My husband was arrested for domestic and 5th degree assault against me. The pre-trail is next week. The prosectuor is offering 12 weeks of anger managment for him and 18 months of circle sentancing for the two of us to complete together. He would like to apply for citizenship but we don't know how he should plea so he doesn't have too many complications in gaining his citizenship. They were also talking about dismissing the charges once he completes the classes and cirlce sentancing. How does that effect gaining citizenship? Last option was also to have the charges dropped down to a misconduct vs. the assault. Which would be better? -- He is a good man deep down and I feel these programs will help him to get rid of his anger tenancies. Thank you for any help you can provide!!
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How to plea to a domestic and 5th degree assault charge when wanting citizenship
- Thread starter Nicbdu
- Start date
be careful there. Several points to keep in mind
(1) DV is a deportable offense as long as it meet the defnition in section 16 of title 18, United States Code)
(2) If (1) is there, sentence does not matter. Unlike the immigration laws requireing at least 1 year maximum sentence to be deportabel for CIMT, there is no minimum sentence reruiredment for DV top be deportable
(3) For the deportation purpose, plead guilty/no contest will be teh same as conviction even if the case is dimissed later
(4) If deportable based on DV is really in-evitable, the offenders can re-immigrate as long as no CIMT or aggravated felony
is not attached to DV since in this case DV is only deportable offense not an inadmissible offense.
So you should avoid falling into deportable category. This is most important. If the charge is not deportable or reduced to
non-deportable, then a conviction can still affect citizenship for 5 years but will not make your husband deportable.
http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-5667.html
(i) Domestic violence, stalking, and child abuse.-Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable. For purposes of this clause, the term "crime of domestic violence" means any crime of violence (as defined in section 16 of title 18, United States Code) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual's acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.
(1) DV is a deportable offense as long as it meet the defnition in section 16 of title 18, United States Code)
(2) If (1) is there, sentence does not matter. Unlike the immigration laws requireing at least 1 year maximum sentence to be deportabel for CIMT, there is no minimum sentence reruiredment for DV top be deportable
(3) For the deportation purpose, plead guilty/no contest will be teh same as conviction even if the case is dimissed later
(4) If deportable based on DV is really in-evitable, the offenders can re-immigrate as long as no CIMT or aggravated felony
is not attached to DV since in this case DV is only deportable offense not an inadmissible offense.
So you should avoid falling into deportable category. This is most important. If the charge is not deportable or reduced to
non-deportable, then a conviction can still affect citizenship for 5 years but will not make your husband deportable.
http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-5667.html
(i) Domestic violence, stalking, and child abuse.-Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable. For purposes of this clause, the term "crime of domestic violence" means any crime of violence (as defined in section 16 of title 18, United States Code) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual's acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.
Thank you for your thorough response. Am I understanding correct that if possible it would be best to have them drop the charges down to misconduct vs. the domestic assault charge?
Correct. And check out the maximum sentence of any charges to which the current charge is reduced. Remmeber it is
by the maximum senetnce not actual sentence by which USCIS assess severity. The maximum setence should not be
1 year or longer. This is another trick. Most state laws divide senetnce between <= 1 year and > 1 year but
USCIS cut threshold as <1 year and >= 1 year when assessing severity.
THANK YOU!!!!!!! WOW... more then I ever thought we should know. And should we still ask them to dismiss the charges once the court's requirements are met?
Of course.
Correct. And check out the maximum sentence of any charges to which the current charge is reduced. Remmeber it is
by the maximum senetnce not actual sentence by which USCIS assess severity. The maximum setence should not be
1 year or longer. This is another trick. Most state laws divide senetnce between <= 1 year and > 1 year but
USCIS cut threshold as <1 year and >= 1 year when assessing severity.
Sorry, another question. Is the sentencing set by state law and is the same of all? What would we need to do if a misconduct charge has a max sentencing of 1 year?
of course.
thank you!!!!!!
Sorry, another question. Is the sentencing set by state law and is the same of all? What would we need to do if a misconduct charge has a max sentencing of 1 year?
Then you have to determine whether it is a CIMT or how many years since your admission (your GC approval date)
But don't worry too much. If the DV charge is reduced to only a misconudct I doubt that misconduct is CIMT
(A) General crimes.-
(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
Jackolantern
Registered Users (C)
My husband was arrested for domestic and 5th degree assault against me. The pre-trail is next week. The prosectuor is offering 12 weeks of anger managment for him and 18 months of circle sentancing for the two of us to complete together. He would like to apply for citizenship but we don't know how he should plea so he doesn't have too many complications in gaining his citizenship. They were also talking about dismissing the charges once he completes the classes and cirlce sentancing. How does that effect gaining citizenship? Last option was also to have the charges dropped down to a misconduct vs. the assault. Which would be better? -- He is a good man deep down and I feel these programs will help him to get rid of his anger tenancies. Thank you for any help you can provide!!
If he pleads anything except Not Guilty it counts as a conviction under immigration law, even if the case is later dismissed. And that could result in deportation. Even if it doesn't result in deportation, a conviction like that almost surely will result in denial of citizenship unless he waits 5 years (or 3 years if you're a US citizen) after the conviction.
He needs to see an immigration lawyer before pleading to anything.
Of course.
If he pleads anything except Not Guilty it counts as a conviction under immigration law, even if the case is later dismissed. And that could result in deportation. Even if it doesn't result in deportation, a conviction like that almost surely will result in denial of citizenship unless he waits 5 years (or 3 years if you're a US citizen) after the conviction.
He needs to see an immigration lawyer before pleading to anything.
Can you explain how saying not guilty even though he did it works? Can he plead not guilty and accept the court's punishment? If he pleads not guilty would it go to trial?
Can you explain how saying not guilty even though he did it works? Can he plead not guilty and accept the court's punishment? If he pleads not guilty would it go to trial?
Plea is different from testify so that you can legally and honestly plead NOT guilty even the truth is that you are guilty.
Try something in teh middle ground. Negotiate with the prosecutor. Do not plad guilty to teh original charge and
plead guilty for something lesser if it can be offered by prosecutor.
For immigration purpose, this lesser charge should meet the folliwng condistions
(1) Not deportable domestic vioilence any more
(2) not a aggravated felony
(3) not a CIMT with possible sentence >= 1 year
Plea is different from testify so that you can legally and honestly plead NOT guilty even the truth is that you are guilty.
Try something in teh middle ground. Negotiate with the prosecutor. Do not plad guilty to teh original charge and
plead guilty for something lesser if it can be offered by prosecutor.
For immigration purpose, this lesser charge should meet the folliwng condistions
(1) Not deportable domestic vioilence any more
(2) not a aggravated felony
(3) not a CIMT with possible sentence >= 1 year
You are EXTREMELY helpful WBH. I can't thank you enough!!
Jackolantern
Registered Users (C)
Can you explain how saying not guilty even though he did it works? Can he plead not guilty and accept the court's punishment? If he pleads not guilty would it go to trial?
If he accepts the court's punishment or admits enough facts to establish guilt, it counts as a conviction under immigration law.
If he pleads not guilty it would go to court if the prosecutor wants it to go to court, unless his lawyer can convince the judge to dismiss it before trial. But there is also the possibility of the prosecution dropping the charges, which is common for misdemeanors where the evidence is not strong.
Like I said before, he needs to consult an immigration lawyer, preferably 2 or 3 who have experience with criminal cases, before pleading to anything, because citizenship and potential deportation are at risk here. This is VERY SERIOUS.
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By the way, here is Section 16 of 18 USC.
18 USC § 16 - Crime of violence defined
The term “crime of violence” means—
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
18 USC § 16 - Crime of violence defined
The term “crime of violence” means—
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
I have gotten a lot of advise (THANK YOU) and I just wanted to make sure I'm thinking correctly and have my ducks in a row for the best possible outcome for my husband to be able to gain citizenship without too much difficulty.
1. The best case scenario would be that the prosecutor and judge agree to a continuance for dismissal. That way there is no plea and no official charge that would show on his record. We would still have to disclose that he was arrested but there would be no damaging character charges seen by immigration. He would still need to complete the court ordered anger management and circle sentencing before the case could be dismissed.
2. If they do not agree to that arrangement the we would need to ask for the charges to be dropped down to a disorderly conduct vs. a domestic & 5th degree assault charge where he would plea guilty. A disorderly conduct charge has a maximum sentence of 90 days and is not seen as a CIMT therefore immigration would look at it as less severe.
Other ideas if neither of those work??
Thanks for your brain power!!
1. The best case scenario would be that the prosecutor and judge agree to a continuance for dismissal. That way there is no plea and no official charge that would show on his record. We would still have to disclose that he was arrested but there would be no damaging character charges seen by immigration. He would still need to complete the court ordered anger management and circle sentencing before the case could be dismissed.
2. If they do not agree to that arrangement the we would need to ask for the charges to be dropped down to a disorderly conduct vs. a domestic & 5th degree assault charge where he would plea guilty. A disorderly conduct charge has a maximum sentence of 90 days and is not seen as a CIMT therefore immigration would look at it as less severe.
Other ideas if neither of those work??
Thanks for your brain power!!
Jackolantern
Registered Users (C)
Having to attend those anger management classes would count as a conviction under immigration law, even if it's later dismissed.1. The best case scenario would be that the prosecutor and judge agree to a continuance for dismissal. That way there is no plea and no official charge that would show on his record. We would still have to disclose that he was arrested but there would be no damaging character charges seen by immigration. He would still need to complete the court ordered anger management and circle sentencing before the case could be dismissed.
2. If they do not agree to that arrangement the we would need to ask for the charges to be dropped down to a disorderly conduct vs. a domestic & 5th degree assault charge where he would plea guilty. A disorderly conduct charge has a maximum sentence of 90 days and is not seen as a CIMT therefore immigration would look at it as less severe.
That may be correct, but consult an immigration lawyer (or two or three) before deciding what to plead or agree to. There is a real risk of deportation here.
Having to attend those anger management classes would count as a conviction under immigration law, even if it's later dismissed.
Not necessarily. Please notte the logical operator AND for (i) an d(ii). Even if anger management class is soprt of punishment,
it seems that conviction equivaklent satill need a plead guilty or no ontests. "has admitted sufficient facts to warrant a finding of guilt" can be subjective.
The definition of the term “conviction” as follows (INA §101(a)(48) for immigration:
(A) The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo
contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty
to be imposed.
Not necessarily. Please notte the logical operator AND for (i) an d(ii). Even if anger management class is soprt of punishment,
it seems that conviction equivaklent satill need a plead guilty or no ontests. "has admitted sufficient facts to warrant a finding of guilt" can be subjective.
The definition of the term “conviction” as follows (INA §101(a)(48) for immigration:
(A) The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo
contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty
to be imposed.
Thanks WBH!! Where have you found all the of definitions you've sent for immigration law such as, "The definition of the term “conviction” as follows (INA §101(a)(48) for immigration" and "18 USC § 16 - Crime of violence defined"? I'd like to read up on them as well.
Thanks WBH!! Where have you found all the of definitions you've sent for immigration law such as, "The definition of the term “conviction” as follows (INA §101(a)(48) for immigration" and "18 USC § 16 - Crime of violence defined"? I'd like to read up on them as well.
Just google . Fo rexample type in 18 USC § 16
http://www.google.com/#hl=en&output...94,d.dmg&fp=fe4b4e71ca1abfa9&biw=1280&bih=827