marijuana conviction

I hate to state the obvious, but your case is complexed. Again, the best thing you need to do is hire an immigration and possibly criminal attorney. If you don't do something, they might send her away and you do not want to see that happening. Hopefully you can get a solution to all this. Take care
 
Man, I hate to say this but from what you said it appears that your wife is deportable from the U.S because she was convicted of possession of marijuana over 50 grams. That means if the DHS finds out about her conviction she could be deported from the U.S. and never be allowed to return.

And yes, immigration is being much more difficult now. If she applies for a replacement greencard or for naturalization they might find out about her conviction because they now do a record check whenever someone files something with the USCIS.

The only way to solve this problem would be to find an attorney to try to reopen her criminal case due to "ineffective assistance of counsel." If she reopens the case and gets the charges changed or dropped then she could be O.K.
 
She is screwed, since it was over 30 grams or more. She is going to have to see a IJ in the future, and ask for some form of refief. Chance are, she will get it. The big question is, why isn't a a citizen after all these years.



jrgm13 said:
back in 1995 i grew 6 marijuana plants with a coworker at his acerage. they only got about 12 inches tall and i gave up on them and told my coworker so. after the first frost in late september my coworker wanted me and my filipina wife of 5 years to visit his family to grill out on a sunday afternoon. my wife did not like these people but i drove over there after visiting my parents. little did i know that my coworker was working with the police because he found himself in trouble. without my knowledge he pulled these lame 6 plants and had them hanging in a shead. i never would have brought my wife there if i had known that. this is the closest that my wife came to this pot. later about 14 people were arrested for various drug crimes. i got lawyers because they charged my wife. the lawyers did nothing and in the end she pled guilty to simple possion of marijuana, to witch they said she could get citizenship. later i had to get court records and they placed the amount of marijuana at about 112 grams or so. they weighed all 6 plants and this is what branches and leaves weighed. so when i talked to the immigration lawyer, she told me that my wife should just apply for a new green card and so she did and it was good for ten years. she has over 4 years left on her green card but i see that now after 9/11 they also check green card renewals very carefully for convictions like hers. she had nothing to do with this. she will have been in the us about 23 years when she needs to renue her green card. what do you people think will happen to her? she has never smoked or drank and goes the church that she is a member of here. everyone just loves her, she has so many friends here. i hate to think that they would send her back to the philippines. i'm worried.
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Sure it isn't a agg.felony, but it is over 30 grams and there isn't a waiver for that. Two simple possession do equal a Agg.felony or another charge under 237 of the INA, but she would need a second offense. I really don't think that this will be that big of a issue. If it were, a good attorney might check to see if she was given the proper warning about how the conviction or plea might effect her immigration status

Assuming that ICE doesn't know about her and assuming her record is otherwise clean, and she has been a LPR for at least 5 years, chance are she will be o.k. I don't think you will have a issue with GMC since the incident happen in 1995/96. CIS doesn't know anything now about her crime history, but once she applies they will do a fingerprint and name search. Being able to enter\exit the US doesn't mean the government doesn't care about the conviction, it normally means that they just haven't found out about it, since most minor crimes go unreported to the NCIC system. What ever she does, don't lie to CIS about the arrest. To be honest, I wouldn't waste a dime on some bloodsucking immigration attorney until there was a problem.
 
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I was talking to a friend of mine that still works for ICE, you might still have a problem. It seems that it depends on where you are living and what the government attornies think. She might have a problem, but cancellation of removal is still a option if she was taken to immigration court.

jrgm13 said:
thanks alot mr dafortycal
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If the lawyer told her to plead guilty then he may have inadvertently done her a favour at the same time as causing her harm. If the lawyer told her to plead guilty without explaining the immigration consequences then that can possibly qualify as bad counseling aka malpractice and if none of the court papers that were signed had that in writing then she might have a constitutional technicality on her side. Padilla vs. Kennedy is one case similar to that. Doesn't matter if he wasn't an immigration lawyer he still committed malpractice and your wife's constitutional rights to counsel were violated. Drastically violated.
 
Prior to the effective date of immigration laws changes made by 1996 amendments, specifically prior to April 1, 1997, there was a waiver available under one of two variations of INA 212(c). As she plead guilty prior to the repeal of that relief, she remains eligible for it under the Supreme Court decision in the St. Cyr case. Her case was prior to the 1st mofification so the broader version applies and she qualifies.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=00-767


Immigration Court (EOIR) Press Release:
http://www.justice.gov/eoir/press/02/StCyrQA.htm

Just an excerpt, not complete:

Aliens who pleaded guilty to crimes after April 24, 1996, but prior to IIRIRA's effective date of April 1, 1997, may apply for section 212(c) relief as it existed during that time period. The version of section 212(c) that existed during that time period was the version modified by AEDPA. AEDPA restricted the availability of section 212(c) relief and made it unavailable to aliens who were deportable by reason of their convictions for certain criminal offenses, including aggravated felonies, controlled substance offenses, certain firearms offenses, espionage, or more than one crime of moral turpitude.

Aliens who pleaded guilty to crimes on or after April 1, 1997, would remain ineligible for section 212(c) relief because section 212(c) was repealed as of that date.
 
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Being that it happened so long ago, her chances of COR or a stay of deportation are pretty good, that is assuming that she was convicted of possession only. On the brightside, in Iowa the criminal record keeping sucks. Go to http://www.iowacourts.state.ia.us/ESAWebApp/DefaultFrame and do a search for her name, and see if there is a record. Some older records were destroyed, others were not upload to NCIC. Without a conviction document, it would be a harder case to prove.

The Immigration Judges in Iowa are some of the most liberal around, they don't like removing people. If you had a Immigration Law Pocket Field Guide 2009 or 2010 from LexisNexis you could look up which waiver she might qualify for. Maybe a 212(h)? The book is under $20.00 and that is a lot cheaper than asking a lawyer. That idiot Praxx should think about buying one...
BTW.... they don't go looking for people who's green card expired, so drag things out as long as possible, to build up time for GMC. Given your medical history, there might also be for cancellation of removal. If I were a betting man, I would say the odds were 70/30 or more in her favor.

To bad your not asking a question on how to get her deported, I'm more of a expert in that field.
 
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You need to do some research, but start here...


Criminal Grounds of Inadmissibility (Exclusion)

Written by Henry J. Chang

Crimes Involving Moral Turpitude

Aliens who have been convicted of, or who admit to having committed, or who admit to committing acts which constitute the essential elements of a crime involving moral turpitude, other than purely political offenses are excludable under INA §212(a)(2)(A)(i)(I). To be excludable based on an admission, an alien must voluntarily admit all of the facts which constitute the crime and it must be considered a crime under the laws where it occurred. An attempt or conspiracy to commit such a crime is included in this ground.
Moral turpitude refers to conduct which is inherently base, vile or depraved, contrary to the accepted roles of morality and the duties owed between men and men, either one's fellowman or society in general. Neither the seriousness of the offense or the severity imposed determines whether or not a crime involves moral turpitude.

Political offenses are not included in this ground of exclusion. Political offenses are generally considered to be acts taken with others as a part of war, insurrection or rebellion in an attempt to replace the legal authority.

Two exceptions to this ground of exclusion appear in INA 212(a)(2)(A)(ii):


The ground does not apply where the alien has committed only one crime of moral turpitude, the crime was committed when the alien was under 18 years of age and the crime was committed (and the alien was released from confinement to prison or a correctional institution imposed for the crime) more than five years before the date of application for a visa or other documentation and the date of application for admission to the United States.

The ground does not apply where the alien has committed only one crime of moral turpitude, the maximum penalty possible for the crime for which the alien was convicted or to which the alien admits having committed or of which acts the alien admits having committed which constitute the essential elements of the crime did not exceed one year of imprisonment and, if the alien was convicted of the crime, the alien was not sentenced to imprisonment for a term greater than six months, regardless of the extent to which the sentence was ultimately satisfied.
Crimes Involving Controlled Substances

Under INA §212(a)(2)(A)(i)(II), aliens who have been convicted of, or who admit to having committed, or who admit to committing acts which constitute the essential elements of a a violation or conspiracy to violate any law or regulation of a State, the United States or a foreign country relating to a controlled substance as defined in s. 102 of the Controlled Substances Act. An attempt or conspiracy to commit such a crime is included in this ground of exclusion.

Multiple Criminal Convictions

Under INA §212(a)(2)(B), an alien who has been convicted or two or more offenses (other than purely political offenses), regardless of whether or not the convictions arose from a single trial or arose from a single scheme of conduct involving moral turpitude and whether or not the offenses involved moral turpitude, is excludable if the aggregate sentence of confinement actually imposed is five years or more.

Controlled Substance Traffickers

An alien who a consular or immigration officer knows or has reason to believe is or has been an illicit trafficker in a controlled substance or is or has been a knowing assister, abettor, conspirator or colluder with others in the illicit trafficking of a controlled substance is excludable under INA §212(a)(2)(C).

Prostitution and Commercialized Vice

An alien is excludable under INA §212(a)(2)(D) if he or she:


is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of the application for a visa, entry or adjustment of status;

directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa, entry, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives or (within such 10 year period) received, in whole or in part, the proceeds of prostitution; or

is coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution.
Assertions of Immunity from Prosecution

Under INA §212(a)(2)(E), aliens involved in serious criminal activity who have asserted immunity will be excludable if:


they have at any time committed a serious offense in the United States;

immunity from criminal jurisdiction has been exercised with respect to that offense;

they have departed from the U.S. due to the offense and the exercise of immunity; and

they have not submitted fully to the jurisdiction of the court of the U.S. that has jurisdiction with respect to that offense.
Foreign Government Officials Who Have Engaged in Particularly Severe Violations of Religious Freedom [Added by International Religious Freedom Act of 1998, Act of October 27, 1998, Pub. L. No. 105-292, 112 Stat. 2787 - applies to aliens seeking to enter the United States on or after October 27, 1998]


According to INA 212(a)(2)(G), any alien who, while serving as a foreign government official, was responsible for or directly carried out, at any time during the preceding 24-month period, particularly severe violations of religious freedom, as defined in section 3 of the International Religious Freedom Act of 1998, and the spouse and children, if any, are inadmissible.

Significant Traffickers in Persons [Added by Trafficking Victims Protection Act of 2000, Pub. L. No. 106-386, Victims of Trafficking and Violence Protection Act of 2000, Act of Oct. 28, 2000, 114 Stat. 1464.]

According to INA §212(a)(2)(H)(i), any alien who is listed in a report submitted pursuant to section 111(b) of the Trafficking Victims Protection Act of 2000 [sec. 111(b), div. A, Pub. L. No. 106-386], or who the consular officer or the Attorney General knows or has reason to believe is or has been a knowing aider, abettor, assister, conspirator, or colluder with such a trafficker in severe forms of trafficking in persons, as defined in the [sic] section 103 of such Act, is inadmissible.

According to INA §212(a)(2)(H)(ii), any alien who the consular officer or the Attorney General knows or has reason to believe is the spouse, son, or daughter of an alien inadmissible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity, is inadmissible.

According to INA §212(a)(2)(H)(ii), clause (ii) shall not apply to a son or daughter who was a child at the time he or she received the benefit described in such clause.

Money Laundering [Added by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 ("USA PATRIOT Act"), Act of Oct. 26, 2001, Pub. L. No. 107-56, 115 Stat. 272.]

According to INA §212(a)(2)(I), any alien: (i) who a consular officer or the Attorney General knows, or has reason to believe, has engaged, is engaging, or seeks to enter the United States to engage, in an offense which is described in section 1956 or 1957 of title 18, United States Code (relating to laundering of monetary instruments); or (ii) who a consular officer or the Attorney General knows is, or has been, a knowing aider, abettor, assister, conspirator, or colluder with others in an offense which is described in such section; is inadmissible.

Waiver of Certain Criminal Grounds
Under INA §212(h)(1), an immigrant waiver is available for most criminal grounds of exclusion. However, no waiver is permitted for murder, criminal acts involving torture or controlled substance trafficking offenses. Further, the immigrant waiver available for controlled substance offenses not involving trafficking under INA §212(a)(2)(i)(II) is limited to a single offense involving the simple possession of 30 grams or less of marijuana.

There are two waivers available under INA §212(h)(1). A waiver is available under INA §212(h)(1)(A) if the immigrant establishes that:


the activities for which the alien is excludable occurred more than 15 years before the date of the alien's application for a visa, entry or adjustment of status (unless the alien is excludable for prostitution under INA §212(a)(2)(D)(i) or INA §212(a)(2)(D)(ii), in which case the 15 year time period is not required),

the admission to the United States of such alien would not be contrary to the national welfare, safety or security of the United States, and

the alien has been rehabilitated.
A waiver is also available for close family members under INA §212(h)(1)(B) if the immigrant establishes that he or she is the spouse, parent, son or daughter or a United States citizen or an alien lawfully admitted for permanent residence and that the alien's exclusion would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son or daughter of such alien.

No waiver shall be granted in the case of an alien who has previously been admitted to the United States as a permanent resident if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for at least 7 years immediately preceding the date of initation of proceedings to remove the alien from the United States. No court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver. [This restriction on waivers is effective on September 30, 1996 and applies to any alien who is in exclusion or deportation proceedings as of such date unless a final administrative order in such proceedings has been entered as of such date.]
 
i'm getting suicidal. i've told the va twice....but they won't let me in
 
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jrgm13,

Stop tripping. All the evidence indicates your wife is good considering the circumstances, supreme court ruling, length of time etc. Just chill!
 
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