Citizenship denied

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kimberlyd

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A few days ago, my citizenship was denied due to a conviction record last year. It was a petty theft and I paid for a fine and was put on probation for one year (already completed). It was the stupidest thing I've done and I truely regret it. However, what's done is done and now I have to face the consequences.

Do I need wait for 3 years or 5 years to reapply for citizenship? My application was based on marriage to a US citizen.

If I have the conviction record expunged, does it make any difference to the waiting time or the application itself?

If I go back to my home country for visiting and come back, is it possible that I'll be denied at the port of entry?

Thanks very much for any information you can provide.
 
In the same boat....

Kimberly -

I am so sorry to know that your CZ was denied. I have a few answers to your questions based on info that I got from this forum and from immig attorneys as well. I have a similar charge and my case is still pending in Court. I have my hearing in a few weeks and I will know what I'll be convicted of. The answers I'm giving you may not be accurate, so also pls check with an immig attorney before you re-apply.

* In your case, you can apply for CZ after 3 years from the date of conviction.
* Even if you have the conviction record expunged that is only with the State, County, Municipality, Police etc., but FBI will have your arrest record in a central place. One attorney told me that the reason they do that is, they need to find out if the same person has committed a similar or other type of offense later on, because for inadmissibility/ removal purposes, they need to keep track of such offenses. So, whether such an arrest record is expunged or not, does not make a difference for immig, that's why they even ask you to list expunged arrest records in your CZ application.
* One attorney told me that the Petty offense exception applies only to Inadmissibility/Removal purpose and if you were convicted of a charge that falls UNDER this exception, then you will not have a problem at the POE.

Here's the exception:
http://uscis.gov/lpBin/lpext.dll/in...?f=templates&fn=document-frame.htm#slb-act212
It is under the heading
(2) Criminal and related grounds.-
(A) Conviction of certain crimes.-
(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

* Section (II) will apply to you, if the charge you were convicted on falls under that category, which is the waiver for inadmissibility.

But another attorney suggested that it is better to leave the country only after getting CZ, in order to avoid any risk of removal at POE. He also told me that if at all such removal is initiated, then his charge to stop such removal would be $7500 to 10000 and he asked me to weigh the options clearly, before I make a decision to travel out of the country. At this point, even I'm confused if it would be wise for me to travel out of the country before getting CZ, as I've gotten 2 different answers from 2 different immig attorneys.

I have also sent you a private message. Please let me know what you think. Thanks.
 
For a successful citizenship application one needs to show good moral character for the past 5 years, as such it would be advisable for you to reapply after 5 years have elapsed from the date your offense was committed. Of course after conviction of certain offenses one can never successfully apply for citizenship. In your case, your chances are highest if you can show a clean record for past 5 yrs.
 
3 years or 5 years question

stallion4949 said:
For a successful citizenship application one needs to show good moral character for the past 5 years, as such it would be advisable for you to reapply after 5 years have elapsed from the date your offense was committed. Of course after conviction of certain offenses one can never successfully apply for citizenship. In your case, your chances are highest if you can show a clean record for past 5 yrs.
Click to expand...

I thought one immig attorney told me, that if a person was applying for CZ based on marriage to U.S.Citizen then they only need to wait 3 years to show good moral character, in case of a petty theft conviction. Also would you please post where you were able to find that info "one needs to show good moral character for the past 5 years". It will be very useful info for some of us whose application is already denied /may be denied. Thank you very much.
 
Stallion4949

I have a general question.

In one of the posts you had said that a Court disposition of any guilt on behalf of the defendant is not good for a CZ application. If someone is convicted of a Municipal Ordinance (as opposed to a Misdemeanor or Petty theft conviction), will that be considered a charge serious enough for CZ to be denied? Thanks for any input.
 
It is the nature of the offense that matters, whether the charges were pursued by the municipality, state or federal govt does not matter. A crime involving moral turpitude (any thing involving dishonesty pretty much qualifies) are a problem and generally bar an applicant from showing good moral character for at least 5 yrs. Similarly contolled substance offenses can be very problematic. Though all offenses can be taken into consideration even after 5 years have elapsed, at that point one can at least make an argument that one is of good moral character, many times successfully.
 
Good Moral Character

Generally, an applicant must show that he or she has been a person of good moral character for the statutory period (typically five years or three years if married to a U.S. citizen or one year for Armed Forces expedite) prior to filing for naturalization. The Service is not limited to the statutory period in determining whether an applicant has established good moral character. An applicant is permanently barred from naturalization if he or she has ever been convicted of murder. An applicant is also permanently barred from naturalization if he or she has been convicted of an aggravated felony as defined in section 101(a)(43) of the Act on or after November 29, 1990. A person also cannot be found to be a person of good moral character if during the last five years he or she:

has committed and been convicted of one or more crimes involving moral turpitude
has committed and been convicted of 2 or more offenses for which the total sentence imposed was 5 years or more
has committed and been convicted of any controlled substance law, except for a single offense of simple possession of 30 grams or less of marijuana
has been confined to a penal institution during the statutory period, as a result of a conviction, for an aggregate period of 180 days or more
has committed and been convicted of two or more gambling offenses
is or has earned his or her principal income from illegal gambling
is or has been involved in prostitution or commercialized vice
is or has been involved in smuggling illegal aliens into the United States
is or has been a habitual drunkard
is practicing or has practiced polygamy
has willfully failed or refused to support dependents
has given false testimony, under oath, in order to receive a benefit under the Immigration and Nationality Act.
 
my collected notes about FBI and expungment-1

Hi,

About FBI, I did quiet a search, talked to attorneys as well as browsed
various sites. This is my understanding.

Anytime you are arrested and finger prints taken, you are in FBI with charges and date of arrest and disposition yet. ( Exception - If the finger prints were not good enough to be accpeted by the computer, you are lucky, but that is almost no chance.)

Once your case is disposed in the court, it is the responsibility of the courts/judiciary/criminal_justice_departments to inform FBI about the outcome of the disposition. Looks like sometimes, they would not even inform FBI. In those cases, if you look at FBI name check results (which is called FBI rap sheet), it would only have arrest record and charges but no disposition. But, most of the times if there was a serious crime, FBI will be informed about the dispostion of the case. May be, after 9/11, every case's disposition is informed.

If you were not convicted and your dispostion does not say anything about any punishment that you served for example community service, and if you could get record expunged from your courts, you should be okay. Cause, there is no way FBI rapsheet is going to tell you about that.

My case, I got into trouble and did a community service of 16 hours, and the charges were dropped and I was not prosecuted. MY disposition does not talk anything excpet "OP" for Plea section. Only the courts maintain about the total prosecution details, for example, if you asked postposement of the case, community service that you have done, etc. I was eligible for expungement and applied for it. Once it is expunged, no more records will be available and FBI would have only disposition of "No Prosecution" if at all it was informed by the court, in addition to the arrest and charges. It would probably work for me if I apply and lie that I did do anything wrong. But, I am scared to lie on the application.

If I admit that I did a community serivce though I was not even prosecuted, I will be denied for sure since it happened within the statutory period. Since admission of guilt is good enough for immigraton to consider that it was a conviction.

Do not know what to do.

Anyway, I did some research that we could get an FBI report also by paying $18 dollars fee and a set of finger prints ( you can visit and get them from a local police or any othe lawenforcement agency) and expalining about the reason why you need it. ( Usually, people who what to adopt kids from outside USA, they would get FBI reports to show that they clean criminal record). Anybody has done that ?? check it out on www.fbi.org

Finally a cut and paste from a website about what a FBI rapsheet contains

(1) After screening the criminal history records check received from the Federal Bureau of Investigation in accordance with §B of this regulation, the Central Repository shall issue a printed statement to a:

(a) Licensed child placement agency; or

(b) Private entity.

(2) Except for necessary administrative or personal identification information, and the date on which the criminal history records check was completed, the printed statement shall contain only the following information, stated in the affirmative or negative:

(a) Whether the Central Repository has or has not conducted the criminal history records check under Regulation .06 of this chapter and this section and §B of this regulation; and

(b) Whether the covered individual is or is not the subject of a pending charge, has or has not been convicted, has or has not received a probation before judgment disposition, or has or has not received a not criminally responsible disposition of a crime or attempted crime identified in §B of this regulation.

(3) The printed statement may not identify or disclose a specific crime or attempted crime discovered by the criminal history records check of a covered individual.

jenimmi said:
Kimberly -

I am so sorry to know that your CZ was denied. I have a few answers to your questions based on info that I got from this forum and from immig attorneys as well. I have a similar charge and my case is still pending in Court. I have my hearing in a few weeks and I will know what I'll be convicted of. The answers I'm giving you may not be accurate, so also pls check with an immig attorney before you re-apply.

* In your case, you can apply for CZ after 3 years from the date of conviction.
* Even if you have the conviction record expunged that is only with the State, County, Municipality, Police etc., but FBI will have your arrest record in a central place. One attorney told me that the reason they do that is, they need to find out if the same person has committed a similar or other type of offense later on, because for inadmissibility/ removal purposes, they need to keep track of such offenses. So, whether such an arrest record is expunged or not, does not make a difference for immig, that's why they even ask you to list expunged arrest records in your CZ application.
* One attorney told me that the Petty offense exception applies only to Inadmissibility/Removal purpose and if you were convicted of a charge that falls UNDER this exception, then you will not have a problem at the POE.

Here's the exception:
http://uscis.gov/lpBin/lpext.dll/in...?f=templates&fn=document-frame.htm#slb-act212
It is under the heading
(2) Criminal and related grounds.-
(A) Conviction of certain crimes.-
(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

* Section (II) will apply to you, if the charge you were convicted on falls under that category, which is the waiver for inadmissibility.

But another attorney suggested that it is better to leave the country only after getting CZ, in order to avoid any risk of removal at POE. He also told me that if at all such removal is initiated, then his charge to stop such removal would be $7500 to 10000 and he asked me to weigh the options clearly, before I make a decision to travel out of the country. At this point, even I'm confused if it would be wise for me to travel out of the country before getting CZ, as I've gotten 2 different answers from 2 different immig attorneys.

I have also sent you a private message. Please let me know what you think. Thanks.
Click to expand...
 
jenimmi said:
Kimberly -

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

* Section (II) will apply to you, if the charge you were convicted on falls under that category, which is the waiver for inadmissibility.
Click to expand...

In my case, the charge was misdemeanor, so the maximal possible penalty is one year of imprisonment. The sentence I received was one year probation. Does my case fall under Section (II) above? The sentence in parenthesis (regardless of the extent to which the sentence was ultimately executed) confuses me.

I did speak to an immigration lawyer today, but I'm even more confused after speaking with him:

1. He said that I could reapply for citizenship as soon as I complete the probation and also have the conviciton record expunged. Is there any truth in this?

2. He also said one should be careful about leaving the country if you have a criminal record, regardless of what the actual charges are.

I'd greatly appreciate if if anyone has more information on this.
 
kimberlyd said:
In my case, the charge was misdemeanor, so the maximal possible penalty is one year of imprisonment. The sentence I received was one year probation. Does my case fall under Section (II) above? The sentence in parenthesis (regardless of the extent to which the sentence was ultimately executed) confuses me.
Click to expand...

There are 2 parts to that condition. I will try to explain what I have undetrstood this to be:

1) Specifically in your case, in the State that you were convicted, check the statute under which you are convicted and make sure the jail time for that offense/charge (the word "Misdemeanor" does not matter - check the actual section under which you are convicted - you will find this under the "charge" section of your court disposition) does not carry a maximum sentence of more than 1 year.

2) Sometimes a Judge may sentence one with a "Suspended Jail time" which means there's a Jail time let's say of 1 month or even 6 months, but it is suspended (meaning the person will not go to jail) when the subject meets certain other conditions such as payment of fine, successfully completing probation etc., In case one does not comply with one of the above such criteria or commits another offense during the probationary period then the Judge can actually "unsuspend" the jail time, which means the subject will go to jail. So, (regardless of the extent to which the sentence was ultimately executed) means that whether or not the subject went to jail physically, even the suspended jail time should not exceed a period of 6 months.

In your case, if your sentence did not even include a suspended jail time, but only probation time, then you do not have to worry as you fall under that 2nd category.

Now I have a feeling that your CZ may have been denied because at the time of interview, you probably still were on probation? If that were the case, that is reason enough for them to have denied your CZ. May be it is the officer's discretion whether or not to wait till the probationary period was over to decide Approval / Denial. I dont know what might have happened in your specific case as it is not clear whether you were still on probation or not at the time of interview.

I have also sent you a PM. Please check. Thanks.
 
Attention : ab100/ Rajesh

Hi Rajesh -

Your update on "my collected notes about FBI and expungment-1" was very informative. Thanks so much for sharing this with us on the forum. I have some questions regarding that, but I decided to wait and see part - 2 as well (Since you put part 1 in your first post). So, should we expect more findings or not - please let us know. Again, thank you so much for sharing what you know.
 
Interesting discussion. I have a dilemma somewhat similar to this. I pleaded no contest to a Petty theft infraction charge in California, in 1992. I paid a $50 fine and that was the end of it. The attorney at the time told me I was pleading no contest to a charge less than a misdemeanor. In 1997 I got married to a U.S Citizen. At the green card interview the immigration officer asked me to explain what happened and I did. She then left to consult her superior, came back and accepted my application for GC. In 1998 I got my Green Card In 2000, I went out of the country on vacation and came back a week later. No problems at Newark Immigration with regard to reentry.

As I understand, after 9/11, things got a little tougher. I would love to apply for citizenship (have been eligible since 2001) and also travel outside. But I am scared to since I don't want any chance of being put in removal proceedings. I have been trouble free since 1992, except for a littering ticket last year for which I paid fine at municipal court. There was no arrest or anything like that. I spoke a highly rated immigration attorney from MD, and that attorney didn't seem to know a whole lot more than I did. She couldn't advise me for sure if there is a risk of removal and denial of entry if I went on vacation outside the USA. She wasn't sure if I would fine at citizenship interview.

So my dilemma is should I apply for citizienship? In the original poster's case, they didn't initiate removal proceedings at the time of the interview. That was one of my concerns. I didn't want to go to citizenship interview and then get detained and put in removal proceedings.

Does anyone have an opinion on my case? Thanks.
 
vp4

Vp4:

I think you should be fine if you apply for citizenship. Your incident happend more than 10 years ago -- that's long enough to show you have good moral character.
 
kimberlyd said:
A few days ago, my citizenship was denied due to a conviction record last year. It was a petty theft and I paid for a fine and was put on probation for one year (already completed). It was the stupidest thing I've done and I truely regret it. However, what's done is done and now I have to face the consequences.
Thanks very much for any information you can provide.
Click to expand...

Hi,

I am sorry to hear that.BTW did u declare this incident in your N-400 and to support this did you support any court certified copy saying that charges are dismissed after completion of carry order or Probabtion order?

The reason is I am in same boat as you, but I don't have any penality or probabtion and charges are dismmised after 90 day carry order? I am worrying about my case now.. :confused:
 
NYJguy

NYJguy said:
Hi,

I am sorry to hear that.BTW did u declare this incident in your N-400 and to support this did you support any court certified copy saying that charges are dismissed after completion of carry order or Probabtion order?
Click to expand...

I filed N400 in 2003, before the incident occurred. At the interview I was asked whether I had been arrested/convicted, and I had to say yes. I was on probation at that time. The INS officer told me he was certain my application would be denied, but I didn't receive the denial letter until recently.
 
kimberlyd said:
I filed N400 in 2003, before the incident occurred. At the interview I was asked whether I had been arrested/convicted, and I had to say yes. I was on probation at that time. The INS officer told me he was certain my application would be denied, but I didn't receive the denial letter until recently.
Click to expand...

Thanks for your reponse. In my case incident happened in 2002 and the case was dismissed. I have court certified copy saying that case is dismissed after succesful completion of carry order. I don't know whether IO can understand this and put my case in jeopardy.
For safe I am going to carry with me my record for the past couple of years from local sheriff's office. Do you think, is it going to be a problem for my citizenship interview. Also thinking of taking my wife for interview along with me, so that it provides additional evidence.. What do u say?
 
NYJGuy

If you case was dismissed, I don't think it should be a problem. But you should bring with you the court certified copies of all arrest/conviction records.

Not sure whether the citizenship allows the spouse to be present at the interview or not...It's defintely not required.
 
kimberlyd said:
If you case was dismissed, I don't think it should be a problem. But you should bring with you the court certified copies of all arrest/conviction records.

Not sure whether the citizenship allows the spouse to be present at the interview or not...It's defintely not required.
Click to expand...

Thanks for your reply. When I filed my N400 I submitted original court certified copy along with the application. The letter says that
"Case is dismissed after successfull 30 day carry over period".

Right now I don't have any original, but I have a xerox copy/faxed copy which is duplicate of above letter.

I don't know hwether this enough to show that no charges against me. On top of this, I am taking another police report which has history of my record.

Do u think this si sufficent? I really worried about whether I get citizenship or will be deported.. My interview is next friday
 
NY Guy

I think you shall not worry about this. This is no way to get deported even you were convicted of something.

Do NOT be nervous during interview, otherwise the officer may think you are hiding something. Based on the court paper, you shall be OK.
 
jenimmi said:
There are 2 parts to that condition. I will try to explain what I have undetrstood this to be:

1) Specifically in your case, in the State that you were convicted, check the statute under which you are convicted and make sure the jail time for that offense/charge (the word "Misdemeanor" does not matter - check the actual section under which you are convicted - you will find this under the "charge" section of your court disposition) does not carry a maximum sentence of more than 1 year.

2) Sometimes a Judge may sentence one with a "Suspended Jail time" which means there's a Jail time let's say of 1 month or even 6 months, but it is suspended (meaning the person will not go to jail) when the subject meets certain other conditions such as payment of fine, successfully completing probation etc., In case one does not comply with one of the above such criteria or commits another offense during the probationary period then the Judge can actually "unsuspend" the jail time, which means the subject will go to jail. So, (regardless of the extent to which the sentence was ultimately executed) means that whether or not the subject went to jail physically, even the suspended jail time should not exceed a period of 6 months.

In your case, if your sentence did not even include a suspended jail time, but only probation time, then you do not have to worry as you fall under that 2nd category.

Now I have a feeling that your CZ may have been denied because at the time of interview, you probably still were on probation? If that were the case, that is reason enough for them to have denied your CZ. May be it is the officer's discretion whether or not to wait till the probationary period was over to decide Approval / Denial. I dont know what might have happened in your specific case as it is not clear whether you were still on probation or not at the time of interview.

I have also sent you a PM. Please check. Thanks.
Click to expand...


Kimberly/Jenimmi,

It is my understanding.

1. Expungement- is for local police/court which has adjudicated your case.
NOT For FBI. They have their copy of disposition with charges, etc, a record which is permanent. If your disposition says that you were on probation, expungement will not make any difference cause they have FBI records. You would have to specify the conviction on your N-400 when you reapply. Do not believe your attorney in this case.

Theft is considered CMT ( Crime of Moral Turpitude), Even your disposition says that you were on probation for 1 day and the case is dismissed, immigration law says you are convicted. Simple, any restraint on your freedom or liberty ( 1 day of probation) is considered as conviction. The CMTs are different, if you are convicted as above, they go by the statue for which your prosecuted. You can think that you are convicted for a crime which could have been 1 year of jail. In this case, suspended or Unsuspended does not matter. Remember it is a CMT. Any guilt admission is good enough and will be treated as it you were convicted for entire statues' period ( 1 Year).

No.2 Travelling outside, I heard the same thing as you did. In my case, my disposition says that I was not prosecuted, so I was advised to carry a court record of disposition when I travel which could help me.
 
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