Expunged criminal records and N-400 filing

J

jen1008

Registered Users (C)
Hello everyone,

I really need help here. I just received the initial interview letter but I'm in cold feet. I got arrested in oct, 2006 for 3 charges:
massage w/o license
massage the opposite sex
massage the private part of opposite sex

I then entered into the deferred prosecution program. In Nov, 2007, all those charges are dismissed. In June, 2009, I got all those records expunged. My interview date is in late March and I just realized there is a 5 year wait before I can apply for citizhenship. I'm really worried right now. I don't know if I should go to the interview because I have a bad feeling that they will deny me since it's only been 2 years since the case was dismissed. Can you guys tell me what is the chance of my application being denied or approved? If I get denied, will I face possible deportation? Is it too late to withdraw my application now?

Time is running out, please help me. I really appreciate it.
 
You can always withdraw without any adverse effect.
Expungement is only for other purposes - immigration can still see it.
Deportation is not automatic on denial. They have to file a case - but the probability of discovery goes higher since the file is active.
 
Thanks for your reply. Do you think it's better I just withdraw my application? If they deny it, it won't look good for future application, will it?
 
If you withdraw, it will not look bad for future application so do not worry about it.
Why do you want to withdraw? If you believe that the charges brought against you are deportable charges, then applying after 5 years may still get you deportable. I recommend that you first find out if your charges are deportable or not. If they are deportable then withdraw and never apply again. If they are not deportable then just go to the interview. You will most probably get denied, but it will not affect your future application. So there is nothing to loose by going to the interview. Just make sure that your charges are not deportable.
 
Thank you. How do I find out if my charges are deportable or not? I never got convicted and the case was eventually dismissed. But the arrest record, even though, is not searchable by the public still on file with them.
 
jen1008 said:
Thank you. How do I find out if my charges are deportable or not?
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Consult an immigration lawyer. Show them the court papers so they can see the exact details of the charges and the penalty and the maximum possible penalties.
I never got convicted and the case was eventually dismissed.
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USCIS has their own different definition of conviction. Generally, probation or deferred prosecution is seen as a conviction for immigration purposes, even if it was ultimately dismissed in court.
 
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jen1008 said:
Thank you. How do I find out if my charges are deportable or not? I never got convicted and the case was eventually dismissed. But the arrest record, even though, is not searchable by the public still on file with them.
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Laws about deportability (and inadmissibility) can be found here at the following links. But you may need a professional lawyers to
see your offense belong to any of categories listed

Deportable offense are defined here by INA 237

http://www.uscis.gov/propub/DocView/slbid/1/2/65?hilite=

Inadmissibile offense are defined here by INA 212
http://www.uscis.gov/propub/DocView/slbid/1/2/31?hilite=

Defitnion of conviciion for immigration purpose is defined in INA 101 (48)(A) as below
(48)(A) The term "conviction" means, with respect to an alien, 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.
(B) Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part. 16/


Beside these statute laws, there are also court ruling BIA decision etc that define a particular type of offense
belong to any of categories in INA 212 & 237 or defnition of "after admsision" etc.

Deportability is about whether one already in USA should be kicked out (or a PR should be deprived the right of PR)
Inadmissibility is about whether one outside USA should be let in or not (or whether eligible to receive a GC or not).

For you who already have a GC, it is the deportability that matters. But inadmissibility can still apply if you stay outside
USAS for more than 6 month. Because one is considered to be seeking re-admission when coming back from a >6 month trip.
When one seek admission or readmission, inadmissibility crteria kick in.

An offense can be both deportable and inadmissibile, can be deportable but not inadmissible, or not deportable but inadmisisble
or neither.
 
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Thank you. So in you guys' opinion, I should just withdraw my application right now because

1. I only waited 2 years after the probation so I will be most likely get denied.
2. Filing N400 will expose me in their radar and the worse case scenario is I might be deported

The Interview date is March 15 and I have to decide right now.

Thank you so much
 
jen1008 said:
Thank you. So in you guys' opinion, I should just withdraw my application right now because

1. I only waited 2 years after the probation so I will be most likely get denied.
2. Filing N400 will expose me in their radar and the worse case scenario is I might be deported

The Interview date is March 15 and I have to decide right now.

Thank you so much
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There are good things about going ahead assuming risk of deportation is small if not nilch. You can treat this interview as legal consutation
for yoru future application. IO can be different from one to another and from now to 5 years later but his opinion may be
more valuebale than a lawyer for apparent reason. You can blantly ask the IO questions like "Am I elgible now?" "If not,
will I be eligble 3 years later" etc.

If you want to play this withdraw game, maybe the game is still on after the interview. You can intentially withhold some
document and refuse to provide it when N-14 comes and yoru case wills till be adminitrsatively closed when they
see you fail to submit documents.
 
Living in a country permanently without chance for its citizenship is also a suffering. Of course many choose not to pursue
citizenship andf live as PRs for teh rest of their lives. But that is their choice not because they are permanently ineligble.
 
Thank you, WBH. It sounds you tried to encourage me to go for the interview. So in your personal opinion, the chance of facing deportation based on my kind of charges are pretty small? Is it by law that I have to wait 5 years or just the CIS' preference? I have read the posts here that if I get denied, it will look bad on my future application. Is it true? Will it reduce the chance of me getting approved in the future? I'm trying to decide if more bad will come out of this interview than good.

Also, if different IO has different opinion, not all of them will see this crime as a moral charactor judgement, right? I could tell them life was hard and I was naive and didn't realize that was a crime. But I'm just so afraid they will see it as prostitution even if it was not.

I appreciate your reply and any other person' opinion. I'm battling real hard inside.
 
jen1008 said:
Thank you, WBH. It sounds you tried to encourage me to go for the interview. So in your personal opinion, the chance of facing deportation based on my kind of charges are pretty small?
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If they are not CIMT, then they are not deportable. For inadmissibbility issue, you are already admiited into PR, so that should not be a problem anymore unless you make a trip outside USA for more than 6 month.

So the key is if they are CIMT or not. and all your three charges I beleive is based upon one single act that might be mitigating factor.

I can not estimate odds of deportation but I personally believe it is smaller than 50%. But you better consult a professional lawyer.
Many law firstm provide free consultation for teh first time
 
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I'm confused with your first sentence. Did you mean: If they are NOT CIMT, then they are not deportable?
 
jen1008 said:
I then entered into the deferred prosecution program. In Nov, 2007, all those charges are dismissed.
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Did the deferred prosecution program require you enter a plea other than not guilty? Depending on if you entered a plea in court will determine if the charges count for immigration purposes.
Also, without knowing the exact code you were charged under in your state it would be impossible to determine how they would affect your application. Any talk about denial or deportation is speculative.
 
I don't remember if I had to plea guilty first to enter that program or not. The program was supposed to last for a year. I think the deal was, if I got caught again, then I would automatically be guilty of all those charges, plus the new charges. If I stayed clean the whole time, the case would be dimissed.

I really can't decide which code those charges fall under. They were 3 misdimenor charges from one case. The closest one will be prostitution but it's not. I'm just worried the IO will see it that way. You guys probably know law better than they.

Now even if the crime is not deportable, I only waited 2 years since I was through my program. So my question is, can they just deny my application because of the insufficient waiting time? Can anyone answer that question for me?

Really really appricate it.
 
jen1008 said:
, So my question is, can they just deny my application because of the insufficient waiting time? Can anyone answer that question for me?
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Yes, they can deny your case for lack of GMC. It's a subjective evaluation so it's up to you to prove you otherwise don't lack GMC.
 
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jen1008 said:
Now even if the crime is not deportable, I only waited 2 years since I was through my program. So my question is, can they just deny my application because of the insufficient waiting time? Can anyone answer that question for me?
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Normally you just have to wait 5 years after the conviction, not 5 years after the end of probation/program.
 
jen1008 said:
I don't remember if I had to plea guilty first to enter that program or not. The program was supposed to last for a year. I think the deal was, if I got caught again, then I would automatically be guilty of all those charges, plus the new charges. If I stayed clean the whole time, the case would be dimissed.

I really can't decide which code those charges fall under. They were 3 misdimenor charges from one case. The closest one will be prostitution but it's not. I'm just worried the IO will see it that way. You guys probably know law better than they.

Now even if the crime is not deportable, I only waited 2 years since I was through my program. So my question is, can they just deny my application because of the insufficient waiting time? Can anyone answer that question for me?

Really really appricate it.
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'I don't know if I pled guilty or not ' is not a good answer to give at the interview.
Get details of your case from the court/lawyer/case worker or whoever you can and make sure you understand what you were charged with, the deferred prosecution program, your status during that program and everything after that.

Your case approval or denial fall into the discretionary powers of the IO and it is up to you to convince the IO that this was not a prostitution case. I wouldn't be surprised if the IO defers the decision or tells you wait another 3 years.

DO NOT tell the IO that you did this because 'times were hard' because it suggests that for you, this is an acceptable way of earning a livelihood.
 
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