention counselling and 2) no violent contact.
Click to expand...

"No violent contact" sounds like a protection or restraining order. NEVER violate one of those as there is no way to avoid a negative immigration consequence, not even a presidential pardon.

Good compliance and a record of no violations of conditions set by the court or probation department goes a long way in granting a favorable exercise of discretion in matters involving discretion.

Matter of Jung Tae SUH, 23 I&N Dec. 626 (BIA 2003) Decided July 1, 2003

(1) A presidential or gubernatorial pardon waives only the grounds of
removal specifically set forth in section 237(a)(2)(A)(v) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(v) (2000), and
no implicit waivers may be read into the statute.

(2) The respondent’s pardon did not waive his removability as an alien
convicted of a crime of domestic violence or child abuse under section
237(a)(2)(E)(i) of the Act, because that section is not specifically
included in section 237(a)(2)(A)(v).

Section 237(a)(2)(A)(v) of the Act specifies the effect of a
presidential or gubernatorial pardon on certain grounds of removability.
It states that “[c]lauses (i), (ii), (iii), and (iv)” of section
237(a)(2)(A) “shall not apply” where such a pardon has been granted. It
thereby provides for an automatic waiver of removability where a pardon
has been granted for (i) crimes of moral turpitude, (ii) multiple
criminal convictions, (iii) aggravated felonies, and (iv) certain high
speed flight convictions. There is no comparable provision regarding
pardons that would cover convictions for other offenses that render an
alien removable, such as acts of domestic violence or child abuse
pursuant to section 237(a)(2)(E)(i), under which the respondent was
charged. Other removable offenses, such as controlled substance
violations under section 237(a)(2)(B), certain firearm offenses under
section 237(a)(2)(C), and violations of protection orders under section
237(a)(2)(E)(ii), are similarly not covered by the pardon waiver of
section 237(a)(2)(A)(v) of the Act.
 
BigJoe5 said:
"No violent contact" sounds like a protection or restraining order. NEVER violate one of those as there is no way to avoid a negative immigration consequence, not even a presidential pardon.

Good compliance and a record of no violations of conditions set by the court or probation department goes a long way in granting a favorable exercise of discretion in matters involving discretion.
Click to expand...

Thanks BigJoe,

Yes, I complied with both conditions. Once I completed 24-session counseling in timely manner, I reported back to court. They looked at details and dismissed the case (no more conditions, probation or anything of that nature). Now as I would become eligible for naturalization based on 5 years after LPR criteria in 09/2011 which would be 1 year and few days after dismissal, I am considering of applying for naturalization so I have following questions -

1) Since case was dismissed and expunged, how would that play out for my naturalization application?
2) While applying, is there any Dos and Don'ts that I should consider?
3) Is there anything that I could do between now and interview that would help me on 'good moral and character' front?

I am seeking guidance so please respond...
 
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Some very important points:
- You were arrested and, even though you were not formally convicted and charges were ultimately dismissed, you have to disclose this in your naturalization application. The FBI record will indicate the arrest and that will be there until you die, unfortunately.
- Since the Judge ordered you some sort of punishment (class, "no violent contact") and you had to report back to the Judge for the charges to be dismissed, this may sound like a classic diversion scheme that immigration may consider a conviction in their eyes. The fact that the charges have been expunged dont matter. Immigration will always be able to see this.
- You should be fine to leave and come back to the US since a formal conviction was not entered into the system, however, while applying for naturalization, immigration will take a close look at the situation and make their own interpretations. There are risks in your particular scenario. If you are not in a rush to become a citizen, it may be better to wait 5 years so you can show you have good moral character in the statutory period. Also, a DV charge is a very serious one so I would also highly recommend you speak with, at least, 2 immigration attorneys regarding your case.
- If it had been a diversion scheme set forth by the DA with no participation of the court (no JUDGE in the loop), you would be able to apply right away since that kind of diversion is not considered a conviction for immigration purposes.

Conclusion: You can risk applying, but there are high chances of denial since immigration may interpret your diversion as a conviction, since some sort of class was ordered by the court system (ie - Judge). See a lawyer and present him or her with all the documentation you have: court dispositions, evidence of diversion, arrest reports,etc..

Hope this helps.

ps- I am not a lawyer. This should not be considered legal advice. This only constitutes my opinion on the matter.
 
Domestic violence

bokunba said:
Some very important points:
- You were arrested and, even though you were not formally convicted and charges were ultimately dismissed, you have to disclose this in your naturalization application. The FBI record will indicate the arrest and that will be there until you die, unfortunately.
- Since the Judge ordered you some sort of punishment (class, "no violent contact") and you had to report back to the Judge for the charges to be dismissed, this may sound like a classic diversion scheme that immigration may consider a conviction in their eyes. The fact that the charges have been expunged dont matter. Immigration will always be able to see this.
- You should be fine to leave and come back to the US since a formal conviction was not entered into the system, however, while applying for naturalization, immigration will take a close look at the situation and make their own interpretations. There are risks in your particular scenario. If you are not in a rush to become a citizen, it may be better to wait 5 years so you can show you have good moral character in the statutory period. Also, a DV charge is a very serious one so I would also highly recommend you speak with, at least, 2 immigration attorneys regarding your case.
- If it had been a diversion scheme set forth by the DA with no participation of the court (no JUDGE in the loop), you would be able to apply right away since that kind of diversion is not considered a conviction for immigration purposes.

Conclusion: You can risk applying, but there are high chances of denial since immigration may interpret your diversion as a conviction, since some sort of class was ordered by the court system (ie - Judge). See a lawyer and present him or her with all the documentation you have: court dispositions, evidence of diversion, arrest reports,etc..

Hope this helps.

ps- I am not a lawyer. This should not be considered legal advice. This only constitutes my opinion on the matter.
Click to expand...

Hi Bokunba
Thanks for such a nice reply.
Actually last year I also got arrested for DV (although it was not my mistake) and then I got pre trial release without any condition (no protective orders). I am living with my family (wife and kids)
I hired the lawyer and I was able to got verbal deal with DA That I will do DV anger management classes and she will dismiss my case. Which I am doing now.
So in my case, I didn't plead guilty, I didn't sign any agreement. No fine, No probation. Nothing has been ordered by judge. I am just told to finish these classes (only for DA.and she will not mention these in any official document) by certain time and I will be fine
But I am still scared of immigration people. I am eligible to apply my citizenship this year. Please let me know how this thing will affect my naturalization and traveling abroad. What is the safe path for both of these situation where you gonna see DHS.

Thanks
 
Thanks Bokunba for very detailed response. As suggested, I will consult attorneys before making decision to apply now or wait for 5 years.

Jay
 
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