Good Moral Character/Vacated Charges

[geomark]

I plead not contest to Assault with a Deadly Weapon in 1992 and was given probation. I had my charges vacated by a judge last year.
I was able to renew my green card last year as well. I've been in this country since 1973.
If I apply for N-400, will my previous charge be a problem, even though it was vacated and dismissed? I've answered all of the questions honestly on the N400.
Thanks.

 

[Bobsmyth]

Contact an experienced lawyer in criminal law to determine the full extent of your vacated conviction and how it affects your chances for naturalization. There are too many case variables to look over before getting any type of accurate advice.

 

[baikal3]

I plead not contest to Assault with a Deadly Weapon in 1992 and was given probation. I had my charges vacated by a judge last year.
I was able to renew my green card last year as well. I've been in this country since 1973.
If I apply for N-400, will my previous charge be a problem, even though it was vacated and dismissed? I've answered all of the questions honestly on the N400.
Thanks.

Hmm. Under the federal law, the fact that a particular criminal case was eventually dismissed/vacated is irrelevant: if you pleaded guilty or no contest to a particular charge, it still qualifies as a conviction for immigration purposes.

In your place I would not file N-400 before talking to an immigration lawyer (maybe even more than one). An Assault with a Deadly Weapon conviction may qualify as aggravated felony under federal immigration law, depending on the particulars:
http://cbocalbos.wordpress.com/category/conviction-for-assault-with-a-deadly-weapon/
http://www.criminalandimmigrationlaw.com/_peek_AF_A.php#as_deadly

An aggravated felony conviction makes an alien permanently ineligible for naturalization and it also makes the alien deportable (my understanding that this provision applies retroactively). See
http://www.law.cornell.edu/uscode/8/usc_sec_08_00001227----000-.html

So you'd really want to make sure that your 1992 conviction does not qualify as aggravated felony before filing N-400.

 

[geomark]

Thanks. My attorney who I hired to vacate my charges assures me that it should not be a problem. I am writing on these forums for other opinions obviously. I don't want to take any chances.

One question though: How is it that the INS was able to renew my green card? If they renewed it, wouldn't that mean that also getting a naturalization should be approved or are they different agencies who issue green cards and issue citizenships?

I will probably take your advice and consult with another attorney. It's just difficult to find one that specializes in both immigration and criminal cases.

 

[Bobsmyth]

One question though: How is it that the INS was able to renew my green card? If they renewed it, wouldn't that mean that also getting a naturalization should be approved or are they different agencies who issue green cards and issue citizenships?

GC renewal and naturalization are two separate entities handled by USCIS. The approval of GC renewal doesn't guarantee naturalization approval.

You can search the aila for immigration lawyers specialized in criminal law:

http://www.ailalawyer.com/

 

[baikal3]

Thanks. My attorney who I hired to vacate my charges assures me that it should not be a problem. I am writing on these forums for other opinions obviously. I don't want to take any chances.

One question though: How is it that the INS was able to renew my green card? If they renewed it, wouldn't that mean that also getting a naturalization should be approved or are they different agencies who issue green cards and issue citizenships?

I will probably take your advice and consult with another attorney. It's just difficult to find one that specializes in both immigration and criminal cases.

Was the attorney whom you hired to vacate the charges an immigration lawyer or a criminal lawyer? Criminal lawyers do not really know the immigration law and often do not understand the immigration consequences of various criminal cases. You need to discuss your situation with immigration lawyers.

Regarding renewal of GC: when a green card is renewed, they only do a fairly superficial criminal background check, mostly to see if there are any recent arrests/convictions.
By contrast, when you apply for naturalization, your entire file is looked at in great detail by the immigration officer handling the case and conducting the naturalization interview.
So the fact that you were able to renew your GC in the past (by the way, when was this?), does not imply that you won't have problems at the naturalization stage. As I said, an aggravated felony conviction makes one permanently ineligible for naturalization and makes one deportable - so you really need to find out if that applies to your case.

 

[geomark]

I renewed my green card successfully last October (2010). This was after my charges were vacated. My attorney was a criminal attorney who specialized in immigration cases related to criminal charges. I hired him because he successfully vacated similar charges in the past. Unfortunately, he is in another state (issue occurred in CA now in NV) and communication was limited. However, I have the certified court order stating that the charges are "dismissed in furth of justice". Proceedings Terminated.

 

[BigJoe5]

I plead not contest to Assault with a Deadly Weapon in 1992 and was given probation. I had my charges vacated by a judge last year.
I was able to renew my green card last year as well. I've been in this country since 1973.
If I apply for N-400, will my previous charge be a problem, even though it was vacated and dismissed? I've answered all of the questions honestly on the N400.
Thanks.

This will not be a problem for naturalization.

It predates the aggravated felony bar BUT probably would not even qualify as an aggravated felony. Even it it were you would not be deported because the charge would still be eligible for a waiver under INA 212(c). DHS will not bother even trying to issue an NTA over this, they will naturalize you instead.

 

[geomark]

Thank you BigJoe5! It sounds like the waiver would be a good defense in the worst case scenario. This gives me much more confidence going forward.

Can you just confirm that INA 212(c) is still in effect as of today? I think I read somewhere that it was replaced, then reinstated. Is that accurate?

 

[Jackolantern]

Generally, a vacated conviction makes it null and void as far as immigration consequences are concerned.

However, there are exceptions depending on the basis for vacating the conviction.

See http://www.criminalandimmigrationlaw.com/CILU_8_10_03.php

 

[BigJoe5]

Thank you BigJoe5! It sounds like the waiver would be a good defense in the worst case scenario. This gives me much more confidence going forward.

Can you just confirm that INA 212(c) is still in effect as of today? I think I read somewhere that it was replaced, then reinstated. Is that accurate?

http://www.justice.gov/eoir/press/04/StCyrReleaseFinalRule2004.pdf (The 212(c) press release.)

http://www.justice.gov/eoir/vll/ILA-Newsleter/ILA 2011/vol5no4.pdf (Most recent Item)

http://www.justice.gov/eoir/vll/benchbook/templates/212(c) Standard.htm (Includes a link to the templates used by IJ's to write their decisions.) You can't get better info than this!

 

[geomark]

After reading through all of the documents, it seems I have a really good chance for a successful waiver (if it even comes to that point). I believe that in and of itself the crime I was plead no contest to may constitute a crime of violence which would in turn can be referred to as an aggravated felony, however, I understand that the following will help my case:

8 CFR 1212.13(f)

An alien whose convictions for one or more aggravated felonies were entered pursuant to plea agreements (I plead no contest) made on or after November 29, 1990, but prior to April 24, 1996, (my case was in 1992) is ineligible for section 212(c) relief only if he or she has served a term of imprisonment of five years or more for such aggravated felony or felonies (I only got probation), and (ii) An alien is not ineligible for section 212(c) relief on account of an aggravated felony conviction entered pursuant to a plea agreement that was made before November 29, 1990

So, from my understanding, I could use this as a defense if it ever came to it. Am I understanding all of this correctly? Thanks again everyone for the help.

Edit: Also, aren't you supposed to be advised of immigration consequences at the time you plead no contest or guilty to anything that can render you deportable? I was never advised as such? I assume this can also be used as a defense.