Domestic Violence --> Need some advise

[IneedAdvise]

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.

Hello Winterfresh

My Domestic Violence charges were turned into Probation period for 2 years with 24 anger management classes. My case will be dismissed on 3rd Jan 2013.

After my anger management classes completed and probation was lifted, I have been out of USA twice on business trips and re-enter USA with no issues. I was been sent to second level of inspection at the port of entry in New York but immigration officers at port didnt cause any issues. They told me last time that if I get arrested next time my visa will be cancelled. I think I will have to pass through second round of inspection everytime until my case is dismissed eventually on 3rd Jan 2013.

While my case was pending, I did got my H1b visa stamped by US consulate. However I havent applied for h1b renewal which I will be applying next year and My GC processing is also going on. I have immigration attorney review on my case and they said it wont be an issue for me during GC processing however I will have to pass through interview process and also my immigration attorney has to keep submitting my arrest and ongoing progress documents to USCIS so it will be hassle.

I hope this helps!

 

[jaypoor]

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.

Hi Winterfresh,

I am so sorry to hear it. I don't think court would want to prosecute you guys based on just 1 witness when you guys are not willing go against each other.

Many times, lawyers/DA would want you to take reduced charges to windup the case quickly but you shouldn't accept that. Insist on clean dismissal and nothing else. Doing so now would save you lot of anxiety and lawyer fees in future because very few lawyers may have good understanding when you mix immigration and criminal laws together.

 

[winterfresh]

Submitted on the Record as Simple Battery

Hi Winterfresh,

I am so sorry to hear it. I don't think court would want to prosecute you guys based on just 1 witness when you guys are not willing go against each other.

Many times, lawyers/DA would want you to take reduced charges to windup the case quickly but you shouldn't accept that. Insist on clean dismissal and nothing else. Doing so now would save you lot of anxiety and lawyer fees in future because very few lawyers may have good understanding when you mix immigration and criminal laws together.

Thanks all for the suggestions. Here is an update on my case.

My case was "Submitted on the Record" (Not "Guilty"/ "Nolo" / "Adjudication Stayed") with the language on the complaint changed as "Simple Battery" (the name of the spouse was striked out from the complaint). It is "pending Dismissal" in 1 year (08/27/2013) with an Anger Management class of 8 hours and staying out of trouble for an year. So I didn't plead guilty to anything.

This court doesn't have formal documents. The only proof we now have is "striked out complaint" with Judge's initials. So we ordered the court Transcript to prove that it was changed to Simple Battery without the "admission made".

Does any experienced people here see an issue with this? Thanks again!

 

[miggjagger]

Help please urgent

I am in a similar situation as needadvise. I have been booked in va fairfax under domestic violence. I am getting a mental health report, and going in for adapt classes proactively. I have a defense lawyer now.

I am pretty much given up on being able to get my gc. The only reason to fight this charge is to be able to see my child.

Anyone with this exp or recommendations as to what plea deals to take PLEASE HELP ME

 

[Hexa]

I am in a similar situation as needadvise. I have been booked in va fairfax under domestic violence. I am getting a mental health report, and going in for adapt classes proactively. I have a defense lawyer now.

I am pretty much given up on being able to get my gc. The only reason to fight this charge is to be able to see my child.

Anyone with this exp or recommendations as to what plea deals to take PLEASE HELP ME

Essentially what you need to do is to plea to a simple assault sentence that doesn't mention 'domestic violence' anywhere. To be doubly safe, plea to an offense that doesn't carry more than 1 year maximum sentence, and try to not get actual jail time of 6 months or more. If your lawyer can do this, then you won't have a problem securing a GC later.

Domestic violence is very bad because it could be CIMT if the assault is serious enough (causing injury), which triggers inadmissability (unless you fit into the petty offense exception). It is also specifically a ground of deportability. Therefore, it is extremely important that you plea into any other charge not categorized as domestic violence.

 

[miggjagger]

Essentially what you need to do is to plea to a simple assault sentence that doesn't mention 'domestic violence' anywhere. To be doubly safe, plea to an offense that doesn't carry more than 1 year maximum sentence, and try to not get actual jail time of 6 months or more. If your lawyer can do this, then you won't have a problem securing a GC later.

Domestic violence is very bad because it could be CIMT if the assault is serious enough (causing injury), which triggers inadmissability (unless you fit into the petty offense exception). It is also specifically a ground of deportability. Therefore, it is extremely important that you plea into any other charge not categorized as domestic violence.

My attorney is telling me that he would be able to get a general continuance meaning, there would not be any plea (guilty or not guilty) for a period of 2 years after which the case is dismissed. My question now is that my H1b is expiring Nov 2014, would this have any impact on the h1b ext application? Also my GC is in the labor process, as I am trying to port from eb3 would I not get my GC until the case is completely dismissed?

 

[Hexa]

My attorney is telling me that he would be able to get a general continuance meaning, there would not be any plea (guilty or not guilty) for a period of 2 years after which the case is dismissed. My question now is that my H1b is expiring Nov 2014, would this have any impact on the h1b ext application? Also my GC is in the labor process, as I am trying to port from eb3 would I not get my GC until the case is completely dismissed?

This sounds great. If you have never been required to enter a plea, then there can be no conviction.

Form I-129 doesn't ask about your criminal history, so there should be no problem extending your H-1B. Currently it takes at least 2 years until the priority date becomes current, so since you're still in PERM and haven't even filed the I-140 yet, you have time. When you file for AOS your case should already be dismissed.

AOS requires you to submit a disposition for any criminal case that you have ever been charged with. If somehow your case is still in continuance by the time you submit the I-485, USCIS won't be able to approve it. If they can't approve it, they would likely send you a request for evidence (RFE) or worse, a notice of intent to deny (NOID). Fortunately you don't have to file AOS immediately, so you can keep extending the H-1B and wait until your case has been dismissed.

 

[miggjagger]

This sounds great. If you have never been required to enter a plea, then there can be no conviction.

Form I-129 doesn't ask about your criminal history, so there should be no problem extending your H-1B. Currently it takes at least 2 years until the priority date becomes current, so since you're still in PERM and haven't even filed the I-140 yet, you have time. When you file for AOS your case should already be dismissed.

AOS requires you to submit a disposition for any criminal case that you have ever been charged with. If somehow your case is still in continuance by the time you submit the I-485, USCIS won't be able to approve it. If they can't approve it, they would likely send you a request for evidence (RFE) or worse, a notice of intent to deny (NOID). Fortunately you don't have to file AOS immediately, so you can keep extending the H-1B and wait until your case has been dismissed.

HELP PLEASE URGENT

So my attorney could not get the general continuance. I pleaded NOT guilty, and the court found me guilty of domestic violence in Virginia, because I held my spouses hand without consent. How long do I left before i get deported?

PLEASE HELP ME>

 

[Hexa]

HELP PLEASE URGENT

So my attorney could not get the general continuance. I pleaded NOT guilty, and the court found me guilty of domestic violence in Virginia, because I held my spouses hand without consent. How long do I left before i get deported?

PLEASE HELP ME>

Calm down. All is not lost, not quite yet. The process doesn't happen overnight, or even in a month. Before you are removed, you have to be referred by somebody (police or US CIS) to the ICE, who will then issue a Notice to Appear for you to go to immigration court. You will need a competent immigration lawyer specializing in deportation defense. Only after the immigration court has made a decision that you can be removed (deported). This process takes months.

However, the chance for the criminal court to refer you to ICE is close to zero. With nobody reporting you to ICE, you can continue your life here.

Since this is your first offense, it's possible that you will get a minimum sentence (under 6 months) in probation, counseling, community service, or some combination of the three. I don't know what state you're in, but in many states an assault that doesn't result in physical injury is often a misdemeanor, meaning a maximum of 1 year in jail.

Let's say you're sentenced to 1 month with one year of probation and counseling. The disposition is a misdemeanor. While domestic violence is a deportable offense, strangely enough it's not a specifically inadmissible one. However it can make you inadmissible because it can be considered as CIMT. The good thing about CIMT is the petty offense exception, which disregards any crime where the maximum punishment is a year or less and the actual punishment is 6 months or less.

http://nortontooby.com/topics/domestic_violence

In theory when you show up for the green card interview the CIS officer can refer you right then and there to ICE for the domestic violence conviction. However, I think he would be more preoccupied with his primary role, which is to determine whether or not you're admissible. In other word, there's a very good chance that you'll just get your GC once you prove the petty offense exception.

There is no doubt in my mind that you'll have no trouble extending your H-1B. Once your employer starts the process to sponsor you for GC, your sentence is not going to affect your PERM and I-140 application. The crucial moment is the AOS after the I-140 has been approved. If you're familiar with the process at all, you'll be waiting for years for your priority date to become current.

Right now just go to court, do whatever they sentence you to do, and finish the process.

 

[IneedAdvise]

miggjagger - Here are my comments based on my experience

First of all when you say you are found guilty means what? Did court gave you anger management (10-24 classes) with two years probation or judge has ordered you jail time or fine or both?

If you get Deferred Adjudication without admission of guilt with Anger Management training classes like me, you will not have any issues.

- While I was under probation for two years I have traveled outside USA and re-entered USA 4 times.
- After my case was dismissed, I got H1b Renewed while I was in USA
- I recently stamped H1b on my passport at US Embassy in India without any issues. I even got my passport same day as my Visa Interview. I was upfront in mentioning what exactly has happened along with Court's outcome, Successful completion of Anger Management classes, probation end date etc.
- I sought legal review from Immigration perspective and have found out my case is not considered conviction from the Immigration perspective as I did not admit to guilt ( I pleaded Not Guilty in Virginia)
- I am awaiting AOS which is now in next 6-8 months but I am confident I will not have any issues with my case otherwise I would have had issue in obtaining H1b VISA at US Embassy in India or even getting H1b approved by USCIS here. Plus even after my case got dismissed I have traveled outside US twice and re-entered US without any issues. I will have to go through second level inspection but it takes around 5-10 minutes there. I keep all court documents with me including disposition document.

So nothing is lost for you should you have been directed for Anger Management Classes with 2 years probation.

Please let me know If I can answer you any other questions

Thanks

 

[IneedAdvise]

Correction on my part
My case was deferred for 24 months, however I was on probation only for 6 months which was duration for 24 Anger Management classes. Once I finished classes my probation was lifted immediately.

 

[Hexa]

First of all when you say you are found guilty means what? Did court gave you anger management (10-24 classes) with two years probation or judge has ordered you jail time or fine or both?

If you get Deferred Adjudication without admission of guilt with Anger Management training classes like me, you will not have any issues.

When the court found him guilty, that's a conviction for all intents and purposes.

 

[VTB]

Correction on my part
My case was deferred for 24 months, however I was on probation only for 6 months which was duration for 24 Anger Management classes. Once I finished classes my probation was lifted immediately.

IneedAdvise,
I have a question about your case: I know you pleaded not guilty; but, did you admit that the facts were sufficient to find you guilty?
Thanks

 

[IneedAdvise]

Hi VTB

I did not pleaded guilty and did not submit any facts. Police had taken photograph of my wife's hand as I had grabbed it so she cannot hit herself (she was banging her head on the headboard of the bed) so there were my finger marks on her hand that's it. Judge told me he is not considering it as inflicting injuries to her, however he held me responsible for touching my wife against her will. So he ordered me probation for 24 months with 24 anger management classes and observe peace at home. Since county courts are court of no records these photographs will never be kept as court documents.

Anyways My case has been dismissed, I have secured H1b visa approval and successfully stamped in my passport. Also AOS application has been filed and my immigration attorney has told it wont cause any issues as my sentencing is not CIMT and not conviction in immigration eyes. My attorney is very senior and well known. He also handles cases of deportation and removal proceedings. He has dealt cases similar to mine in past and he is very confident.

So if you are in same situation as of mine, nothing will happen to you. This is my experience and not feelings or perceptions as others blog and scares people. Do take advise of your immigration and criminal attorney and do not hear/listen to other people whom can scare you without having any knowledge on such matters or whom are not even qualified lawyers or knows nothing about immigration rules.

Let me know if you have any other questions. Without knowing details of your case and court outcome I would refrain of giving any wrong advise or suggestions to you. I would only highlight my experience as it is facts that cannot be altered/doctored/manipulated!

Thanks

 

[VTB]

Hi VTB

I did not pleaded guilty and did not submit any facts. Police had taken photograph of my wife's hand as I had grabbed it so she cannot hit herself (she was banging her head on the headboard of the bed) so there were my finger marks on her hand that's it. Judge told me he is not considering it as inflicting injuries to her, however he held me responsible for touching my wife against her will. So he ordered me probation for 24 months with 24 anger management classes and observe peace at home. Since county courts are court of no records these photographs will never be kept as court documents.

Anyways My case has been dismissed, I have secured H1b visa approval and successfully stamped in my passport. Also AOS application has been filed and my immigration attorney has told it wont cause any issues as my sentencing is not CIMT and not conviction in immigration eyes. My attorney is very senior and well known. He also handles cases of deportation and removal proceedings. He has dealt cases similar to mine in past and he is very confident.

So if you are in same situation as of mine, nothing will happen to you. This is my experience and not feelings or perceptions as others blog and scares people. Do take advise of your immigration and criminal attorney and do not hear/listen to other people whom can scare you without having any knowledge on such matters or whom are not even qualified lawyers or knows nothing about immigration rules.

Let me know if you have any other questions. Without knowing details of your case and court outcome I would refrain of giving any wrong advise or suggestions to you. I would only highlight my experience as it is facts that cannot be altered/doctored/manipulated!

Thanks

Thank you so much for your response. I really appreciate it.
My case is very similar to yours. The difference is that the police officers saw and reported that I dragged my wife and stopped her from leaving, but they did not take any photographs of us. Now, my court-appointed lawyer tells me that if I plead not guilty but admit that there are sufficient facts against me to be guilty, the judge will give me 24 months and an order for taking an 8-hour anger management course; then, if I do not violate any rules, my case will be dismissed after 24 months. My lawyer told me that this is called deferred disposition. Is this the same as what you did?
Thanks

 

[goodguy1200]

Deferred disposition is conviction for immigration purposes. Reduce any sentence below 364 days otherwise you are looking for lot of trouble.

 

[Raj H1b]

Hi All,

I'm in deep trouble i got arrested on on 11/25/2014 under Domestic violence and Battery under code 18.2-57.2 misdemeanor and have to appear in court on 12/01/2014. I dont have an attorney my Wife is in Rescue Home i cant contact her because i have protective order. Can anyone suggest what to do on this. My H1b is valid until 07/2015 does it effect my H1B extension and how can i solve this issue. If my wife take complaint back does my charges get dismissed ? If she wont take back complaint what is the worst can happen on my immigration?

IneedAdvise/Winterfresh/miggjagger - What do you suggest on my case.

Guys please i need help ...


Thanks evryone in advance

 

[VTB]

Hi All,

I'm in deep trouble i got arrested on on 11/25/2014 under Domestic violence and Battery under code 18.2-57.2 misdemeanor and have to appear in court on 12/01/2014. I dont have an attorney my Wife is in Rescue Home i cant contact her because i have protective order. Can anyone suggest what to do on this. My H1b is valid until 07/2015 does it effect my H1B extension and how can i solve this issue. If my wife take complaint back does my charges get dismissed ? If she wont take back complaint what is the worst can happen on my immigration?

IneedAdvise/Winterfresh/miggjagger - What do you suggest on my case.

Guys please i need help ...


Thanks evryone in advance

Raj H1b,
The rules may be different in different states. But your case can be problematic for you because of some national immigration laws and that your case is deportable. So do not underestimate it. First, what you should do is the following. If you afford it, hire an experienced immigration lawyer. The cost seems to be less than 1000$. Be sure that your immigration lawyer has decent information regarding the consequences of your case. After the protective order, you will have a court date in which you will be assigned a court-appointed lawyer or you should hire your own lawyer depending on your wealth. In either case, you need to link your immigration lawyer to your court lawyer. Your court lawyer needs to know about the consequences of your case and the ways you can prevent those consequences to occur. You need to do all these things as soon as possible, since your H1B is going to expire soon.
It can be very helpful for you if your wife supports your case or at least takes her complaint back. Otherwise, the case will be much much harder.
The best case (with the support of your wife and with having good lawyers) is that your lawyer achieve a joint agreement with the assistant commonwealth attorney and a continuance for your case will be ordered without any admission of the sufficient facts. In the worst scenario, you will be deported even if your case is dismissed with admission of the sufficient facts or a kind of penalty.
Bests

 

[goodguy1200]

Raj H1b,

Here are few things to keep in mind.

(1) Do not NOT contact your wife directly or indirectly as it will be considered a violation of court protective order. Violation of Protective Order is a very huge offense in any state in USA and is a deportable offense. No calls, no emails , no friends.

(2) Do not plead guilty or even agree to no contest (Nolo contendre) to the charges under VA 18.2-57.2. Virginia is a very tough state in these matters. Do not give a long statement and on 12/01/2014, enter a plea of not guilty on all charges. ( does not matter whether you have a lawyer or not on 12/01/2014).

(3) It is out of your wife's hand now. She can only decide not to cooperate with police and state prosecutors. Once police and courts are involved, the prosecutors make the decision to charge you or drop charges. It becomes a state case. However, it is a tough case for prosecutors to win if your wife does not cooperate with them.

(4) There is no need to voluntarily tell police or prosecutors that you are on H1B unless specifically asked.

(5) It will not probably affect you during H1B extension unless your employer finds out due to any reason and revokes H1B. However, it will definitely come up during green card and citizenship. It can become crime of moral turpitude (CIMT) or aggravated felony or crime of violence.

 

[IneedAdvise]

Hi Raj H1b

All is not over yet. Do not try to contact your wife while you are under protective order otherwise you become deport able and it will complicate outcome of your DV case.

Whether your wife cooperates or she doesn't it doesn't matter anymore. Your situation is you against state of Virginia and not anymore your wife.

I would say if possible plead not guilty and try to work with district attorney (with the help of your attorney and immigration attorney) to get your case dismissed. If District Attorney doesn't buzz then at least get your case to differed adjudication without admission of guilt status. You will be asked to undergo 8-24hours of anger management classes and 6 months to a year probation where you would require to see probation officer every month and before you leave Virginia you need to inform and take permission from your probation officer.

Once you complete anger management treatment your case shall get dismissed after two years.

However if you have hurt your wife badly or if there are visible injury marks on her body (which is likely a case as she has been kept in the protective house and not in your house) then neither District attorney nor judge will give you differed adjudication and they may award you jail sentence (suspended) with community service. Try to get such statement less than 6 months so that you doesn't get deport-able.

Every case is a different case and the way court handles it is different. If this is your first offense then you would get differed adjudication most likely. Do not admit the guilt unless it becomes utmost necessary.

Keep your calm and as suggested talk to your immigration and criminal attorney in a joint meeting and discuss your options. I would strongly suggest it as it may be a deal breaker for you.

With regards to your H1b, during H1b extension filing USCIS doesn't do background check so you would be ok for H1b extension. However when you apply for visa stamping from US embassy outside USA, they will run background check on you based on fingerprints they will collect and during visa interview they may ask you to explain your case. I would suggest until your case gets dismissed be its now or after two years, do not apply for visa stamping. Once your case gets dismissed it will be easier for you to explain whole situation to US embassy and visa officer.

In my case I wrote down detailed explanation on what happened with my case on DS-160 (H1b visa stamping application) and during visa interview I didnt get asked a single question and they approved my visa and deliver passport same day to me.

So have some faith and maintain your calm and balance at home

Let us know outcome of your case as it may be a reference for others who may get into similar troubled situation

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