Failure to disclose incident during GC application

J

jasoos007

Registered Users (C)
I am getting ready to file my N400 application. I am looking for some direction on how to best prepare (if at all) for this journey.

Back in 2004, I was charged with a hit and run accident, I pleaded not guilty and case was later dismissed. Since than I had two speeding tickets one in April 2009 and one in April 2011. I paid fine for both of them.

The problems is during my Green card application process in 2005, my lawyer prepared all the paperwork and I completely overlooked a similar question.

I am wondering what are my chance ?

I really appreciate everyone's advice.

Thanks
 
In 2004 the I-485 question had the wording "been arrested, cited, charged, indicted, fined or imprisoned for breaking or violating any law or ordinance, excluding traffic violations".

So disclose the 2004 incident with your N-400, and bring documentation of the dismissal. If the interviewer says that you didn't mention it with your I-485, point out the "excluding traffic violations" clause.
 
Thanks

Jackolantern said:
In 2004 the I-485 question had the wording "been arrested, cited, charged, indicted, fined or imprisoned for breaking or violating any law or ordinance, excluding traffic violations".

So disclose the 2004 incident with your N-400, and bring documentation of the dismissal. If the interviewer says that you didn't mention it with your I-485, point out the "excluding traffic violations" clause.
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Thank you Jackolantern. I will do exactly as you suggest. Should I mail in a copy of my court record or just take one to the interview.

Do you think, I am better off hiring an attorney or I should be able to get through.

Thanks
 
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Jackolantern said:
In 2004 the I-485 question had the wording "been arrested, cited, charged, indicted, fined or imprisoned for breaking or violating any law or ordinance, excluding traffic violations".

So disclose the 2004 incident with your N-400, and bring documentation of the dismissal. If the interviewer says that you didn't mention it with your I-485, point out the "excluding traffic violations" clause.
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Actualluy that means ordinary traffic violations. So the OP should have dosclosed that hit and run accident but not the other two spoeeding tickets
 
WBH said:
Actualluy that means ordinary traffic violations. So the OP should have dosclosed that hit and run accident but not the other two spoeeding tickets
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Perhaps. But it leaves room for debate, enough to argue against accusations of willful and material misrepresentation.

To be on the safer side, the OP should apply more than 5 years after the GC was approved (3 years if applying based on marriage) so the failure to disclose it during GC adjudication would be outside the statutory period for good moral character.
 
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Jackolantern said:
Perhaps. But it leaves room for debate, enough to argue against accusations of willful and material misrepresentation.

To be on the safer side, the OP should apply more than 5 years after the GC was approved (3 years if applying based on marriage) so the failure to disclose it during GC adjudication would be outside the statutory period for good moral character.
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But if USCIS take the hit-and-run seriously, The GC can be revoked. Remmember in another thread, a person
is denied due to a hit and run incidence and perhaps face deportation. In the current case, of course OP
pleaded NOT guilty and was dismissed so that there is no ground for that kinfo action on itself. But not
disclsoing it can still be a problem. You can not argue based on such logic as "It would not matter
anyway even if I diclose it , therefore it would be OK for me not to disclose it even later it was
foudn out "
 
Ultimately it would be up to the courts to decide whether the "excluding traffic violations" clause means it's acceptable to NOT list a dismissed charge of leaving the scene, and if it's not acceptable does it rise to the level of a willful and material misrepresentation, considering the possible interpretations of "excluding traffic violations", and would it affect eligibility for naturalization.

At this point, I think the worst case for this situation would be denial for lacking good moral character if the GC was approved in the past 5 years, because the failure to disclose it during adjudication would be in the 5-year statutory period. So the OP should wait until after the 5-year GC anniversary.
 
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the excluding traffic violation clause used to be on N-400 too. It is said why it was removed is exactly
because many applicants do not disclose DUI and once USCIS found out on thier own these applicants use that
clause as an excuse. It is also noticed that the oath letter even explicitly ask the applicants
to disclose traffic violations by adding an "including traffic violation" clause.

It is very strange that the clause has not been removed from I-485. I guess the reason if the
citizenship portion of USCIS and the GC section of USCIS never communicated to each other.
 
Thanks

Jackolantern and WBH: Thank you for taking time out to shed some light on the situation.

My green card was approved in Feb 2008 so am outside the 5 year limit.

Also, the failure to disclose was a complete overlook, Do you guys think I should hire an attorney ?
 
jasoos007 said:
Jackolantern and WBH: Thank you for taking time out to shed some light on the situation.

My green card was approved in Feb 2008 so am outside the 5 year limit.

Also, the failure to disclose was a complete overlook, Do you guys think I should hire an attorney ?
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Is the lawyer who prepare your GC casae still in practice? Discusss with him for free first.

I'll say if GC is not at risk, then don't hire any lawyer. It is not worth money.
 
WBH said:
Is the lawyer who prepare your GC casae still in practice? Discusss with him for free first.

I'll say if GC is not at risk, then don't hire any lawyer. It is not worth money.
Click to expand...

Not sure where the lawyer is now a days. Don't even remember who was it, mostly had contact on phone.

I had applied through EB1 and was too busy getting all the other stuff together. Did not pay full attention.

I am worried about the green card being revoked !! What can I do to avoid that ??
 
jasoos007 said:
Not sure where the lawyer is now a days. Don't even remember who was it, mostly had contact on phone.
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(1) Get a copy of yellow pages , go to the lawyer section and go thru quickly. if your lawyer is still there, may be it can ring a bell
and you canrecall the name.

(2) Do you still have some copies left from GC process, yoru lawyers name may be on some documents

(3) File a FOIA request using thsi form (http://www.uscis.gov/files/form/g-639.pdf). You will get a complete set of everything
you file before. Your lawyer's name and how you answered question before will all be there. the downside is it may take severalk months or even up to a yera to get response but you have to wait anyany so do it immiediately
 
Jackolantern said:
In 2004 the I-485 question had the wording "been arrested, cited, charged, indicted, fined or imprisoned for breaking or violating any law or ordinance, excluding traffic violations".

So disclose the 2004 incident with your N-400, and bring documentation of the dismissal. If the interviewer says that you didn't mention it with your I-485, point out the "excluding traffic violations" clause.
Click to expand...

Jackolantern - Would this exclusion also apply to DUI? I suppose DUIs are traffic violations
 
jasoos007 said:
How about Hit and Run ?? Is that a traffic violation.
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Check out the state statute of your state. If the penal code youa re charged are listed under traffic or motor vehicle
section, then it is traffic violation in a sense. But that is not the point here. So far as USCIS are concerned, the
intent of traffic violatiion are limuted to onlyu thos etraffic vioaltion for which teh maximum penalty is just
moneyetary fine. So hit and run or DUIs shoudl be dislcosed even there is "excluding traffic violation" clause
 
You should still use the "excluding traffic violations" clause to defend yourself if USCIS makes an issue of your failure to disclose that incident. There may be enough room for interpretation to enable you to win in court, especially since it doesn't say "minor traffic violations" or "traffic infractions without criminal charges" or any other restriction on what type of traffic violations can be excluded, nor did they clarify the exclusions in the I-485 instructions.

Of course, USCIS most likely didn't intend for that clause to exclude DUI or hit and run. But also they didn't intend for the "US citizen or US national" clause on the I-9 to enable people to get away with false claims to citizenship when common sense would indicate the individual really meant "US citizen" when filling out the form and their employers believed they were US citizens. Ultimately the courts sided with the individuals, and USCIS changed the form to have separate selections for US citizen and US national.

Another aspect in your favor is that if USCIS already discovered that incident from the background checks they ran on you during your GC process, they can't use it against you now to revoke your green card because it's beyond 5 years. However you won't know if they knew about it unless you file FOIA to see your A-file.
 
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Jackolantern said:
Of course, USCIS most likely didn't intend for that clause to exclude DUI or hit and run. But also they didn't intend for the "US citizen or US national" clause on the I-9 to enable people to get away with false claims to citizenship when common sense would indicate the individual really meant "US citizen" when filling out the form and their employers believed they were US citizens. Ultimately the courts sided with the individuals, and USCIS changed the form to have separate selections for US citizen and US national.
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Not to get into another subject. But on the I-9 thing what happens if someone was a long time LPR and marked citizen-national by mistake on the I-9 form and only discovered years later when leaving the job and going over some papers in there personnel file? This is a person my dad knew and has had a green card since 10 yrs old so its not about having to lie for work. He has lost touch with this person so he does not know if they got citizenship or not.

Just curios?
 
jb1038 said:
Not to get into another subject. But on the I-9 thing what happens if someone was a long time LPR and marked citizen-national by mistake on the I-9 form and only discovered years later when leaving the job and going over some papers in there personnel file?
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If it happened years ago, it was the old I-9 form with a choice which said "US citizen or US national", and the courts have held that it's not a claim to US citizenship because it could mean claiming to be a noncitizen US national.
 
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