Criminal Conviction and Deportation.

M

mncase413

New Member
Hi,

A friend of mine was recently charged with domestic assault. He hired a criminal attorney who is working on making the self-defense case for him. The witness/complainant in his case wishes to drop the case, but it is apparently upto the state now. He would like to know what outcome will be acceptable to avoid deportation:

1. Dismissal of the case
2. Acquittal upon trial

3. Continuance to dismissal with counseling/anger management
4. Plea bargain charges down to Petty Misdemenor
5. Plea bargain charges down to Disorderly conduct

Outcome 1 and 2 cannot be any problems for sure...

Are any of the other options viable to not be deported/inadmissible/ineligible for citizenship?
He has been in US for 10.5 years and has been a LPR for 2.5 years. He has no priors (charges/arrests/convictions).

Thank you for helping.
 
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3, 4 or 5 will not deport you either.
Also, USCIS will learn of whatever acquittal/conviction only when you apply for citizenship, if you do. I do not think LPRs are fingerprinted upon reentry after overseas travel. (are they, anyone?)
 
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Some research on the web indicates the following:

GROUNDS FOR DEPORTATION [apply to
lawfully admitted noncitizens, such as a lawful
permanent resident [LPR] – greencard holder]

Domestic Violence conviction or other domestic
offenses, including:
- Crime of domestic violence
- Stalking
- Child abuse, neglect or abandonment
- Violation of order of protection (criminal or civil)

Conviction Defined:

“A formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where:
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted
sufficient facts to warrant a finding of guilt, AND
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.”
THUS:
◆ A drug treatment or domestic violence counseling alternative to incarceration disposition could be considered a conviction for
immigration purposes if a guilty plea is taken (even if the guilty plea is or might later be vacated)
◆ A deferred adjudication disposition without a guilty plea (e.g., NY ACD) will not be considered a conviction
◆ A youthful offender adjudication will not be considered a conviction if analogous to a federal juvenile delinquency disposition
(e.g., NY YO)

Source: NYSDA

Based on this, #3, 4, and 5 might also subject the accused to potential deportation. Also based on the information in the link, #3, 4, and 5 might make the accused admissible as this was his first charge (petty offence exception). I cannot believe there is so little factual information on this subject...
 
There is not enough steam in those convictions listed by him to make him either inadmissible or deportable.

Whether the conviction shows up in a biometric scan was a separate speculation in itself.

There is enough factual info on the subject. See threads relating to Case transferred to local office in I-485 issues at California, for example.
 
JoeF,

Isn't it better not to sound off w/o knowing what the max sentence for those offences are? In case you are still wondering, they are not.
 
I was arrested. I know. Search for my very public posts.

I do not expect to be advising the guy... I have enough sense to let a lawyer do that... I object to people who have never been there scaring the guy.
 
The max. in this case would be be <90 days. But looking at his history, I doubt that the accused would get any jail time at all. This would obviously not a concern if the assaulted party were not a spouse. This is a domestic assault case and these are viewed differently, aren't they?

Here is a text from INA 237

(E) 6/ Crimes of Domestic violence, stalking, or violation of protection order, crimes against children and.-

(i) Domestic violence, stalking, and child abuse.-Any alien who at any time after entry is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable. For purposes of this clause, the term "crime of domestic violence" means any crime of violence (as defined in section 16 of title 18, United States Code) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual's acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.
 
mncase,

The distinction that one needs to make is this: a charge is not a conviction.

It matters little what the charge is (assault, murder, DUI etc... ), only the conviction. USCIS goes by " plea and penalty". What was the plea: guilty (or no contest) or not guilty, and what was the penalty. In the case of a trial by jury or court trial, there is no concept of plea... only of verdict or ruling.

However, once the plea / verdict is determined (or bargained) there is only a very narrow range of possibilities depending on:
(a) maximum sentence
(b) sentencing guidelines (takes into account prior convictions etc)

For the scenarios you have outlined (where the charge has already been bargained down to the misdemenors you have listed), there are no possiblities that will cause deportation or removal proceedings: the original charges are immaterial... the plea/verdict on the negotiated charge IS everything; and none of those scenarios will come close to the USCIS requirement of (1) max sentence >= 365 days AND (2) actual sentence >=180 days.

However, if the conviction were NOT the scenarios you have outlined, (conviction for assault with a deadly weapon, for example) the possibility of crossing that threshold becomes very real... as max sentence and awarded sentence begin to get harsher. Max penalities can be looked up on state penal code websites for various infractions, misdemeanors and felonies. Has nothing to do with any other "jurisdiction" other than the state penal code. (or for Federal crimes like forgery, mail fraud, felony prevention of access to 911 or stealing cable TV :) , the relevant federal statutes )

A lawyer is being consulted, of course, as you explained right in the beginning... I am assuming you wanted to know if removal proceedings were likely based on the scenarios you have outlined. Despite any wistfull(?) thinking to the contrary, that is not likely to happen at all.
 
For all we know at this point, the crime could even be an Aggravated Felony. I do not see any citation to the actual law that is alleged to have been violated. "assault", whether domestic or not can cover a wide range and can carry severe sentences in some cases (I had a client convicted of assault that carried a 4 year prison term). We simply do not know what the charges are and without this it is impossible to evaluate the likely immigration consequences. BTW, the LPR that I represented with the assault charge, he was picked up at the border when he reentered and since he was an arriving alien he was subject to mandatory detention. He is a Dentist and is still detained pending the outcome of his removal hearing.

Speak to a qualified immigration attorney any time you are charged with a crime if you are not a USC.
 
Jim,

This particular case is discussing scenarios where the charges are plea bargained down to Disturbing the Peace (Section 415.1 ?? I forget) already, is it not? Why would one not know the charges then? Just curious as to if I'm missing something.
 
Question for Jim Mills, Joef and Niladri.
Sorry to divert from the original topic. But I have had an incident 2 days ago as well and I would like to know if that could lead to any immigration problems in any way. Here is my story :

I have got my 485 approval last week and am going for stamping next week. I had a major argument with my wife this weekend and we were on the verge of divorce. Yesterday, my wife decided to leave me and go to her friend's place. I had some immigration related documents at work (like passport etc) and she went to the local police station complaining about that. She told the cops a false story that I threatened her and other stuff. She gave them my work number and I got a call from the Officer.

I immediately clarified to the officer and also told him that my wife is welcome to have those documents anytime. I had just taken them to make some copies. He told me if I could drop them off in local police station. I said YES I could. So in 15 minutes I went to the police station and dropped them to my wife.

Then there were some more docs needed by my wife so I requested the officer to come to our apartment and then I will give those docs to her in his presence. The officer was just wanting to make sure that the document's were handed over to my wife. I told the officer about the things my wife does. She takes advantage of being a woman and always threatens to call cops on me if we have any sort of argument which does not go her way. I have been facing this harassment for 3 yrs. I told him that I felt more comfortable with him being there so there is proof. I did not get arrested or recieve any warning at all.

He said that all remaing property split can be discussed in court with our respective attorneys. Then I left back to work after shaking the officer's hand. My wife also went to her friend's home.

Now we have patched up and she is back. Could this affect my background history in any way. Is this considered any type of criminal offense. My wife says that she did not file any sort of written complaint at all. She said everything discussed with the officer was just verbal and she just wanted her documents back. She had told the police that we had a fight and she is leaving. The officer asked her if there was any physical/verbal assault and she said NO there was not. (Although I am not sure if i can totally believe her on this )

I have a trip coming up to India and want to be sure that they will not deport me. I am really worried. Is there a way to verify that my record is clean even though I never got arrested at all.

Gurus: Please help me on this.

Thanks in advance !!
 
What about Traffic Violation(s)

Does any traffice violation cause any immigration consequences? What if someone ran through a red light? I apologize if this question dilutes the main topic within this thread.
 
JoeF said:
Things like DUI and DWI or reckless driving may have consequences. Simple speeding (as long as it is not so much that it becomes reckless driving) and the like don't. I think running a red light falls in the latter category.
Click to expand...

There is no clear defnition of reckless driving. At least
some cops write down "reckless driving" a lot even
for ordinary traffic violations.

I have another question. If such things occurred
before you getting a GC and you presented
them on your I485 forms and still
got thru. That does mean such things
would not matter anymore because
if the INS did not refuse yoru GC because
of these certainly they woudl not
then taken your GC away after giving it to you.

Another thing is: INS may become tougher after
9-11. So one thing that did not matter before 9-11
may matter now.
 
All you want to do is truthfully check the box about having been arrested as a YES or a NO. Should be fairly easy to figure out if you were.
 
LikeGolfing said:
Does any traffice violation cause any immigration consequences? What if someone ran through a red light? I apologize if this question dilutes the main topic within this thread.
Click to expand...

If you got a ticket for the violation, and paid it, then there is nothing to worry about.

If you did something excessive (speeding over 100mph for example), and got arrested, then you would have to disclose that as an arrest, but it still might not be a problem - it depends on conviction and maximum possible sentence.

I got a speeding ticket (21 miles an hour over the speed limit) and ran a red light (caught by a camera) in 2000 and it did not affect my GC approval at all. I was not arrested for either violation; I was simply issued tickets, which I paid. They were the first (and last) tickets I have had - they were expensive!
 
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