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criminal charge dismissed
- Thread starter car1975
- Start date
You need to provide more information. Were you an LPR when this happened? I presume so. Also, when you signed the plea bargain did they make you read and sign as part of the consent the understanding that any plea bargain can have immigration consequences? Also when did you first enter the US and what was the arrest date in relationship to the entry?
If the charges were dropped then it might not affect your case but you should really speak with 2 or more decent lawyers about this too after you are done talking about it on the forum.
If the charges were dropped then it might not affect your case but you should really speak with 2 or more decent lawyers about this too after you are done talking about it on the forum.
dafortycal
Registered Users (C)
My God Praxx, are you a idiot? The charges were dismissed. No Charge, no conviction, no problem! but the arrest would have to be reported on any application he files with the service. He will need to get something from the court saying the charges were dissmissed or dropped. I haven't figured you out, do you work for a immigration lawyer, and your only here to tell people to go meet with one, and you get a cut of the $300 a hours they will make. You really have no idea what you are talking about half the time.
You need to provide more information. Were you an LPR when this happened? I presume so. Also, when you signed the plea bargain did they make you read and sign as part of the consent the understanding that any plea bargain can have immigration consequences? Also when did you first enter the US and what was the arrest date in relationship to the entry?
If the charges were dropped then it might not affect your case but you should really speak with 2 or more decent lawyers about this too after you are done talking about it on the forum.
My God Praxx, are you a idiot? The charges were dismissed. No Charge, no conviction, no problem! but the arrest would have to be reported on any application he files with the service. He will need to get something from the court saying the charges were dissmissed or dropped. I haven't figured you out, do you work for a immigration lawyer, and your only here to tell people to go meet with one, and you get a cut of the $300 a hours they will make. You really have no idea what you are talking about half the time.
They don't go just by court rulings any more especially when charges are dismissed. They put everyone through a second trial during the interview, or at least they can if they feel like it. You know that very well.
dafortycal
Registered Users (C)
Then don't commit a crime or apply for a benefit, if you can't deal with being asked about the things you have done in your life.
They don't go just by court rulings any more especially when charges are dismissed. They put everyone through a second trial during the interview, or at least they can if they feel like it. You know that very well.
Then don't commit a crime or apply for a benefit, if you can't deal with being asked about the things you have done in your life.
That's great legal advice for everyone with access to a time machine. OP however might be better off researching the consequences of his statements in response to an interrogation centered around his rap sheet before the visa interview.
My God Praxx, are you a idiot? The charges were dismissed. No Charge, no conviction, no problem! but the arrest would have to be reported on any application he files with the service. He will need to get something from the court saying the charges were dissmissed or dropped. I haven't figured you out, do you work for a immigration lawyer, and your only here to tell people to go meet with one, and you get a cut of the $300 a hours they will make. You really have no idea what you are talking about half the time.
Are you saying if the charges were dismissed, there is no problem? I was arrested for possession of marijuana and paraphernalia in Utah and the case was dismissed a year later. However, attorneys are saying that even then this is considered a conviction as far as immigration goes. The DA who counseled me at that time wants to know if it is even possible to get this vacated legally if the case was dismissed..any suggestions?
pleasehelp08
Registered Users (C)
if the case was dismissed after you entered into a diversion program then this case is a conviction for immigration. if the case was just dismissed and you never paid any fines then there is no conviction. You have to disclose the arrest record and get something from court stating that case was dismissed. Thats it! no need to worry......
if the case was dismissed after you entered into a diversion program then this case is a conviction for immigration. if the case was just dismissed and you never paid any fines then there is no conviction. You have to disclose the arrest record and get something from court stating that case was dismissed. Thats it! no need to worry......
Correct me if I am wrong but does he not also have to be made at least vaguely aware of the immigration consequences of submitting to a deal that includes a diversion program before he signs the deal? If the written record shows no such disclosure then no matter what, due to a technicality, CIS is not allowed to use the arrest against him.
LateKnight
Registered Users (C)
Haid 420..They are really interested in the outcome of the arrest. If it was dismissed, there is nothing to vacate. Only worry if there was a fine of $500+ or if you were sentenced to 1 year+ of jail or probation. If you were cought with less than 30 grams of weed u'll be ok, just disclose it and have a CERTIFIED COURT DISPOSITION at interview.
what happend to car1975, I guess he never came back..
what happend to car1975, I guess he never came back..
Haid 420..They are really interested in the outcome of the arrest. If it was dismissed, there is nothing to vacate. Only worry if there was a fine of $500+ or if you were sentenced to 1 year+ of jail or probation. If you were cought with less than 30 grams of weed u'll be ok, just disclose it and have a CERTIFIED COURT DISPOSITION at interview.
what happend to car1975, I guess he never came back..
@LateKnight: I'm 110% sure it wasn't more than 10 grams but the charges were of two counts which makes me inadmissible: Possession of Marijuana and Possession of Paraphernalia..The DA is telling me to get it expunged and that is the only thing I can do but then do I lie in my 485 application and say I've never been arrested? I've been checking the 485 application in details and I think they edited it recently ! Previously they had a question where you had admit whether or not a case has ever been expunged/vacated/set aside but now I can't find it!
Correct me if I am wrong but does he not also have to be made at least vaguely aware of the immigration consequences of submitting to a deal that includes a diversion program before he signs the deal? If the written record shows no such disclosure then no matter what, due to a technicality, CIS is not allowed to use the arrest against him.
forget making me aware, they never asked me ONCE if I was a citizen or a Permanent Resident. I've spoken English since I was young and I don't have much of an accent. The others I was with are also the same. That may be the reason. However, the DA I think is aware that I wasn't at fault but was in the wrong place at the wrong time but now he wants to know if it is even legal to vacate this case. He has asked for the 'state procedural law' to do something like this..
dafortycal
Registered Users (C)
C. Post-conviction Relief
1. Expungement or Vacation.
In the majority of circuits, an alien remains convicted of a removable offense for federal immigration purposes when a state vacated the predicate conviction pursuant to a rehabilitative statute or simply to aid the alien in avoiding adverse immigration consequences and not due to any procedural or substantive defect in the original conviction. Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), rev'd on other grounds, 465 F.3d 263 (6th Cir. 2006); Sanusi v. Gonzales, 474 F.3d 341 F.3d (6th Cir. 2007); Alim v. Gonzales, 446 F.3d 1239 (11th Cir. 2006), Pinho v. Gonzales, 432 F.3d 193 (3rd Cir. 2005); Ramos v. Gonzales, 414 F.3d 800, 805-06 (7th Cir. 2005); Cruz-Garza, 396 F.3d 1125 (10th Cir.2005); Resendiz-Alcaraz v. Ashcroft, 383 F.3d 1262, 1268-71 (11th Cir. 2004); Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir. 2001); Herrera-Inirio v. INS, 208 F.3d 299 (1st Cir. 2000). For example, in Matter of Adamiak, 23 I. & N. Dec. 878 (BIA 2006), where the state court vacated a conviction for failure of the trial court to advise the alien defendant of the possible immigration consequences of a guilty plea, there was no longer a conviction for immigration purposes.
In contrast to the majority of circuits, the Fifth Circuit holds that a criminal conviction vacated for any purpose remains a conviction for immigration purposes. Garcia-Maldonado v. Gonzales, _ F.3d _, 2007 WL 1865562 (5th Cir. 2007); Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002).
In Saleh v. Gonzales, _ F.3d _ , 2007 WL 2033497 (2nd Cir. 2007), where the state court nunc pro tunc amended Saleh's 1993 conviction for receiving stolen property (for which a sentence of one year or longer could have been imposed) to petty theft "solely for the purpose of circumventing the immigration laws of the United States," and not based on any showing of innocence or any defect (substantive or procedural) in the underlying criminal proceedings, the court held that Saleh remained convicted of receiving stolen property for immigration purposes.
1. Expungement or Vacation.
In the majority of circuits, an alien remains convicted of a removable offense for federal immigration purposes when a state vacated the predicate conviction pursuant to a rehabilitative statute or simply to aid the alien in avoiding adverse immigration consequences and not due to any procedural or substantive defect in the original conviction. Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), rev'd on other grounds, 465 F.3d 263 (6th Cir. 2006); Sanusi v. Gonzales, 474 F.3d 341 F.3d (6th Cir. 2007); Alim v. Gonzales, 446 F.3d 1239 (11th Cir. 2006), Pinho v. Gonzales, 432 F.3d 193 (3rd Cir. 2005); Ramos v. Gonzales, 414 F.3d 800, 805-06 (7th Cir. 2005); Cruz-Garza, 396 F.3d 1125 (10th Cir.2005); Resendiz-Alcaraz v. Ashcroft, 383 F.3d 1262, 1268-71 (11th Cir. 2004); Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir. 2001); Herrera-Inirio v. INS, 208 F.3d 299 (1st Cir. 2000). For example, in Matter of Adamiak, 23 I. & N. Dec. 878 (BIA 2006), where the state court vacated a conviction for failure of the trial court to advise the alien defendant of the possible immigration consequences of a guilty plea, there was no longer a conviction for immigration purposes.
In contrast to the majority of circuits, the Fifth Circuit holds that a criminal conviction vacated for any purpose remains a conviction for immigration purposes. Garcia-Maldonado v. Gonzales, _ F.3d _, 2007 WL 1865562 (5th Cir. 2007); Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002).
In Saleh v. Gonzales, _ F.3d _ , 2007 WL 2033497 (2nd Cir. 2007), where the state court nunc pro tunc amended Saleh's 1993 conviction for receiving stolen property (for which a sentence of one year or longer could have been imposed) to petty theft "solely for the purpose of circumventing the immigration laws of the United States," and not based on any showing of innocence or any defect (substantive or procedural) in the underlying criminal proceedings, the court held that Saleh remained convicted of receiving stolen property for immigration purposes.
forget making me aware, they never asked me ONCE if I was a citizen or a Permanent Resident. I've spoken English since I was young and I don't have much of an accent. The others I was with are also the same. That may be the reason. However, the DA I think is aware that I wasn't at fault but was in the wrong place at the wrong time but now he wants to know if it is even legal to vacate this case. He has asked for the 'state procedural law' to do something like this..
There's two points to consider here. One which works in your favor is that you did not sign anything that said you understood the immigration consequences of any kind of a plea bargain without a full judge or jury trial. So if this is true then -for immigration purposes- your conviction might be null and void and not allowed to be considered.
Secondly, working against you is their policy that CIS does not need a conviction when it comes to narcotics posession and trafficking of anything other than a single incident of an ounce of marijuana. Which means you still have to list your arrest even if your court records have been vacated. If you don't list your arrest and it shows up on their background check then they will investigate it and...problems. I am not sure about the second part but it might be relevent to your strategy in tackling this situation.
C. Post-conviction Relief
1. Expungement or Vacation.
In the majority of circuits, an alien remains convicted of a removable offense for federal immigration purposes when a state vacated the predicate conviction pursuant to a rehabilitative statute or simply to aid the alien in avoiding adverse immigration consequences and not due to any procedural or substantive defect in the original conviction. Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), rev'd on other grounds, 465 F.3d 263 (6th Cir. 2006); Sanusi v. Gonzales, 474 F.3d 341 F.3d (6th Cir. 2007); Alim v. Gonzales, 446 F.3d 1239 (11th Cir. 2006), Pinho v. Gonzales, 432 F.3d 193 (3rd Cir. 2005); Ramos v. Gonzales, 414 F.3d 800, 805-06 (7th Cir. 2005); Cruz-Garza, 396 F.3d 1125 (10th Cir.2005); Resendiz-Alcaraz v. Ashcroft, 383 F.3d 1262, 1268-71 (11th Cir. 2004); Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir. 2001); Herrera-Inirio v. INS, 208 F.3d 299 (1st Cir. 2000). For example, in Matter of Adamiak, 23 I. & N. Dec. 878 (BIA 2006), where the state court vacated a conviction for failure of the trial court to advise the alien defendant of the possible immigration consequences of a guilty plea, there was no longer a conviction for immigration purposes.
In contrast to the majority of circuits, the Fifth Circuit holds that a criminal conviction vacated for any purpose remains a conviction for immigration purposes. Garcia-Maldonado v. Gonzales, _ F.3d _, 2007 WL 1865562 (5th Cir. 2007); Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002).
In Saleh v. Gonzales, _ F.3d _ , 2007 WL 2033497 (2nd Cir. 2007), where the state court nunc pro tunc amended Saleh's 1993 conviction for receiving stolen property (for which a sentence of one year or longer could have been imposed) to petty theft "solely for the purpose of circumventing the immigration laws of the United States," and not based on any showing of innocence or any defect (substantive or procedural) in the underlying criminal proceedings, the court held that Saleh remained convicted of receiving stolen property for immigration purposes.
Thanks: but what does this mean in simple words? Can you please explain?
Thanks. So if the plea it is vacated based on ineffective counsel, I'll be ok? What is the procedure though? my case was dismissed..
There's two points to consider here. One which works in your favor is that you did not sign anything that said you understood the immigration consequences of any kind of a plea bargain without a full judge or jury trial. So if this is true then -for immigration purposes- your conviction might be null and void and not allowed to be considered.
Secondly, working against you is their policy that CIS does not need a conviction when it comes to narcotics posession and trafficking of anything other than a single incident of an ounce of marijuana. Which means you still have to list your arrest even if your court records have been vacated. If you don't list your arrest and it shows up on their background check then they will investigate it and...problems. I am not sure about the second part but it might be relevent to your strategy in tackling this situation.
pleasehelp08
Registered Users (C)
If your Defence Attorney knew you were innocent and still did not help you, and now asking you the procedure to file for manifest injustice then I don't think he knows what he is doing. Lawyers should know all this. if not he can go to court / library and do the research. thats what they are paid for.
if you have only once incident then you should be fine.
if you have only once incident then you should be fine.
I did not have a lawyer. I waived my rights to one and did whatever the DA said. I recently hired a lawyer.
If your Defence Attorney knew you were innocent and still did not help you, and now asking you the procedure to file for manifest injustice then I don't think he knows what he is doing. Lawyers should know all this. if not he can go to court / library and do the research. thats what they are paid for.
if you have only once incident then you should be fine.
pleasehelp08
Registered Users (C)
DA knowingly withheld the evidence that could prove your innocence to prosecute you. Some DA's do that. All they care about is number of case prosecuted successfully. I think you can fine for manifest injustice.
DA knowingly withheld the evidence that could prove your innocence to prosecute you. Some DA's do that. All they care about is number of case prosecuted successfully. I think you can fine for manifest injustice.
can you PLEASE give me a link which shows the state procedure to do this in Utah?