Domestic Violence --> Need some advise

IneedAdvise

Registered Users (C)
#1
Hi

I was arrested for Domestic Violence on my spouse (Virginia Code § 18.2-57.2 - Assault and battery against a family or household member). I went through court trial on 3rd Jan 2011. Judge differed disposition of my case and told me that I need to go through anger management for 10-24 weeks with six months of probation and on 3rd Jan 2013 my case will be dismissed and subsequently expunged. The only condition is I need to complete Anger Management classes, observe good behaviour and not to fall in any other trouble during next two years.

I am working in USA on h1b visa. I have my GC I140 clear and currently awaiting priority date to be current to file I485. It is most likely going to happen in 2014 not before that as I am under EB3 category.

I have 1st H1b extension of 3 years approved and stamped until 1st Sep 2013. So I have sufficient time to get my case expunged before I file for another H1b extension by April or May 2013.

Actually after I got arrested in Oct 2010, I visited India in November 2010, applied for H1b Visa stamping, got it stamped. Consular officer did ask me about my arrest, asked me to submit detail police report etc. They issued me visa after checking everything and also on the Port of Entry at New York, they checked the same documents and permitted me entry in the USA.

Now my question is:

While I am on probation, taking anger management classes and case is pending for next two years

1. Can I change job (if new employer is willing to transfer my h1b and willing to file GC application for me)? What will be the implication in this case due to my arrest and subsequent outcome of differed disposition?
2. Can I go out of country (USA) to visit Europe on business trips or India for family visit while my case is pending?
3. Will it impact my GC processing? I mean when I am going to file my I-148, by then my case would be dismissed and expunged, will it still cause me trouble?
4. Can I be subjected to deportation or inadmissible in USA because of this outcome of DV?

I checked multiple blogs and many immigration court outcomes where they clearly stated that "(Virginia Code § 18.2-57.2 - Assault and battery against a family or household member)" is not a criminal offense and not a CIMT and hence cannot be considered for deportation or inadmissible condition of ICE. There are at least 9-10 cases (official outcome) by immigration court and supreme court of virginia ruling in favour of defendent.

Please advise and your help on this is much appreciable.

Thanks
 

BigJoe5

Registered Users (C)
#2
It looks like you are being treated under this section. This section cannot be expunged and an expungement doesn't matter in Immigration Proceedings anyway. Successful participation will not result in a deportable conviction. Take full advantage of the opportunity to ease tensions. Good luck.

§ 18.2-57.3. Persons charged with first offense of assault and battery against a family or household member may be placed on local community-based probation; conditions; education and treatment programs; costs and fees; violations; discharge.

A. When a person is charged with a violation of § 18.2-57.2, the court may defer the proceedings against such person, without a finding of guilt, and place him on probation under the terms of this section.

B. For a person to be eligible for such deferral, the court shall find that (i) the person was an adult at the time of the commission of the offense, (ii) the person has not previously been convicted of any offense under this article or under any statute of the United States or of any state or any ordinance of any local government relating to assault and battery against a family or household member, (iii) the person has not previously had a proceeding against him for violation of such an offense dismissed as provided in this section, (iv) the person pleads guilty to, or enters a plea of not guilty or nolo contendere and the court finds the evidence is sufficient to find the person guilty of, a violation of § 18.2-57.2, and (v) the person consents to such deferral.

C. The court may (i) where a local community-based probation services agency established pursuant to Article 9 (§ 9.1-173 et seq.) of Chapter 1 of Title 9.1 is available, order that the eligible person be placed with such agency and require, as a condition of local community-based probation, the person to successfully complete all treatment, education programs or services, or any combination thereof indicated by an assessment or evaluation obtained by the local community-based probation services agency if such assessment, treatment or education services are available; or (ii) require successful completion of treatment, education programs or services, or any combination thereof, such as, in the opinion of the court, may be best suited to the needs of the person.

D. The court shall require the person entering such education or treatment program or services under the provisions of this section to pay all or part of the costs of the program or services, including the costs of any assessment, evaluation, testing, education and treatment, based upon the person's ability to pay. Such programs or services shall offer a sliding-scale fee structure or other mechanism to assist participants who are unable to pay the full costs of the required programs or services.

The court shall order the person to be of good behavior for a total period of not less than two years following the deferral of proceedings, including the period of supervised probation, if available.

The court shall, unless done at arrest, order the person to report to the original arresting law-enforcement agency to submit to fingerprinting.

E. Upon fulfillment of the terms and conditions specified in the court order, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without adjudication of guilt and is a conviction only for the purposes of applying this section in subsequent proceedings. No charges dismissed pursuant to this section shall be eligible for expungement under § 19.2-392.2.

F. Upon violation of a term or condition of supervised probation or of the period of good behavior, the court may enter an adjudication of guilt and proceed as otherwise provided by law.

G. Notwithstanding any other provision of this section, whenever a court places a person on probation upon terms and conditions pursuant to this section, such action shall be treated as a conviction for purposes of § 18.2-308.

(1999, c. 963; 2000, c. 1040; 2003, cc. 33, 38; 2004, c. 377; 2007, c. 133; 2009, cc. 313, 347.)
 

IneedAdvise

Registered Users (C)
#3
Thanks BigJoe5 for prompt response

Can you also let me know is it possible for me to leave USA and reEnter USA during these two years? is it advisable for me to change job in these two years?
 

BigJoe5

Registered Users (C)
#4
Thanks BigJoe5 for prompt response

Can you also let me know is it possible for me to leave USA and reEnter USA during these two years? is it advisable for me to change job in these two years?
What are you worried about? You already travelled and returned after this happened.

IF you screw up and get a warrant issued against you, DHS will know when you come in contact with them as that information is widely available to all law enforcement.

A minor traffic stop is the most common way a person is caught on an outstanding warrant...
 

IneedAdvise

Registered Users (C)
#5
What are you worried about? You already travelled and returned after this happened.

IF you screw up and get a warrant issued against you, DHS will know when you come in contact with them as that information is widely available to all law enforcement.

A minor traffic stop is the most common way a person is caught on an outstanding warrant...
Ok. When I went outside USA in November 2010, my case was pending trial so at least DHS had reason to allow me in USA to go through trial. Now that trial is over and my case is differed, would it be ok to travel outside US and reenter? I know at POE I will go through secondary inspection to check whether I am eligible for admission to USA or not?

Also, as my case cannot be expunged off, will this remain in my background check forever or it will get erased off automatically after seven years?

Thanks
 

BigJoe5

Registered Users (C)
#6
Ok. When I went outside USA in November 2010, my case was pending trial so at least DHS had reason to allow me in USA to go through trial. Now that trial is over and my case is differed, would it be ok to travel outside US and reenter? I know at POE I will go through secondary inspection to check whether I am eligible for admission to USA or not?

Also, as my case cannot be expunged off, will this remain in my background check forever or it will get erased off automatically after seven years?

Thanks
DHS waits for CONCLUSION of a case nowadays. They will not interfere with your continued compliance with the terms of your "probation and treatment/classes" . It will remain in your history. At the conclusion of your case, it may end up in a dismissal rather than a conviction from the criminal court's perspective but it will remain a "conviction" for immigration purposes. Always disclose everything to immigration authorities even if a judge tells you that you don't have to. This conviction will not be deportable if you don't make things worse with further violation(s) and/or poor compliance.

Read up on the details: http://www.nycbar.org/pdf/report/Immigration.pdf

A small excerpt:

"The criminal grounds triggering deportation, detention, and other negative immigration consequences have greatly expanded over the years through amendments to immigration law as well as case law interpretation. The extent of these negative immigration consequences often turns on whether the criminal disposition falls within certain immigration law categories including, but not limited to, “aggravated felonies,” “crimes involving moral turpitude,” “controlled substance offenses,” and other categories. The scope of these categories is not necessarily intuitive—an “aggravated felony” in immigration law, for example, has been interpreted to cover offenses that are neither aggravated nor felonies. Similarly, dispositions that are not convictions under state law—such as a deferred adjudication program that results in the dismissal of all charges—may be considered “convictions” under immigration law and thus may trigger many of the categories described above that lead to deportation."
 

IneedAdvise

Registered Users (C)
#7
Thanks BigJoe5. You are very helpful. I really appreciate.

So I understand I might not get deported and differed disposition in my case will not lead me to become inadmissible in USA even after my case will get dismissed after two years.

So once my priority date become current, I can apply for I-485 (of course I will mentioned about my arrest and include all required documents about arrest and court's dismissal order). Will my case have any issues with getting I-485 approved?

I am filed under EB3 category, my employer might try to change my status from EB3 to EB2 in coming months. So I also need to mentioned about my arrest with this application as well?

it is unfortunate for me that I cannot expunge this kind of charges and it will remain on my record forever. I think this will adversely affect me finding new job because on my criminal background check this will pop up.

Thanks
 

BigJoe5

Registered Users (C)
#8
I really don't know what it takes to change from EB-3 to EB-2 but if it through DOL/PERM, they don't care about the beneficiary's criminal record, they only care about employment qualifications.

At the I-140 stage it also makes no difference as that does not provide an immigration benefit, only a "classification" under which you eventually apply for the immigration benefit.

Adjustment of status is the same as being found admissible for entry as an immigrant at a POE. Same legal grounds apply under normal circumstances. Read up on it at 8 CFR 245 at: http://ecfr.gpoaccess.gov/cgi/t/tex...a&tpl=/ecfrbrowse/Title08/8cfr245_main_02.tpl
 

IneedAdvise

Registered Users (C)
#9
Inadmissibility Criteria

Hi
Can anyone tell me whether I am inadmissible because of deferred adjudication sentence (virginia domestic violence class A misdemeanor)? I have completed the anger management classes and I am no longer under probation ( I was under unsupervised probation for 6 months). I have been told by my probation officer that I dont need to see her and as soon as I complete the anger management classes my probation will be lifted automatically.

I have to leave USA for business trip purpose for two weeks next month. So If I am inadmissible to enter USA then I will inform my employer and postpone my trip.

my case will be dismissed on Jan 3 2013.
 

BigJoe5

Registered Users (C)
#10
Hi
Can anyone tell me whether I am inadmissible because of deferred adjudication sentence (virginia domestic violence class A misdemeanor)? I have completed the anger management classes and I am no longer under probation ( I was under unsupervised probation for 6 months). I have been told by my probation officer that I dont need to see her and as soon as I complete the anger management classes my probation will be lifted automatically.

I have to leave USA for business trip purpose for two weeks next month. So If I am inadmissible to enter USA then I will inform my employer and postpone my trip.

my case will be dismissed on Jan 3 2013.
Deferred adjudication with probation is generally treated as a conviction for immigration law purposes. The analysis that your lawyer needs to do is to compare the applicable immigration inadmissibility grounds to the actual charge for which the judge placed you on probation and determine the maximum sentence possible versus the actual sentence (you don't have a real issue on that last "actual sentence" part because you got 6 months probation).

Your lawyer should start with a straight categorical analysis and probably proceed to the modified categorical approach under Taylor (a U.S. Supreme Court test).

Domestic Violence cases often involve restraining orders and ANY violation of such an order is deportable.

You can probably get a better price for legal services if you know what to ask for.
 

IneedAdvise

Registered Users (C)
#11
Inadmissibility Criteria

Thanks Joe for your prompt response.

I didn't had restraining order issued on me. I was taken to police station and I got released within one hour without spending even 10 minutes in the Jail. Since there wasn't any restraining order I don't think I broke any rules that make me deportable on that grounds.

I didn't not receive court document that specifies injury that I caused to my wife. I got warrant docket back which says I pleaded not guilty, however facts are sufficient to find guilt and hence deferred adjudication considering my first arrest ( I don't even have any traffic violation).

I do have detailed police report and even that doesn't state anything on bodily injuries (as I didn't cause any) and says since I touched my wife unlawfully and hence arrest.

Do I have to obtain any documents from local county court that describes why deferred adjudication sentence given to me?

I hope considering this facts and virginia statute 18.2-57.2 does not states that this charge is only applicable in case of bodily injuries, and maximum possible punishment could be 12 months or lesser my charges would be not be considered CIMT.

Any thoughts?

I have taken appointment with the immigration attorney who is specialized in criminal immigration cases and will ask them to evaluate me under Taylor system. I have downloaded documents on Taylor system.

If I get proceedings for removability or inadmissibility i would consider my bad luck!!!
 

IneedAdvise

Registered Users (C)
#13
BigJoe Please respond

Hi BigJoe

You have good knowledge on INS (USCIS) on the immigration rules and law.

Please provide me some insight based on your knowledge. I will greatly appreciate

At present I have given papers to immigration attorney to carry out analysis based on Taylor Vs. Supreme Court (1990) categorical and modified categorical approach. While he is researching and analyzing my case I am feeling he is less experienced but he is trying

I have following questions

1. I have travel coming up to Asia on business trip. So If I leave country and come back to USA since my sentencing was deferred adjudication, informal (unsupervised) probation is lifted, and my case will be dismissed in Jan 2013, if Immigration officer unable to determine whether I am inadmissible or not, will he/she detain me? or deport me? or confine me in prison? or being proceedings against me in the immigration court?

2. I do have some cases whether supreme court has ruled out that Virginia class 1 Misdemeanor 18.2-57.2 is crime of violence and thus non-CIMT, so if I carry these cases and letter from attorney will it help me go through immigration channel and will Port officer let me in USA?

3. If Port officer determines that i am inadmissible I will be deported back?

Please BigJoe if you have any inputs or if you have came across similar case please respond.

Thanks in advance

-IneedAdvise
 

BigJoe5

Registered Users (C)
#14
You have a heavy conscience, so you can't be all that bad.......

If you have not re-offended, this issue will not bar re-entry if the visa is in good order otherwise.
 

IneedAdvise

Registered Users (C)
#15
Thanks BigJoe5

Hi BigJoe5

Thanks for your prompt response.

I have valid H1b visa which is valid up to Sep 2013.

I have been trying to match myself against modified categorical approach to see whether my crime (unlawfully touching my wife against her will) will be considered crime of violence or not and thus CIMT. So far I am not getting direct answer on the same so does my attorney. I didn't plead guilty. However Cop produced some photographs to judge during my trial which sawed my finger marks on her hand. I don't know whether it will considered as causing injury or not? and thus CIMT

My charging document does not state anything about injury. I don't know whether local county court will retain photographs produced by cops as evidence of charging me and can make it available to immigration judge (court) should I subject to immigration court for deportation or not?
Photograph is the only evidence that went against me. Even Police report doesnt state anything about injury. So If immigration court constitutes photograph as causing injury to my wife by me then its my bad luck. I didnt had any intention of hitting my wife or causing her injury. I just held her to stop fight. I cant go back to time and correct myself.

So I dont know whether my charge will be considered a crime of violence or CIMT or not?

Thanks
 

IneedAdvise

Registered Users (C)
#16
Analysis on My case by Criminal Immigration Attorney (BigJoe5 please review it and comment)

Hi

Immigration Criminal Attorney carefully reviewed by documents keeping in mind Taylor's analysis (categorical and modified categorical analysis)

Here is his expert opinion

Since I didn't plead guilty, adjudication of guilt is withheld without me admitting any facts to find guilt, and Juvenile domestic relation county court is court of no records, my deferred adjudication will not be considered conviction from a immigration perspective. Based on categorical analysis (Taylor system) my virginia statute 18.2-57.2 (domestic violence battery and assault on a spouse or a family member) is not considered crime of violence or CIMT and hence it is not deportable or inadmissible. I will have to make sure that I do not fall in any other trouble in future and also make sure my case gets dismissed in Jan 2013. So it wouldn't cause any issues with my future immigration processes. It will be difficult to go through ordeal again and again but I am prepared for the same.

However my police report states "apparent minor injury" that could raise doubt to immigration officer (USCIS) or Immigration Judge if they apply modified categorical approach based on Taylor analysis (this is worst case scenario) in that case they (USCIS or Immigration court or BIA) could argue my charge could be considered CIMT since mentioned of injury (matter of sejas). In that case my attorney told me that we need to produce some witnesses and evidences and we should be able to defend it. If I loose case its my bad luck. However according to my attorney it is very remote possibility that I would be referred for removability proceedings if I don't fall into any more trouble and if my pending charges gets dismissed in Jan 03 2013.

My attorney told me that I can travel internationally (as my unsupervised-- informal probation is revoked after I completed 24 anger management classes) and I should not have any issues re-enter USA. He has given me letter to carry with me and just in case if Port Officer questions me on my arrest or charges then I can produce letter. He thinks it wouldn't be that bad at port of entry for me.

BigJoe 5: do you think my attorney's analysis is accurate and up to the point or it misses some other factual(s)? Please respond with your expert opinion. Also thanks for giving me guidance and very candid opinion so far. You were of great help to me and others. Please continue your good work and I am sure many would benefit from it.
 

BigJoe5

Registered Users (C)
#17
http://www.fd.org/pdf_lib/osberg update.pdf

In addition to the above resource, google for "immigration consequences of criminal..." the last word is variable: activity, conviction, arrest or other possible combinations. Many lawyers and associations (like public defenders, ACLU, AILA, etc...), or even immigration judges or DOJ and OIL staff have written essays and produced charts about what crimes and punishments are capable f being used to remove someone.

Steer clear of trouble and good luck.
 
#18
Domestic Battery & GC processing (currently on H1B Visa)

Hi "IneedAdvise" / BigJoeF,

Do you by chance have any update on your case? I have a very similar situation and am having sleepless nights for the last few weeks. Any knowledgable people here, please see if you can help me. Thanks.

I was arrested on 06/18 for Domestic Battery, 1ST (M) at Nevada. It was an argument which turned into a very minor fight in our car, at a Traffic light. The person on the car next to our car reported this to police. Both of us said we do not have any issues, but the Police arrested me based on the witness report. We do not absolutely have any issues even now and that was the first fight we ever had in our 4 years of married life.

We have already hired the best Criminal Defense lawyer in NV and my court date is on July 9th 2012.

I am currently on H1B visa (valid until 2015) and have been on H1B visa from Nov 2004.

GC Status:
EB3: - Priority Date - June 2006; Labor Approved, I-140 Approved, Applied for I-485 in 2007, FingerPrinting is completed.

EB2: - Porting from EB3 (In Progress). Labor Approved, I-140 preparation phase


We are really hoping that we can avoid conviction in my case, so that the deportation / inadmissibility can be avoided.

The next step is to avoid issues during EB2 I485 processing. My PD of June 2006 for EB2 is expected to be current in October 2012. Can reducing the charge from Domestic Battery to Simple Battery avoid issues in I485 processing? Is there some other way we can avoid issues with GC processing?

I had 20 minutes consultation with Murthy's criminal immigration attorney but didn't turn out to be very beneficial. Who will be the best Immigration attorney to work with?

Thanks again!
 

BigJoe5

Registered Users (C)
#19
Hi "IneedAdvise" / BigJoeF,

Do you by chance have any update on your case? I have a very similar situation and am having sleepless nights for the last few weeks. Any knowledgable people here, please see if you can help me. Thanks.

I was arrested on 06/18 for Domestic Battery, 1ST (M) at Nevada. It was an argument which turned into a very minor fight in our car, at a Traffic light. The person on the car next to our car reported this to police. Both of us said we do not have any issues, but the Police arrested me based on the witness report. We do not absolutely have any issues even now and that was the first fight we ever had in our 4 years of married life.

We have already hired the best Criminal Defense lawyer in NV and my court date is on July 9th 2012.

I am currently on H1B visa (valid until 2015) and have been on H1B visa from Nov 2004.

GC Status:
EB3: - Priority Date - June 2006; Labor Approved, I-140 Approved, Applied for I-485 in 2007, FingerPrinting is completed.

EB2: - Porting from EB3 (In Progress). Labor Approved, I-140 preparation phase


We are really hoping that we can avoid conviction in my case, so that the deportation / inadmissibility can be avoided.

The next step is to avoid issues during EB2 I485 processing. My PD of June 2006 for EB2 is expected to be current in October 2012. Can reducing the charge from Domestic Battery to Simple Battery avoid issues in I485 processing? Is there some other way we can avoid issues with GC processing?

I had 20 minutes consultation with Murthy's criminal immigration attorney but didn't turn out to be very beneficial. Who will be the best Immigration attorney to work with?

Thanks again!
IF it was so minor (as claimed) and neither of you is willing to press charges against each other, it is likely to be thrown out by the Judge if it is not thrown out by the D.A.
 
#20
IF it was so minor (as claimed) and neither of you is willing to press charges against each other, it is likely to be thrown out by the Judge if it is not thrown out by the D.A.
Thanks BigJoe for the reply! We too are hoping that the charge will be thrown out, but this court seems to be very strict abt Domestic Battery. We are trying to get prepared for the bad scenario of that not happening.

What will be the next few best things if this is not thrown out? Like reducing the charge to "disorderly conduct" or anything else will avoid Green Card processing / Visa issues? Woul you please advise? Thanks.
 
Top