F1 Visa with Plea in Abeyance

[blackice001]

Hello,

I go to school in Utah as an international student with F1 Visa. I was charge by Domestic Violence in November 2009. I had an attorney friend and he helped me out with this case. He talked to the prosecutor. Finally, in February 2010, the court made an arrangement that the court struck the Domestic Violence charge and reduced the charge to disorderly conduct. Then, I was able to Plea in Abeyance. I received the order of dismissal from the court at the end of June. I filed a request to expunge the charge in February 2011 and I think I should be able to expunge the case by May.

I am planning to go back home during the summer. There is a question, Have you ever been arrested or convicted for any offense or crime, even though subject to a pardon, amnesty, or other similar action? , on the application for the F-1 Visa I am not sure how I should answer it. My attorney friend told me I have never been either ‘arrested” or “convicted” of a crime. My plea of guilty was received by the court “ in abeyance”, and upon the happening of certain things( payment of a fine and the passing of time with no further incidents) the charges first will be “dismissed”, and later your record will be “expunged”. Thus, no “conviction” of a crime. But he is not an immigration attorney.

If I can get the case expunged, I am not sure how I should answer this question. If you have any knowledge or experience with cases of this type, any suggestions or advice will be highly appreciated.

 

[Concerned4us]

Expungement does not apply for immigration purposes.

 

[BigJoe5]

From what you say, the actual charge ended up being "disorderly conduct" and it was dismissed AFTER fulfilling some conditions. Did you take some classes or get counseling? EVEN if the actual documentation that you have or can get is deemed a "conviction" under immigration law (and it likely will), it in itself is not a ground of inadmissibility or deportability. Fully disclose it. Do not try to hide it or play some stupid word game on the visa applications in the future, they will know about it even if it is "expunged". Attempting to conceal it or deny it WILL be held against you as "false testimony". Do NOT fall into that trap. Never lie about something that if it is disclosed WILL NOT BE HELD AGAINST you in the first place! "Conviction" is defined at INA 101(a)(48).

Tell your friend to take (or retake?) an ethics class and get some common sense!

Utah Code
Title 77 Utah Code of Criminal Procedure
Chapter 2a Pleas in Abeyance
Section 3 Manner of entry of plea -- Powers of court.

77-2a-3. Manner of entry of plea -- Powers of court.
(1) (a) Acceptance of any plea in anticipation of a plea in abeyance agreement shall be done in full compliance with the provisions of Rule 11, Utah Rules of Criminal Procedure.
(b) In cases charging offenses for which bail may be forfeited, a plea in abeyance agreement may be entered into without a personal appearance before a magistrate.
(2) A plea in abeyance agreement may provide that the court may, upon finding that the defendant has successfully completed the terms of the agreement:
(a) reduce the degree of the offense and enter judgment of conviction and impose sentence for a lower degree of offense; or
(b) allow withdrawal of defendant's plea and order the dismissal of the case.

INA 101(a) [Definitions]

(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.