greencard for felon

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misbahaa

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My wife entered the US legally nearly 20 years ago as a child. She has an ITIN, I claim her on my taxes, she hasn't worked illegally since entering the country, and we have a valid marriage license in Texas. She was convicted of a second degree felony (possession) in 2008 and did the deferred adjudication rout. Her probation will terminate early this April. The offense occurred January 2008, I met her Summer 2008, we married December 2008. I have 2 questions:

1) She was a child when she came here, and remembers little about her journey. I presume she came here legally with inspection as she flew here on an international flight (most likely a visitors visa?). As this was decades ago, she doesn't have the actual passport that has the visa stamp in it. She does have a renewed newer passport, just not the original one. How can I prove that she entered legally with out that stamped passport? That can't be the only record of her entrance into the country. Where can I go to get some kind of corroborating records for such an old entry. With out that she's a full illegal and will have to leave the country for 10 years I think before she can come back in a legal manner, whereas in reality she overstayed her visa and I can simply apply for her greencard/adjustment of status.

2) How does the felony in 2008 work against her? Will this cause outright denial of my petition for her? In Texas deferred adjudication is a deceitful joke and might as well be a conviction with a big guilty stamp on your record. Unfortunately I didn't know her back then so I couldn't advise her AGAINST that. She has no other criminal felonies or misdemeanors. Since it was a felony I cant file for records to be sealed until 3 years after April. But I don't think that would make a difference because I believe USCIS can still use expunged records against you. So, how will this affect my filing for her green card? Is there a statute of limitations or a limit to how far back USCIS will count things like this? Or are these eternal?
 
I don't think you read my post fully. No offense but if the answer was that black and white I would've discovered that in my own research. We have an immigration lawyer (my sister) who claims that this isn't grounds for an outright denial but it will have some affect. I was looking for answers regarding the degree of this affect.

I should state that I'm a criminal defense attorney. I specialize in juveniles, but I know the law none the less. As for her criminal court issues:

The felony charge is an implied conviction as far as Texas employment goes, but under state law deferred adjudication is not filed as a conviction, and the case is dismissed after completion or early termination of probation and records are sealed/expunged. There's a BIG difference between a felony indictment and a felony conviction. It's about a 2-10 years of jail time and a $10,000 hole in your wallet difference. She was eligible for deferred adjudication because she was a first time offender and was in possession of a small amount.

From what the lawyer told me, crimes of moral turpitude that justify outright denial without chance for appeal are convictions on AGGRAVATED felony indictments as defined by USCIS/immigration law, and generally on the Texas state level those are first degree felonies or enhanced first degree felonies (the key being intent to sell/distribute/traffic when concerning controlled substances). Her charge was for possession of a controlled substance 4-200g which is a second degree felony, no charge of intent do sell/distribute/traffic was brought against her and as such her crime is NOT an aggravated felony in the eyes of USCIS. Plus she is a first time offender with a perfect probationary period and an appeal is warranted as opposed to outright denial. I wouldn't be applying for a green card for her if I knew it was going to get rejected and she was going to be deported (aggravated felony).....

However, I am not an immigration lawyer, and know very little about first hand experience with USCIS and immigration law in general beyond my own research. Like I said, I know the felony indictment will have an affect on USCIS' decision, most obviously that this will not be an automatic process anymore. USCIS in their infinite wisdom CAN treat a plea of guilty as a conviction IF they choose to do so, however with the appeals process and the facts of her case I believe there's a decent chance of overcoming that obstacle.

You know, there ARE people with felony indictments who gain citizenship right? People assume felony = aggravated felony. The great nation of double standards. Almost kill someone while DUI? Join our nation! Stole less than 5000 dollars? Join our nation! Couple ounces of weed? Join our nation! 1 gram of a controlled substance? Sorry! The whole crimes of moral turpitude clause is simple a legal mechanism for enabling and legalizing selective treatment of immigrants. If I was an immigration lawyer, dealing with USCIS would probably want to make me emigrate...

My original question was: If anyone had experience with lower felonies they weren't convicted of and how it affected their process, if they were approved or denied, and how old their offense was when applied.

EDIT: As for the visa question in my first post, disregard. The US Consular in her originating country can provide a copy of the application and departure papers and Homeland Security claims they can originate the I-94 equivalent issued to her on entry in 1992. Finally, they're good for something. And as for what she was thinking, my user name is not Miss Cleo, can't help you out with that one.
 
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Mr. Attorney,

Your wife has problems ahead of her, she might as well forget about the GC for couple of years, because her offense reeks deportation. If she was convicted of stealing candy at a local store, her chances of adjusting her status are almost zero. She should have committed this offense maybe 10 years ago. Sorry I couldn't offer you any better advise.
 
I didn't say anything about a green card in my second post. I'm talking about the process of obtaining an IR1/CR1 visa via filing of an I-130. And the number of years ago it happened is irrelevant. Even an expunged indictment will show up on a USCIS background check. They may put less weight on it if it's an older offense, but it's not like it would go away if she "committed this offense maybe 10 years ago." Whats the logic behind that? Then every non resident alien would just wait X number of years to apply and get in automatically...

As I said before, visa's can be denied for a conviction in a crime of moral turpitude or an aggravated felony; her indictment falls into neither category. It's a second degree felony and possession is not a crime of moral turpitude, only trafficking is. But I said that already. As such her offense only "reeks of deportation" to you. Have you taken a look at the acceptable crimes? I could trespass on candy store property, steal the candy AND vandalize the place and not be convicted of a crime of moral turpitude.

state.gov/documents/organization/86942.pdf
en.wikipedia.org/wiki/Moral_turpitude#cite_note-FAM-8
fsnews.findlaw.com/firmsite/attachments/LE6_c_checklist_WhatIsGoodMoralCharacter.pdf

Anyhow, the problems are there, but they are not insurmountable and can be dealt with with proper legal representation. WHICH brings me back to my original post. Is there anyone who has had any experience with felonies and visa/eventual GC applications who can share their experience?

And if you really want to give me a title, Mister Doctor of Jurisprudence will do just fine:)
 
Mombasa_guy said:
Your immigration attorney is just trying to milk you for nothing sweet brother. I bet he is quietly suppressing a cackle every time he eggs you on with glee (with your check safely in his pocket) to file your documents because I am pretty sure he knows you have less than a snowball's chance in hell of succeeding in your quest. I am surprised a whole so called criminal attorney such as yourself did not take the simple ten minutes tops that it takes to read the immigration statutes that define what consists of crimes of moral turpitude that preclude one from immigration benefits as well as the petty offense exception rule. Even layman such as Mombasa_guy can do that easily, man. Save your money, fire your attorney lest you waste precious time and money dude.
Click to expand...

My immigration attorney is my sister. And I'm not paying her anything. Because we're family. I mentioned that in my first post. And maybe YOU should bother to read the statutes that consist of crimes of moral turpitude. It only takes 5 minutes and is VERY clear on what is and is NOT considered a crime of moral turpitude. Possession of a controlled substance is not one of them. In case you missed the links in the previous post. Dude.

state.gov/documents/organization/86942.pdf
 
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LOLLLLLL @ Shootincans


Misbahaa, maybe you should try to call a couple of lawyers in your area, most will answer your question over the phone without charging you anything.
 
You have issues with reading. And quite frankly you're a layman, you said it yourself. Your knowledge consists of what you read in a brochure or online or hearsay and your own, singular, personal experience. You have no experience concerning the naturalization process of someone with a criminal record, so if all you're going to do is regurgitate what you think you know instead of contributing to the question I asked in the thread then please refrain. Please stop giving out (incorrect) advice in the format of facts. Your talk is bigger than your walk = don't comment on things you are not 100% sure about ie) "railroading an un-winnable case"?! You have no precedent or prior experience to make any claims like that, even if you DO feel that way. You'll do more harm than good to those who don't fact check because they'll assume you are the end all and be all of immigration law and leave it at that. Good think I don't have a lawyer who is "just trying to milk me nothing" eh:rolleyes: Hey maybe you should become a lawyer, with your vast knowledge and all.

Anyhow I got my answer from someone who actually knows something about this stuff. A second degree state felony indictment is not an aggravated felony and as such is not grounds for denial with out appeal. It is not a crime of moral turpitude. It does affect the I-1485 process which asks about controlled substances violations but not the I-130 process (which I was asking about originally, and for which a possession charge does not make her inadmissible). And in my particular case and amount of time married and passed at time of application a supplemental I-485A and I-601 with sufficient evidence will waive inadmissibility based on extreme hardship, rehabilitation, non threat to national welfare, and conditions of originating nation. It can be done, but due to her unique situation it will cost about 2000 more and we'll have to wait till next year to apply to get the time passed just right. But the upside is that it will allow us to accumulate more evidence of bona fide marital status, affidavit of support evidence, and we won't have to file for removal of conditional status on the GC since the marriage will be older than 2 years. I'm putting this in here in case anyone else down the road searches for "felony" this thread will come up and hopefully it will be of some use to them.

And last but not least, what the hell is with the sweet brother thing?! That phrase has to be surrendered when you take your oath you know that right? No Coming to America lines allowed!... anyhow thank you for the advice kaylee and to the guy who PM'ed me. I'll keep you advised of the proceedings.

PS: Your concern for my wallet is touching.
 
For it to not be an aggravated felony according to USCIS rules, it would have to be marijuana and be not more than 30g.

Failing that, there is the possibility of getting the case vacated if she was not informed of the immigration consequences of accepting the plea deal by the judge or defense attorney.

But once she gets past that hurdle, she still has to prove that she entered with inspection, which will be almost impossible given that she doesn't have the passport or I-94, and the entry is probably too long ago for the record to obtained from CBP. Does she at least have the old passport number? If she knows that, it may help CBP to locate the record if they have it.

And the 10-year ban will stop her from obtaining an immigrant visa or any other kind of US visa for 10 years after she leaves.

If you think she has a chance, go ahead and apply. But the denial of the I-485 will likely trigger removal proceedings shortly after that.
 
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I am working on getting the case vacated personally, based on misrepresentation and a 4th amendment violation, but the judge presiding over her case is up for re-election later this year and so I'm going to wait for the outcome of that before I file.

And I spoke with a buddy of mine who practices immigration law and got a SOLID answer, it is NOT an aggravated felony according to USCIS rules.

1) USCIS definitions of aggravated felony come from federal law, not state law. The definitions are drawn from 8 U.S.C. § 1101(a)(43) [ codes.lp.findlaw.com/uscode/8/12/I/1101 ]
(43) The term "aggravated felony" means -
(B) illicit trafficking in a controlled substance (as defined
in section 802 of title 21), including a drug trafficking crime
(as defined in section 924(c) of title 18);

2) That section (Title 18 Section 924c) defines a drug trafficking crime as [codes.lp.findlaw.com/uscode/18/I/44/924 ]:
(2) For purposes of this subsection, the term "drug trafficking
crime" means any felony punishable under the Controlled Substances
Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and
Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law
Enforcement Act (46 U.S.C. App. 1901 et seq.).

3) The Federal Controlled Substances Act (different than individual states' Controlled Substances Act) states:
"a person convicted under this subsection for the possession of a mixture or substance which contains cocaine base shall be imprisoned not less than 5 years and not more than 20 years, and fined a minimum of $1,000, if the conviction is a first conviction under this subsection and the amount of the mixture or substance exceeds 5 grams"
[ justice.gov/dea/pubs/csa/841.htm#a ]
and

"Any person who violates this subsection may be sentenced to a term of imprisonment of not more than 1 year, and shall be fined a minimum of $1,000, or both"
[ justice.gov/dea/pubs/csa/844.htm#a ]

Since her amount was less than 5 grams it falls under the second "Simple Possession" penalty. By definition, a crime punishable by 1 year or less is considered a misdemeanor, and 1 year or more/Death is a felony.
"(6) one year or less but more than six months, as a Class A misdemeanor;"
[ law.cornell.edu/uscode/18/3559.html ]

And to top it all off, there was a famous (at least in the immigration law world) Supreme Court case in 2006, Lopes vs Gonzales, that set a precedent for cases like this. He was a green card holder who was charged with aiding and abetting cocaine possession which is the same as cocaine possession in his state. He was charged with a felony, served time, and had deportation papers served upon his release. He appealed to the Board of Immigrant Appeals, and was denied, then Appealed to the 8th Circuit Court of Appeals and was denied, and was heard by the Supreme Court. Basically they said "Held: Conduct made a felony under state law but a misdemeanor under the CSA is not a “felony punishable under the Controlled Substances Act” for INA purposes." He won and was not deported and was PRA status and greencard reinstated.
[ supremecourtus.gov/opinions/06pdf/05-547.pdf ]

In layman's terms, a simple drug possession offense that is classified as a felony under state law but a misdemeanor under federal law cannot be a felony punishable under the Controlled Substances Act and thus is not an aggravated felony under the immigration laws. Unless a state offense is punishable as a federal felony it does not count.
[ maggio-kattar.com/practice/removal/articles/Blurb%20on%20SCt%20Decision%20in%20Lopez%20v%20%20Gonzales.pdf ]

The shocking thing is that by making that precedent, the conclusion is drawn that THOUSANDS of non-citizens have been deported in error!

My friend gave me that simple answer (the Supreme Court precedent), so we're going to wait until the marriage is 2 years old, and file for her papers. Maybe by then the case will be vacated, but if not it looks like there's a good shot of success.

Moral of the story? Adhere to the FEDERAL Controlled Substances Act, NOT your states local laws. And the whole "marijuana not more than 30g" rule is out the window, because there are other STATE felonies that are NOT Federal felonies like possession of a schedule II in the amount less than or equal to 5 grams.

As for the I-94, we contacted the US Embassy in her country of origin, and we have her original passport number, so they should be able to track it down that way. Additionally the visa office stated as a minor she wasn't responsible for her I-94, her legal guardian was. So no criminal proceedings can be taken against her for violating the rules that govern the I-94. We still have to get it though.

And she doesn't plan on leaving the country. I know the 10 year ban is in effect if she does, but she would only leave the country if she was deemed as an illegal entry, and we'll resolve that situation and prove she entered at an INS inspection point in NYC. And with the I-485A Supplemental form, it allows the AG to to adjust the status of an alien to LPR in lieu of consular visa processing while the alien remains in the united states with out necessarily having to have maintained lawful non-immigrant status as long as they were inspected upon entry, are eligible for an immigrant visa, admissible for permanent residence, and have an immigrant visa number immediately available, which she would since she's my wife and the I-130 would have been filed by then. How do you think mexicans who entered legally but have overstayed get married without having to go back to mexico?

That's all folks.
 
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Mombasa_guy said:
he..he.. I like the way you deftly avoided telling us what drugs and in what amounts she was captured like a deer in headlights snorting up. Your crumbling legalese-infested rationalizations feebly belched won't help your case man, better face reality and save yourself some heartache and wasted time down the line sweetest brother! The fact that you married a crackhead says a whole lot about you dear bro, I hope for the sake of all of us you both did not meet on a using binge :cool: Good luck in your hopeless quest and let us know when you receive her deportation letter ;)
Click to expand...

And as for you

1) Your posts have been reported. Keep it clean on the internet, it's proper etiquette. This isn't Stormfront, it's ImmigrationPortal.

2) Stop smoking pot. It's called hypocrisy when you admonish others for sins you've committed yourself. Kind of like how being a 3rd world-er yourself you now look down upon them. I don't know if you noticed, but in most Southern cities you've been issued an unofficial second class citizen card lol.

3) Tell your wife to fuc king pay her taxes. Or you'll both fear IRS more than ICE.

4) Don't day dream about dating other women, even USCIS officers.

5) Your posts seem to reek of habitual lying.

6) And when you refer to "us" that's incorrect because you are NOT a US citizen... a blue book with an eagle is far more "sweet" than green plastic freedom.

7) The fact that you would ever compare yourself to a goat in heat is disgusting.

8) Personal attacks are so unbecoming aren't they?

9) You are on ignore so I wont have to suffer through viewing more of your Uppity Negro Syndrome posts. I would take a drive through SW Houston if I was looking for that shit.
 
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misbahaa said:
How do you think mexicans who entered legally but have overstayed get married without having to go back to mexico?
Click to expand...

If you can prove legal entry, getting an AOS is not an issue on an overstay (I know of cases where people have worked illegally and got their GC through marriage). I think the point everyone is trying to make is that in your case if you cant prove legal entry (which, now, it seems possible) and have a felony offense, it would be very difficult based on normal processing rules. You are looking at a long drawn-out (years probably), expensive, (and of course, emotionally challenging) legal affair with the USCIS. Hopefully, things work out for you! Good luck!
 
misbahaa said:
And as for you

1) Your posts have been reported. Keep it clean on the internet, it's proper etiquette. This isn't Stormfront, it's ImmigrationPortal.

2) Stop smoking pot. It's called hypocrisy when you admonish others for sins you've committed yourself. Kind of like how being a 3rd world-er yourself you now look down upon them. I don't know if you noticed, but in most Southern cities you've been issued an unofficial second class citizen card lol.

3) Tell your wife to fuc king pay her taxes. Or you'll both fear IRS more than ICE.

4) Don't day dream about dating other women, even USCIS officers.

5) Your posts seem to reek of habitual lying.

6) And when you refer to "us" that's incorrect because you are NOT a US citizen... a blue book with an eagle is far more "sweet" than green plastic freedom.

7) The fact that you would ever compare yourself to a goat in heat is disgusting.

8) Personal attacks are so unbecoming aren't they?

9) You are on ignore so I wont have to suffer through viewing more of your Uppity Negro Syndrome posts. I would take a drive through SW Houston if I was looking for that shit.
Click to expand...



Mr. Attorney,

I am not sure this is a proper etiquette for the internet too!!! I mean so much swearing and degrading tone about third world countries and N words? I am sure your local bar would be thrilled that you are espousing canons of judicial conducts for attorneys in this forum. It is clear you are frustrated by this fellow, and primarily because you are new to this forum. The vast majority of people ignore Mombassa-guy because he's a nut and you will be well advised to stay clear of him too. In staying clear of him, I believe you sunk to his level will your demeaning post. Please clarify if you care to do, I am not sure you gloat in the fact that Southern states are generally racist and mean spirited to anyone NOT white or what, but if that’s the case, I would be disgusted as a lawyer that some people view themselves superior because of their skin color. Let us hope you aren’t into this racist cesspool because vast majority of people have suffered because of how they look.

Jack is correct in one aspect; you don’t commit felonies acts and expect USCIS to gloss over this fact during the filing. I admire the dedication which you have shown to this woman; I mean you are researching this case because it is clear you want her to remain here with you as your wife. I can only wish you the best and hope they won’t nail her during the GC process, because you are reasoning as a lawyer based on reading certain legal precedents, an IO might now have such a full scope and deny the case on her criminal escapades. If it goes there, then you will be forced to file appeals and it is going to cost more money, but I know you aren’t concerned about money. Good luck…
 
Anyone know what happened to this attorney and his wife? I am just wondering, because he had huge problems regarding his wife's case.
 
LOLLL. This thread makes me laugh and feel sorry for misbahaa. I think he won't ever show up here again and you won't find out about the result. I mean, this poor guy was deeply hurt by random posts by random people on internet, he probably cried all night and swore not to get on this #%&*^% website again lol
 
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