Honest Answers Wanted! JOHNNYCASH!!

T

Talk2Me

Registered Users (C)
Five and a half years ago, after the hearing of a case, an individual was issued a restraining order for one year. The attorney on the case said since this individual was not arrested, not charged, neither was there any arraignment nor a conviction, there will be no record. The hearing lasted less than 3 minutes. The order was never violated. Now, this individual believes the order has expired (and I agree).

How should this individual proceed with answering these questions on the I-485 form:

(1) Have you ever knowingly committed any crime of moral turpitude, or a drug-related offence for which you have not been arrested?

My plan is to advise this individual to answer NO. First a restraining order is not a crime... is it? Also, the keywords for my answer are underlined: The reason for the protective order was out of ignorance or "without knowledge" of what constitutes harrassment. My understanding of have not been is that it is not the same as were not. In other words, "have not been" may still be on-going, but "were not" implies without an arrest, it was heard and has expired.

(2) Have you ever been arrested, cited, charged, indicted, convicted, fined or imprisoned for breaking or violating any law?

OK. Now for this question I have no answer whatsoever! I believe the individual was cited when the initial temporary protective order papers were delivered. BUT was this citation for breaking/violating any law?

Lastly, will this restraining order show up in the Name Check process of the I-485? Also, should the Green Card process be successful, will there be cause for any worries five years later when this individual is up for naturalization?

Again, my tentative answer is NO. The individual was not fingerprinted at any time.

Please, direct/guide me on these questions. Thank you.
 
Restraining orders are routinely entered in the National Crime Information Center (NCIC) system. It does not require a fingerprint match to show up.

People generally don't get brought into court and a restraining order will not be issued for NO REASON. Someone filed a complaint and the law enforcement agency and court acted on that complaint. There is a record.

To succeed in immigration, never lie about something that if made known would not prevent granting a benefit because the LIE will usually prevent attainment of the benefit. Have a restraining order issued is not going to prevent adjustment or naturalization. VIOLATING such an order will get one deported. Fraud, MISREPRESENTATION or concealment of a material fact will always be held against you in immigration. IF a waiver is required for any "fraud or misrep." the waiver might not be granted so it is best not to put oneself in the position of requiring one when it is not required to begin with.

Include a supplemental statement of the basic facts and the honest position that the applicant is uncertain how to answer these questions. The interviewing Officer will determine the correct box to check on the form and make a notation to clarify the situation.

Have you ever read any of the thousands of immigration cases out there from the BIA and all the Circuit Courts? People do a heck of alot more and still get status and naturalization BUT many others get zilch because of lying about stupid stuff.
 
BigJoe, thank you for your detailed answer and frankness.

However, is receiving a restraining order a crime that was knowingly committed? Also, I am not sure that USCIS utilizes NCIC for background checks - they use FBI name check, fingerprint, and IBIS. This case looks complicated and fragile... I may have to refer this individual to another more competent professional.

Additional comments are welcome...
 
Ok, so restraining order is not a crime. The individual was never arrested. However, there are grey areas surrounding how to address these questions. So, please, what would be the best pieces of advice on these two questions on Form I-485:

(1) Have you ever knowingly committed any crime of moral turpitude, or a drug-related offence for which you have not been arrested? (Yes/No)

(2) Have you ever been arrested, cited, charged, indicted, convicted, fined or imprisoned for breaking or violating any law? (Yes/No)

Thank you.
 
The answer would be NO to both those questions if they did not violate the order and there is no other criminal issue apart from the order.
 
The answer to both questions above is NO. A court (whether a family court or a criminal court) to have issued a restraining order against someone doesn't mean such person has committed any kind of crime or s/he was cited/charged/indicted/convicted in violation of any law. A restraining order proceeding (even in a criminal court) is a civil in nature. The main purpose of issuing a restraining order is to stop a possible crime from occurring in the future. That's why most of the time it's issued even if there is never been a finding of domestic violence, and its given almost 98% of the time to females when they request for it even without any finding of domestic violence. It's sad but that's how its issued in the US. It could be because the laws in the US protect children first and then females.

A restraining order (even an outstanding/valid/un-expired one) would NOT prevent any immigrant from adjusting status or being naturalized. However, keep it in mind the following crucial facts about a restraining order in context to immigration issues-

(1) USCIS (and any other law enforcement agency in the US) would 100 billion percent come to know about a restraining order if there is EVER a restraining order issued against even if such a restraining order has been dismissed/expired or not valid anymore thru their extensive background check in IBIS system. There is a permanent record of all restraining orders even if such a restraining order gets dismissed later in the future like thru an appeal process or modification of it. It will show up in there that a restraining order was issued on so and so date and by so and so court and state but it will also show up-a dismissal of it if it was dismissed. So, do not even think to lie about it if asked.

(2) Violation of a restraining order is a crime (but not having a restraining order in itself) , and violation of it would be a sure ground to be deported.

(3) Be fully prepared (with a full documentary record) to be questioned about it at the interview for adjusting status and also at the time of being naturalized. USCIS officer might like to see the full paperwork about it to get convinced, and a supervisory approval will be needed to close out an application for permanent residency/naturalization.

There is nothing to worry if someone has/had a restraining order issued upon, but there is all to worry if that restraining order was ever been violated.

Good luck
 
Last edited by a moderator:
I wish to thank BigJoe, Jackolantern, and Johnny for your invaluable responses. I am grateful!
 
So, I contacted the attorney that represented me on this case to obtain any court documents. He said he checked the court index, and he found nothing. Although I have answered NO to both questions above, I still want to prepare for any eventualities by being fully prepared. My two questions:

1. I am contemplating contacting the court directly to source for any paperwork, but this attorney was emphatic in telling me that there was nothing on the court index 1997 till date. Do you think I should still go ahead and do this?

2. What is the procedure to source for court records/paperwork out-of-state?

Thank you.

JohnnyCash said:
The answer to both questions above is NO. A court (whether a family court or a criminal court) to have issued a restraining order against someone doesn't mean such person has committed any kind of crime or s/he was cited/charged/indicted/convicted in violation of any law. A restraining order proceeding (even in a criminal court) is a civil in nature. The main purpose of issuing a restraining order is to stop a possible crime from occurring in the future. That's why most of the time it's issued even if there is never been a finding of domestic violence, and its given almost 98% of the time to females when they request for it even without any finding of domestic violence. It's sad but that's how its issued in the US. It could be because the laws in the US protect children first and then females.

A restraining order (even an outstanding/valid/un-expired one) would NOT prevent any immigrant from adjusting status or being naturalized. However, keep it in mind the following crucial facts about a restraining order in context to immigration issues-

(1) USCIS (and any other law enforcement agency in the US) would 100 billion percent come to know about a restraining order if there is EVER a restraining order issued against even if such a restraining order has been dismissed/expired or not valid anymore thru their extensive background check in IBIS system. There is a permanent record of all restraining orders even if such a restraining order gets dismissed later in the future like thru an appeal process or modification of it. It will show up in there that a restraining order was issued on so and so date and by so and so court and state but it will also show up-a dismissal of it if it was dismissed. So, do not even think to lie about it if asked.

(2) Violation of a restraining order is a crime (but not having a restraining order in itself) , and violation of it would be a sure ground to be deported.

(3) Be fully prepared (with a full documentary record) to be questioned about it at the interview for adjusting status and also at the time of being naturalized. USCIS officer might like to see the full paperwork about it to get convinced, and a supervisory approval will be needed to close out an application for permanent residency/naturalization.

There is nothing to worry if someone has/had a restraining order issued upon, but there is all to worry if that restraining order was ever been violated.

Good luck
Click to expand...
 
Last edited by a moderator:
You should CERTAINLY contact the court by yourself to get any paperwork related to yourself than taking the attorney's word alone. And if you have any index/docket number than it will surely be in the court's system.

People can contact any court even from being out-of- state, but you need to call them first to ask the process, fee and other requirements to make such a request.

If I'm not wrong then I remember you having mentioning thru private messaging that all this occurred in juvenile court, if so then you CERTAINLY don't have to worry about it because any kind of proceeding in a juvenile court doesn't impact on someone's immigration status in any fashion. It wouldn't make me surprise if you don't find any record of your case if all this occurred in a juvenile court because many juvenile courts seal the record automatically.

Good luck...
 
Talk2Me said:
So, I contacted the attorney that represented me on this case to obtain any court documents. He said he checked the court index, and he found nothing. Although I have answered NO to both questions above, I still want to prepare for any eventualities by being fully prepared. My two questions:

1. I am contemplating contacting the court directly to source for any paperwork, but this attorney was emphatic in telling me that there was nothing on the court index 1997 till date. Do you think I should still go ahead and do this?

2. What is the procedure to source for court records/paperwork out-of-state?

Thank you.
Click to expand...

Johnny, you are awesome! Everything you have said is true - it was not a juvenile court, afterall. One last question: Do I inform my current lawyers about this? I am cautious about telling them because they may want to answer one or both questions differently, may be to set me up for more payments in the proces. Moreover, I believe in your guidance more. I am yet to file... do I tell them or just wait till the interview time comes? Thank you!
 
Johnny, just one last word from you:

The greencard application in question is by employment. Two questions:

(1) Given the restraining order, will an interview be ordered?
(2) Should an interview be ordered, should the restraining order be mentioned before any questions about it? Clearly, if it comes up, there is NO denying it, but should it be mentioned before it comes up?

Thank you.
 
A green card application thru employment basis normally gets approved without an interview in 99% of the time. So it is very much possible and there is a very high chances that your application will be approved without an interview. Before approving the application, adjudication officer will do a background check in the system, and then s/he will come to know about the restraining order because restraining order will show up there. And then it will entirely be up to the officer as to whether or not to ask you to come for an interview. If officer would like to know more about the restraining order so that s/he could note on the file with documents then s/he will certainly ask you to come for an interview; otherwise not because it will show up there that restraining order was dismissed. In either case, you have nothing to worry about. Just do not disclose anything about it until you are specifically asked for it. Having a restraining order is not a crime so to say that you should have voluntarily disclosed about it. Just keep all the documents ready if you were asked to present at the time of interview.

Good luck.
 
You must log in or register to reply here.
Top