Dv problem
- Thread starter toneto
- Start date
WBH,
To get a case 'vacated' only means that the prior (older) judgment is cleared. After the case gets vacated, then old case will go under trial again. This time the defendant can loose the case or the new judgment can be more severe.
But in minor domestic violence cases the state usually doesn't want to pursue the case with the same vigor. There are many reasons for that, but I list a few of them here.
1. The defendant has already paid some fine, taken classes and done some community service. This shows that some of the punishment is already given to the defendant.
2. The defendant has not continued the old behavior of violence.
3. The defendant has not got any other brush with the law since the last incident.
4. The state usually has difficulty getting the witnesses and their memory has weakened.
Hence State and the judge (with the help) of attorney tries to reduce the new charges so that it no more becomes a immigration deportable offense.
To get a case 'vacated' only means that the prior (older) judgment is cleared. After the case gets vacated, then old case will go under trial again. This time the defendant can loose the case or the new judgment can be more severe.
But in minor domestic violence cases the state usually doesn't want to pursue the case with the same vigor. There are many reasons for that, but I list a few of them here.
1. The defendant has already paid some fine, taken classes and done some community service. This shows that some of the punishment is already given to the defendant.
2. The defendant has not continued the old behavior of violence.
3. The defendant has not got any other brush with the law since the last incident.
4. The state usually has difficulty getting the witnesses and their memory has weakened.
Hence State and the judge (with the help) of attorney tries to reduce the new charges so that it no more becomes a immigration deportable offense.
An expunged record still counts for immigration purposes. The main trigger for deportability for DV convictions is whether the court records show if any force or threat of force was used. Of course, providing court documents to USCIS may be impossible if the conviction was expunged.
Will USCIS insist that you should get court documents before it is expunged.
Since burden of proof is upon the applicant so they don't care if you
can notget court docuemtns and if you cannot get court docuemtns they just deny your application for insufficient docuemnts?
Jackolantern
Registered Users (C)
The failure to inform the defendant of the immigration consequences actually can be used to vacate the original conviction, if it resulted from a guilty plea and not a jury finding of guilt. But getting it vacated is something that has to be pursued in the state court, not the immigration court.
It is just all about technicality. If I were an USCIS, I would just stare into
the applicant eyes and ask him to look into my eyes and sternly ask him
to tell me under oath: "Did you really commite dometic violence with
force or threat of force? I don't care about your conviction ro no convcition".
By the way, if one is really 100% innocent but was wrong convicted,
can he still maintain his innocence in front of USCIS?
The agent probably has a ton of regulations to go by. Also I wonder for denial-they probably go over with their supervisors thoroughly-because there is always the chance of appeal/overuling/lawsuits etc. As others have pointed out a good immigration attorney specializing in the criminal aspect is your best bet and you can put it behind you. Like someonels epointed out-much better to get someone local with good results and working relationship witht he DO to guide you through everything.
I am under oath and I can not use fifth amendment.
well this is how it went:
-talk to a lawyer (free) she told me that chances are very minimal of not getting my interview aproved,she said she went already with cases like mine and no problem.
she will charge $1500 for the procces way less tham the other and she also say that she will personally go with my to the interview.
she acctually say you are to worried.
-on the afternoon I called another lawyer and told me almost the same thing but he was acctually more pesimistic about it..he will charge 2000 for the same thing.....
basically this will depend on the officer i guess ,,,,what are your thoughts
THANKS IN ADVANCE!!!!
-talk to a lawyer (free) she told me that chances are very minimal of not getting my interview aproved,she said she went already with cases like mine and no problem.
she will charge $1500 for the procces way less tham the other and she also say that she will personally go with my to the interview.
she acctually say you are to worried.
-on the afternoon I called another lawyer and told me almost the same thing but he was acctually more pesimistic about it..he will charge 2000 for the same thing.....
basically this will depend on the officer i guess ,,,,what are your thoughts
THANKS IN ADVANCE!!!!
$1500 can save you a lot of headaches later if you are not familiar enough with the law. Time of conviction (2002), expungement of conviction, no evidence of force or threat of force and misdemeanor would all seem to indicate that it shouldn't be an issue. Of course, a lawyer would be able to represent you and explain the legal facts to the IO if needed.
Statistically I don't think hiring lawyer is useful. It is useful if you go to court but that much
useful if you go to an interview. You have a DV case
but it does not really involve a lot of technicality. But as soemonesles said,
having a lawyer may bring soem peace of mind. It will reduce your
frustration a lot and improved yoru quality oflife during this period and
It may be worth it
Jackolantern
Registered Users (C)
USCIS won't believe it.
The thing with many misdemeanor convictions in which the person pleaded guilty is that it sometimes is the case that the person didn't do it, or they did something but it was less serious. What happened is that they pleaded guilty anyway because the prosecutor made a deal and said that if they plead guilty they can just pay a small fine and go free and it will be just a misdemeanor and it will get expunged after a year if they don't get into any more trouble, but if it goes to trial and the jury finds them guilty it will be six months in prison. So rather than risk going to prison, they pay $200 to get it over with, even though they're actually innocent (or semi-innocent in that their real action was something lesser like disturbing the peace, not the assault or domestic violence they were charged with).
The years go by, the conviction is expunged, and they think they have a clean record again. But then they apply for a green card or citizenship and find out that they could be deported for a conviction which they thought was a trivial thing that didn't matter anymore. If they knew about the deportation consequences at the time of the trial they maybe would have taken the effort and risk to fight it out in court, but now it's too late. So that's the rationale behind canceling deportation orders due to the failure to be informed of the immigration consequences of pleading guilty. But this is based on court rulings, not any leniency USCIS/ICE thought of on their own. Up to them, they'd deport you regardless of any technical issues in your trial.
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I doubt that if they really fight it, they can get better results on the whole.
Maybe someone are better off because they can get a no guilty verdict
after pleading not guilty. The other half may get even worse results that
is a conviction with real jail times than non-conviction without jailtime
but considered to be conviction for immigration purpose. You may say both
are conviction for immigration so there is no difference. But if USCIS
factor in sentence time, it is apparently better to get a plead guilty but dismisied case. So either way it is a dillema at every crossroad.
Isn't life suffering or interesting or both?
rick92
Volunteer Moderator
Go with the lawyer. If she is saying you are too worried, then probably you are. RELAX.... take it easy. Goto the interview with the SHE/Lawyer and let her do the talking. And tell us what happened... 
dafortycal
Registered Users (C)
The problem with that is, the State isn't in the immigration business. If you haven't made them aware of the status, how can you blame them when they fail to warn you. You can still get removal if a warning isn't given.