have a appeal hearing next week.

duparas

Registered Users (C)
Hello everybody! This is my story in short.Back in 1997 i had been arrested twice for desorderly conduct of using obsceene language(violation).i admitted that in my application for green card and received the green card in 2001 without problem. In december of 2002 i commited a CMT of leaving the scene of an accident with injury.I pleaded guilty and in march of 2004 got a verdict of 5 years probation.in april of 2009(5 years statuory period passed) i applied for naturalization(admitting all the facts of the arrests).on july ,2009 i passed the exams and 2 weeks later received the letter of denial.it said:
"in the present case,you were on probation for four years and ten months of five year statutory period or more than half of five years period immediately preceding the date of filing your application for naturalization,Your series of arrests and convictions show a lack of reformation of character.Under the circumstances,you have not established good moral character necessary for naturalization.Accordingly,your application is denied".
i have written an affidavit,where i ecplained all the circumstanses,also i collected a letters from my employer,people who know me and US Congress Repr. from my area and sent everithing with the form N-336 requesting hearing.Today i have received a letter to come for the hearing next tursday(less than a week notice).My attorney cannot be present,becouse he stock up with the other appointments.And now i have a dilemma:-to postponea hearing(and no guarantee that the short notice will not happen again,-or go just myself without lawyer.If i go by myself - will i have any chanses of positive outcome?and if i get denial again - when can i reaplly?they did not say when - on first denial letter.thank you.
 
In december of 2002 i commited a CMT of leaving the scene of an accident with injury.I pleaded guilty and in march of 2004 got a verdict of 5 years probation.in april of 2009(5 years statuory period passed) .

They may not coutn 5 years from the date of offense but probation or setence can not extend into 5 year statutory period.
So I think you have a tough chance to have your denial overturned. Since you already hired a lawyerpehras already paid him,
you just go ahead otherwise I would suggest you don't watse your money on appealing but rather wait for a few years
to reapply.

If your crime is CIMT and maximum possible sentence is 365 days or longer then it can make you deportable if it is within 5 years after
admission depending on the timing of yoru offesne relative to yoru admiision date (admission date be your GC approval date or your original
physically entry into USAS is another matter). I remmeber in such case there is a case about which date counted as the date of admission.
If is it agreen card approval date, your offense may be still within 5 years. If it is your first physical entry into your USA, your offense may
be outside taht 5 years of window so you may be safe from deportation. If deportation is not an issue, then you will be eligible to repplay
after a few years (unless your offense also meet the criteria of aggravated felony which I doubt)

Again please read the following definition very carefully and see if it applies to you

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

(i) Crimes of moral turpitude.-Any alien who-

(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 245(j) ) after the date of admission, and

(II) is convicted of a crime for which a sentence of one year or longer may be imposed.

is deportable
 
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WBH,-thanks for the respond.No,deportation not an issue here - CMT happened 8 years after admission.And for all i know - they suposed to count 5 years statuory priod from the date od sentence,not the date of the end of probation?and another question - how meny years to wait to reapply in case of second denial?
 
For immigration purposes it is normally 5 years after your probation, because in essence your still dealing with that crime if you have to see a probation officer. Your probation was part of your sentence, therefore in the eyes of USCIS they only show 6 months of good moral character. I would see what your lawyer has to say, but I think you will have a hard time beating this one. You may want to reapply in 5 years time and see what happens then. Best of luck.
 
Don't even think about going there without your lawyer. Get the hearing postponed or find a new lawyer. Or at least show up at the hearing and explain that you had less than one week's notice for the hearing and were unable to obtain a lawyer quickly enough so you request it to be postponed.

And it is not necessary to wait 5 years after the probation has ended. 5 years after the conviction is normally sufficient, as long as the probation has ended by that time. But what they are saying here is that you were on probation for much more than half the statutory period, which is the main reason for the denial. I don't know if there is any law or court precedent that supports a denial for that reason.
 
thank you,Jackolaten!I do have a lawyer,who was with me on original interview back in july!But he can not go on such a short notice,-he said he can find a replasement lawyer for me,-or the other option is to postpone.as to your last suggestion - they said "..pursuant to 8C.F.R. 316.10(a)(2),CIS evaluate claims of good moral charakter on case-by-case basis,taking into account...the standarts of the average citizen in the community of residence".
 
Having been on probation does not preclude you from showing GMC, but USCIS may use past probation in the determination of GMC per 8 CFR 316.10(c).

Since you hired a lawyer who is representing your appeal, why are you asking on this board if you should go alone or postpone? Did you not ask your lawyer how to proceed?

Unless you are very familiar with immigration law, going to the hearing alone is not a good idea. It's not just a matter of submitting a few letters with appeal..your case will be heard by an immigration judge, and having a lawyer present will allow for the proper arguments to be presented.



Btw, did the letter state that your crime was a CIMT or did you conclude that by yourself?
 
thank you,Bobsmyth!I've said before - that my lawyer can't go with me on such a short nitice - he has another trial that day,that's why i asked the forum - if it's a good idea to go alone.From what i see -it's not,so i will find another lawyer ot postpone and i'm very thankfulll to this forum for that advice!Regarding your question - the denial letter never stated my crime as CIMT,-i concluded it myself(have been with 4 different lawyers before july's interview - they all agreed with me on that).
 
thank you,Bobsmyth!I've said before - that my lawyer can't go with me on such a short nitice - he has another trial that day,that's why i asked the forum - if it's a good idea to go alone.
Yes, you mentioned your lawyer wasn't available for that day. But he/she should at least be able to provide you with guidance on the issue (ie: postpone vs self representation).
 
You right,Bobsmith,-yeah,-i just talk to him,-he would call me back Monday - and will either get substitute lawyer for me or postpone.So the question of selfrepresenting is solved.But should i still asked the forum for advice if i have the lawyer?I do beleive in second opinion and that is nothing wrong with that.And i still did not clear the question - if i will get denial again,-in my case - when can i reappy?And another one,-in the case of denial - will i have the chances with the federal court?Thank you.
 
You right,Bobsmith,-yeah,-i just talk to him,-he would call me back Monday - and will either get substitute lawyer for me or postpone.So the question of selfrepresenting is solved.But should i still asked the forum for advice if i have the lawyer?I do beleive in second opinion and that is nothing wrong with that.And i still did not clear the question - if i will get denial again,-in my case - when can i reappy?And another one,-in the case of denial - will i have the chances with the federal court?Thank you.

Yes, you can always ask for second opinion on a forum, but since your lawyer is a professional specialized in the area of immigration matters his/hers advice should count for more than advice you get here.

If your case is denied again, you can then file an appeal through the Federal court system.Your chances for success in the Federal court system will be determined by your ability to show that you were a citizen of GMC despite what USCIS has determined. Again, this is something that is best discussed with your lawyer.

Finally, as for reapplying..you can reapply immediately (unless your denial says otherwise) , but it doesn't guarantee that USCIS won't find you lacking GMC once again. Their whole argument is based on two things: your previous convictions and the fact that you were on probation the majority of the statutory time. Your defense must counter USCIS's argument and show that despite the convictions and probation, you do not lack GMC.
 
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Thank you,Bobsmyth!So in my understanding from USCIS respond which i stated in first post,-they have sort of established a rule - that at least 50% of the 5-year statury period has to be not on probation?That means - for me SAFELY to reapply is October,2011?
 
Thank you,Bobsmyth!So in my understanding from USCIS respond which i stated in first post,-they have sort of established a rule - that at least 50% of the 5-year statury period has to be not on probation?That means - for me SAFELY to reapply is October,2011?
No, it's not a established rule..GMC determination is subjective and can therefore vary from applicant to applicant. In your case the IO subjectively felt that you lack GMC since you were on probation more than half of your statutory period. Another IO might not have come to the same conclusion.
 
No, it's not a established rule..GMC determination is subjective and can therefore vary from applicant to applicant. In your case the IO subjectively felt that you lack GMC since you were on probation more than half of your statutory period. Another IO might not have come to the same conclusion.
The appeals board may also have a different conclusion, if there is no hard law or precedent that requires denial based on being on probation for more than half the statutory period.
 
Jackolantern,good point.Is there any way to find out if such a precedent has taken place?And another question - if there was such a precedent,-that precedent is guideline for the particular field office,where it took place or it goes for the entire nation?thank you.
 
The appeals board may also have a different conclusion, if there is no hard law or precedent that requires denial based on being on probation for more than half the statutory period.

Or they may agree that GMC determination is subjective and therefore precedent law is not applicable.
 
Hello again!My appeal was denied .it says:"during the statutory period your conduct and acts appear not reflect a roform of character..blah-blah.'basically,the woman who interviewed me asked onle 2 questions during 8 minutes while kept readind my papers.That dispite my lawyer asking her just to ask me more.So i've got the same b.s. letter like a first time.Now i'm looking for lawyer to help me to petition the federal appeal court.What do you think,people,-will i have more chanses there?thank you.
 
how old were you in 2002 were the crime was committed?? and were you advised of your immigration consequenses when you took the guilty plea??
 
Hello again!My appeal was denied .it says:"during the statutory period your conduct and acts appear not reflect a roform of character..blah-blah.'basically,the woman who interviewed me asked onle 2 questions during 8 minutes while kept readind my papers.That dispite my lawyer asking her just to ask me more.So i've got the same b.s. letter like a first time.Now i'm looking for lawyer to help me to petition the federal appeal court.What do you think,people,-will i have more chanses there?thank you.
Yes, I figure you'll have a better chance in an appeal, as it doesn't look like you got a fair and adequate hearing. However, appealing it in Federal court is expensive and there is usually a long wait (more than a year). It's probably better to just wait until 2012 and reapply when you're 3 years beyond the end of probation.
 
Hello again!My appeal was denied .it says:"during the statutory period your conduct and acts appear not reflect a roform of character..blah-blah.'basically,the woman who interviewed me asked onle 2 questions during 8 minutes while kept readind my papers.That dispite my lawyer asking her just to ask me more.So i've got the same b.s. letter like a first time.Now i'm looking for lawyer to help me to petition the federal appeal court.What do you think,people,-will i have more chanses there?thank you.
What was the basis of your appeal?In other words, what argument or evidence did you have as part of appeal?
 
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