Marriage Green Card application with petty theft

B

brianzhang

New Member
Hi everyone,

My background: I'm a H1b visa holder working in US, I married a US citizen recently, and now I'm applying marriage green card.

But I have one big concern of my previous stupid mistake, pls read the following:

I was arrested, charged and convicted for petty theft(408a) as I shoplifted a just $34 computer mouse in a store when I was a college student in CA in 2007, it is a misdemeanor, and there is no jail, have a $400 fine. My lawyer negociated with judge to allow me to apply for the charge reduction to trespass(602) if I completed the 18 months probation, so after I completed the probation, I request the court to change the petty theft to trespass conviction, and court approved this. Then I also request the court to expunge this conviction and I got approval by court in 2010 and finished the expunge.

I'm now filling the 485 form, and yes I will answer all the truth info of my previous criminal history, and attach all the needed court disposition paperworks and proof.

So my exact concern is: after the face-to-face gc interview, I believe the immigration offcier will approve my gc application later, BUT will it be as quick as the same as the regular case(no criminal)? Or will it be take longer (like several additional months) to get gc approval?

This concern really bugs and nerves me a lot, can anyone who has experience of this give me some expectation what will happen?

Any helpful reply are appreciated, Thanks in advance!
 
Last edited by a moderator:
The original charge (theft / shoplifting) with the 18 months probation would have prevented you from getting GC, because it was considered crime involving moral turpitude (CIMT) and the sentence was longer than 6 months. Your lawyer has done a very good job in reducing the charge to tresspass, because it wasn't CIMT and therefore the sentence threshold is 5 years.

I think you know that you need to bring the official post-expungement disposition that says no case is found. It's likely that the officer will ask about your original conviction, then you can tell him/her that it's for tresspassing and you got 18 months probation. That is not a lie, as the court document (if it hasn't been expunged) will say so. I would not volunteer any more information if I were you.

If the officer is satisfied, then you should be clear and you'll be LPR in a short time. If he's not satisfied and asks for the court minutes, then it could be trouble, which means it's time to lawyer up again. The court minutes will show the original charge.
 
Hexa said:
The original charge (theft / shoplifting) with the 18 months probation would have prevented you from getting GC, because it was considered crime involving moral turpitude (CIMT) and the sentence was longer than 6 months. Your lawyer has done a very good job in reducing the charge to tresspass, because it wasn't CIMT and therefore the sentence threshold is 5 years.

I think you know that you need to bring the official post-expungement disposition that says no case is found. It's likely that the officer will ask about your original conviction, then you can tell him/her that it's for tresspassing and you got 18 months probation. That is not a lie, as the court document (if it hasn't been expunged) will say so. I would not volunteer any more information if I were you.

If the officer is satisfied, then you should be clear and you'll be LPR in a short time. If he's not satisfied and asks for the court minutes, then it could be trouble, which means it's time to lawyer up again. The court minutes will show the original charge.
Click to expand...

I think you misunderstand what is "probation", yes, my original petty theft case's probation is 18 months, but it is probation, not the actual sentence, so the probation is Not counted as the duration of the "Not more than 6 months" of the INA law rule.

After you see my reply, if you agree with me, please give me your point of view.

Anyone else if see my understanding of "probation", please also confirm me.
 
brianzhang said:
I think you misunderstand what is "probation", yes, my original petty theft case's probation is 18 months, but it is probation, not the actual sentence, so the probation is Not counted as the duration of the "Not more than 6 months" of the INA law rule.

After you see my reply, if you agree with me, please give me your point of view.

Anyone else if see my understanding of "probation", please also confirm me.
Click to expand...
Unfortunately for immigration purposes probation or community service is considered a conviction. It's silly, but I didn't make this rule. Even if it's an arrangement where the court completely dismisses the charge after probation, it's still considered a conviction for immigration purposes. If you're really interested in the subject, you can google "conviction for immigration purposes".

For your particular circumstances it would actually be better if the case hadn't been expunged. If the case is not expunged, you will get an official court disposition that says you're convicted for criminal trespass, which is clearly not CIMT and therefore gives little reason for the officer to look further. Because it's expunged you have "no case found" or similar language on the court letter, which means the IO has to choose whether to trust you that it was just a trespass, or require court minutes to make sure.

Many people have gone successfully with expunged letters, but it's not unheard of for an IO to ask for court minutes. If you are a religious person it's time to pray for a lenient IO.
 
Sentencing...

Regarding the sentence: the term sentencing means imprisonment in this case, not probation.

Under the Petty Offense Exception, a noncitizen is automatically not inadmissible, on account of a conviction or admission of a crime involving moral turpitude, if all three requirements are met:
*s/he has committed only one crime involving moral turpitude; and
*s/he “was not sentenced to a term of imprisonment in excess of six months (regardless of the extent to which the sentence was ultimately executed)”; and
*the offense of conviction carries a maximum possible sentence of one year or less.

Thus, a person convicted of a misdemeanor first-offense CMT with a maximum of one year and a sentence imposed of six months or less is not inadmissible under the moral turpitude ground. There is no discretionary component to this rule, and the noncitizen need not seek a waiver of any kind. The statute creating this ground of inadmissibility simply has an exception.
 
I need to clear my mistake, as I have discovered more reliable information. There are usually several components to a case disposition. Example: you could be sentenced to 30 days incarceration and 1 year of probation; while 28 of those days may be suspended (so you only spend 2 days in jail), the entire 30 still count as the sentence. The 1 year of probation is not considered as a sentence for this purpose.
 
You must log in or register to reply here.
Top