Domestic Violence

[doeeyj]

Hi, my wife got arrested a few days ago for domestic violence California PC 243 (e) (1) - domestic assault misdemeanor. Long story short - she slapped me a few times and I dialed 911. No injuries to anyone. I thought the police would talk her down and leave but instead they put her in handcuffs and took her to jail. I bailed her out and hired an attorney to defend her. My wife is on a K3 spouse visa and here in the US for about 6 months now. I am a US citizen. Now, the DA rejected the charges and did not file a case. I will not file charges either. My attorney says that there will be no charges filed ever but the DA has one year to do so if they wanted. Hence there was no trial or conviction or dropping of charges (since no charges were ever filed). In that case my question is:

1. Will this impact her AOS in any way?
2. Can she travel internationally right now or will she be in trouble at the airport with immigration (arriving or departing)?
3. Is 243 (e) (1) considered a crime of moral turpitude?

I have spoken to a few immigration attorneys with conflicting advice on the case but thought I would check with people with similar experiences in this forum as well.

Your advice will be sincerely appreciated.

Thanks!

 

[TheRealCanadian]

She should be fine, provided she discloses the arrest. This is one of those cases where the crime can't hurt you, but the cover-up will.

 

[cooldude01usa]

domestic violence and I-485 approval

Hi Folks
I have been a silent reader of these forums, they have been a great source of information. I have a Domestic violence P.C.242/243(a) on my record which was expunged. I wanted to share my interview experience which I had in San jose office.

As mentioned by Niladri in one of his posts, USCIS will have your arrest record. Its good if you have an attorney by your end most of the attorneys know the officers so its a ice breaker. Keep all your paper work court documents ready. If you have used AC-21 and your I-485 is employment based then have all documents handy.
In my case the officer, didnt ask me to explain why the arrest happened in my own words, he asked me for the original documents. It really depends on the officer. He asked me and my wife the original questions of I-485 form.

At the end he said we can approve your case, since dates are not current, the cards will be mailed once the dates get current . My PD is Nov 2005 EB2 India.

This is for benefit of all who have a domestic violence conviction.

I am not an attorney, this is just my experience.

 

[mikekite86]

I had 3 cases of Domestic Violence with my own mother. And boy oh boy I went to jail for 24 hours till $500 bail was made. I went to court 3 different times. I had to go twice each time. 1st time because she didn't show up. And 2nd time it was dropped. I had my mom call the cops on me, so many times that I lost count in 2000. No joke! I didn't have a record because I told her if something should happen to me. I am screwed and if I am screwed so is she with immigration. Long story.

But anyways in 2005 when going to immigration courts. They have the DA for immigration with a file on you and everything. The judged asked if the DA had any problems with me? And they opened up the folder and I was thinking "Ohhhh Sh*t, all those times my mom called the cops on me for no reason." And they guy just says. "Nope his clear." So if the case is dropped and she has no record she should not have a problem.

I went to hell and back in those days man.

 

[ZapBranigan]

I was charged with domestic violence long before applying for adjustement of status (employment based) but went through pretrial diversion in FL. Of course, I had to go to an interview and I did bring an attorny. Bottom line is that pretrial diversion does not count as a conviction, but this is state specific. In some states it does.

When I was on advanced parole, I did hop over to Canada to visit family. When returning, the immigration officer at the POE said I would be denied entry unless I was formally found not guilty, without exception. I was told that the AP was the only thing overriding the decision to refuse entry.

Now after getting my green card, I am worried about traveling outside the U.S. and being denied re-entry for this very reason even though I wsa approved for permanent residency. It seemed the POE had a different opinion than what the interviewing officer during my AOS had, as well as the case law for Florida immifration office. The crossing was at Detroit, MI.

How often does this happen and should I risk ever leaving the U.S.?

 

[Nicejoe]

I was charged with domestic violence long before applying for adjustement of status (employment based) but went through pretrial diversion in FL. Of course, I had to go to an interview and I did bring an attorny. Bottom line is that pretrial diversion does not count as a conviction, but this is state specific. In some states it does.

When I was on advanced parole, I did hop over to Canada to visit family. When returning, the immigration officer at the POE said I would be denied entry unless I was formally found not guilty, without exception. I was told that the AP was the only thing overriding the decision to refuse entry.

Now after getting my green card, I am worried about traveling outside the U.S. and being denied re-entry for this very reason even though I wsa approved for permanent residency. It seemed the POE had a different opinion than what the interviewing officer during my AOS had, as well as the case law for Florida immifration office. The crossing was at Detroit, MI.

How often does this happen and should I risk ever leaving the U.S.?

I was on the same boat as you, but I traveled overseas, and came back without issue. But now they fingerprint every green card holder at POE, I think they may question you. But your offense is not inadmissible, they can't refuse your entry.

 

[Nicejoe]

Hi Folks
I have been a silent reader of these forums, they have been a great source of information. I have a Domestic violence P.C.242/243(a) on my record which was expunged. I wanted to share my interview experience which I had in San jose office.

As mentioned by Niladri in one of his posts, USCIS will have your arrest record. Its good if you have an attorney by your end most of the attorneys know the officers so its a ice breaker. Keep all your paper work court documents ready. If you have used AC-21 and your I-485 is employment based then have all documents handy.
In my case the officer, didnt ask me to explain why the arrest happened in my own words, he asked me for the original documents. It really depends on the officer. He asked me and my wife the original questions of I-485 form.

At the end he said we can approve your case, since dates are not current, the cards will be mailed once the dates get current . My PD is Nov 2005 EB2 India.

This is for benefit of all who have a domestic violence conviction.

I am not an attorney, this is just my experience.

Did you get your citizenship approved?

 

[secondchances]

I was charged with domestic violence long before applying for adjustement of status (employment based) but went through pretrial diversion in FL. Of course, I had to go to an interview and I did bring an attorny. Bottom line is that pretrial diversion does not count as a conviction, but this is state specific. In some states it does.

When I was on advanced parole, I did hop over to Canada to visit family. When returning, the immigration officer at the POE said I would be denied entry unless I was formally found not guilty, without exception. I was told that the AP was the only thing overriding the decision to refuse entry.

Now after getting my green card, I am worried about traveling outside the U.S. and being denied re-entry for this very reason even though I wsa approved for permanent residency. It seemed the POE had a different opinion than what the interviewing officer during my AOS had, as well as the case law for Florida immifration office. The crossing was at Detroit, MI.

How often does this happen and should I risk ever leaving the U.S.?

Did you declare your DV arrest when filing your AOS? If you declared your arrest and received your green card even after that then I don't believe you need to worry.

I went through a similar situation and adjusted status based on marriage to a UZ citizen. I declared my arrest and produced all the relevant paperwork. I was even questioned about this during the AOS interview and was approved without a problem. I have not traveled outside the country as yet, but will be doing so shortly.

 

[Nicejoe]

Did you declare your DV arrest when filing your AOS? If you declared your arrest and received your green card even after that then I don't believe you need to worry.

I went through a similar situation and adjusted status based on marriage to a UZ citizen. I declared my arrest and produced all the relevant paperwork. I was even questioned about this during the AOS interview and was approved without a problem. I have not traveled outside the country as yet, but will be doing so shortly.

Second Chances, Would you please share your POE experience when you travel abroad? I may visit my elderly mother in the future.Thank you.

 

[doeeyj]

I was charged with domestic violence long before applying for adjustement of status (employment based) but went through pretrial diversion in FL. Of course, I had to go to an interview and I did bring an attorny. Bottom line is that pretrial diversion does not count as a conviction, but this is state specific. In some states it does.

When I was on advanced parole, I did hop over to Canada to visit family. When returning, the immigration officer at the POE said I would be denied entry unless I was formally found not guilty, without exception. I was told that the AP was the only thing overriding the decision to refuse entry.

Now after getting my green card, I am worried about traveling outside the U.S. and being denied re-entry for this very reason even though I wsa approved for permanent residency. It seemed the POE had a different opinion than what the interviewing officer during my AOS had, as well as the case law for Florida immifration office. The crossing was at Detroit, MI.

How often does this happen and should I risk ever leaving the U.S.?

The DA did not even file a case against my wife hence no pretrial diversion or charges pending but she does have an arrest record. That's about it. When we showed up for the court date, they told us charges have not been filed, stamped our court document saying we showed up in court and then we just went home. Also, seems like in California the DA do not formally drop charges in small cases - they just let the arrest languish until the statute of limitations runs out (9 more months left in our case). Do you think she would have a problem at POE? 2 out of 3 attorneys I spoke to (nominal consultation fee paid) said she won't have a problem. One of them (from a well known large firm) said hell was going to break loose and then sent me a large bill to do "further research". What should I do?

 

[TheRealCanadian]

One of them (from a well known large firm) said hell was going to break loose and then sent me a large bill to do "further research". What should I do?

Tell the third attorney that he is a moron and you aren't here to pay him to figure out the answers to questions he should already know.

 

[ZapBranigan]

Did you declare your DV arrest when filing your AOS? If you declared your arrest and received your green card even after that then I don't believe you need to worry.

I went through a similar situation and adjusted status based on marriage to a UZ citizen. I declared my arrest and produced all the relevant paperwork. I was even questioned about this during the AOS interview and was approved without a problem. I have not traveled outside the country as yet, but will be doing so shortly.

Naturally. I also brought an attorney with me just in case. The interview lasted all of 3 minutes. We were just asked our names, address and my current employment, since it was employment based. The only thing that came up about the arrest was when the interviewing officer said he just needed to get his supervisors signature on the paperwork. It seemed like it wasn't a big deal at all. The only time there was an issue was when I was crossing the border while while my AOS was pending and I was sent to secondary inspection and given the third degree and told that without the AP, I would never, ever be allowed in the U.S. since there wasn't a formal acquittal.

 

[doeeyj]

Zap, at the POE, did they ask you if you were undergoing a pre-trial diversion program? Also, did you finally get your formal acquittal? Was it after you finished your pre-trial diversion program? What form was it in - a letter from the court or from the DA or just court records and what did it say?

Thanks

 

[ZapBranigan]

Zap, at the POE, did they ask you if you were undergoing a pre-trial diversion program? Also, did you finally get your formal acquittal? Was it after you finished your pre-trial diversion program? What form was it in - a letter from the court or from the DA or just court records and what did it say?

Thanks

In FL, the pretrial diversion results in dropped charges, not an aquittal. When I was asked about the arrest, I showed them a copy of the notice dropping the charges for completing the pretrial diversion. The immigration officer implied that any outcome other than an aquittal = guilty, including pretrial diversion.

When I tried to collect the documents relating to the case from the courthouse, I learned that all the physical court files and DA records in that county are destroyed after 2 years for pre-trial diversions. All they have is the digital court docket. If you get a notice that the charges are dropped, make sure you keep it.

 

[doeeyj]

In FL, the pretrial diversion results in dropped charges, not an aquittal. When I was asked about the arrest, I showed them a copy of the notice dropping the charges for completing the pretrial diversion. The immigration officer implied that any outcome other than an aquittal = guilty, including pretrial diversion.

When I tried to collect the documents relating to the case from the courthouse, I learned that all the physical court files and DA records in that county are destroyed after 2 years for pre-trial diversions. All they have is the digital court docket. If you get a notice that the charges are dropped, make sure you keep it.

Thanks Zap. In our case, no charges were filed hence we don't have any acquittal document or will ever get any but we do have an arrest record. I know you don't have a crystal ball or are an expert, however, being someone who was in a very similar situation, what do you think would be the reaction of the immigration officer in our case? I know I am asking you to speculate but better you than anyone else, right? Thanks much!

 

[secondchances]

Second Chances, Would you please share your POE experience when you travel abroad? I may visit my elderly mother in the future.Thank you.

I will. I sought the guidance of my lawyer before leaving the US and his opinion is that problems were unlikely. He said that if my arrest record showed up when I am fingerprinted, the chances of being detained or denied entry were remote. He went on to say that in a worst case situation where my arrest became an 'issue' I would still be granted entry and given a court date with an immigration judge.

DV is a deportable offense but not inadmissible. USCIS had the opportunity to deport me and deny my AOS application when the arrest / case came up in my AOS interview, which they didn't do. I will be reentering in the second week of April.

 

[ZapBranigan]

Thanks Zap. In our case, no charges were filed hence we don't have any acquittal document or will ever get any but we do have an arrest record. I know you don't have a crystal ball or are an expert, however, being someone who was in a very similar situation, what do you think would be the reaction of the immigration officer in our case? I know I am asking you to speculate but better you than anyone else, right? Thanks much!

There are so many variables in that question. Perhaps you can ask for a letter from the prosecutor's office saying you aren't being charged? I am no expert, but from what I've been told and have read, having a document showing the final disposition is important. I also remember that if the case is pending, it may not be viewed as a conviction. The case is still in progress. For a few hundred dollars, a consultation with an immigration attorney specializing in criminal issues is not a bad idea, particularly one familiar with the state where the arrest took place.

For a charge of DV, it also depends on what state you are in because what constitutes DV is different in each state. Some include 'unwanted touching' while others are more strict requiring 'bodily harm.' Same thing with pretrial diversions. Different states have different rules which can put you on one side or the other of 'conviction.'

 

[doeeyj]

There are so many variables in that question. Perhaps you can ask for a letter from the prosecutor's office saying you aren't being charged? I am no expert, but from what I've been told and have read, having a document showing the final disposition is important. I also remember that if the case is pending, it may not be viewed as a conviction. The case is still in progress. For a few hundred dollars, a consultation with an immigration attorney specializing in criminal issues is not a bad idea, particularly one familiar with the state where the arrest took place.

For a charge of DV, it also depends on what state you are in because what constitutes DV is different in each state. Some include 'unwanted touching' while others are more strict requiring 'bodily harm.' Same thing with pretrial diversions. Different states have different rules which can put you on one side or the other of 'conviction.'

Thanks Zap. I did consult two lawyers and they both said what you are saying:

1. An arrest is not a conviction. (however pre-trial diversion is considered a conviction). People get arrested for all sorts of wrong reasons.
2. In CA there 2 domestic violence charges - one is a misdemeanour and the other is a felony. It is important to make that distinction for immigration purposes.
3. A case in progress or no charges filed is not a conviction hence there should be no immigration consequences.

Well, we will keep our fingers crossed and travel! God help us.

Regards

PS: As far as getting a letter from the prosecutor's office saying no charges are/will be filed - everyone I have spoken to says I won't have any luck with that.

 

[Nicejoe]

I will. I sought the guidance of my lawyer before leaving the US and his opinion is that problems were unlikely. He said that if my arrest record showed up when I am fingerprinted, the chances of being detained or denied entry were remote. He went on to say that in a worst case situation where my arrest became an 'issue' I would still be granted entry and given a court date with an immigration judge.

DV is a deportable offense but not inadmissible. USCIS had the opportunity to deport me and deny my AOS application when the arrest / case came up in my AOS interview, which they didn't do. I will be reentering in the second week of April.

Good luck, secondchance. Thank you very much for your input. My mother raised me up in a slum, had a very difficult life before. She is 78 years now. I really want to see her often.

 

[secondchances]

Second Chances, Would you please share your POE experience when you travel abroad? I may visit my elderly mother in the future.Thank you.

No issues at POE. The scanned my fingerprints and sent me on my way like they did with all other non-citizens. Not sure if the fingerprint scanning exercise will happen every time I travel.