Misdemeanor conviction is a NO for citizenship?

[JACKIE77]

Hi.
In June now I am completing 5 years with a green card and before I apply I have a question.
Back in February 2007 I was convicted on a misdemeanor charge and given 3 years probation, no prision time. I fulfilled the probation and never had any incident while on probation, besides one traffic ticket which I went to traffic school.
Because it has not been 5 years since I got charged and convicted, should I wait until 2012 to file for citizendhip to not get DENIED ?
I would appreciate any help.
Thanks.

 

[vimarket]

No dont wait. File first, you may want to use a lawyer, but file already. Not everyone with conviction gets denied, they have to look at other things as well. Also, since you have stayed out of trouble you may be fine. Good luck.

 

[baikal3]

Hi.
In June now I am completing 5 years with a green card and before I apply I have a question.
Back in February 2007 I was convicted on a misdemeanor charge and given 3 years probation, no prision time. I fulfilled the probation and never had any incident while on probation, besides one traffic ticket which I went to traffic school.
Because it has not been 5 years since I got charged and convicted, should I wait until 2012 to file for citizendhip to not get DENIED ?
I would appreciate any help.
Thanks.

That depends on the specific nature of the charge of which you were convicted. What exactly was the offense in question?


Certain kinds of misdemeanor convictions can make you deportable, depending on the particulars, e.g. some drug-related convictions, domestic violence, and some others. A 3-year probation sentence actually sounds fairly hefty for the first-time offender, so whatever you were convicted of must have been reasonably serious. When you submit an N-400, you have to worry not just about the possibility of N-400 being denied but also about potential deportability. So with any reasonably serious criminal conviction it is certainly a good idea to check in advance what the possible immigration implication might be before filing N-400, and to consult an immigration lawyer.

 

[JACKIE77]

Details of the charge

The long history is, I worked in a big company and thought I had some friends. Some of them I knew stole things from the company. One of the guys got arrested his house raided and a full truck of items was taken form his house. Apparently he made a deal and pointed finger at a lot of people, me included. I was arrested at work and charged with Ca 496(A)pc Possession of known stolen property over $400 and at the same time they raided my house. They raided everyone's house and apprehended the stolen goods and I had in my house 3 items I knew it had belonged to the company and one of my supposed friends had given to me. Because I was the only one who had only a few items, my charges did not sticky as a felony and I got it off with a misdemeanor conviction and 3 years probation.
I knew it was a big mistake having something I knew it was stolen, but I never thought something would happen to me.
So, that's my story.

 

[baikal3]

The long history is, I worked in a big company and thought I had some friends. Some of them I knew stole things from the company. One of the guys got arrested his house raided and a full truck of items was taken form his house. Apparently he made a deal and pointed finger at a lot of people, me included. I was arrested at work and charged with Ca 496(A)pc Possession of known stolen property over $400 and at the same time they raided my house. They raided everyone's house and apprehended the stolen goods and I had in my house 3 items I knew it had belonged to the company and one of my supposed friends had given to me. Because I was the only one who had only a few items, my charges did not sticky as a felony and I got it off with a misdemeanor conviction and 3 years probation.
I knew it was a big mistake having something I knew it was stolen, but I never thought something would happen to me.
So, that's my story.

Probably this conviction did not make you deportable, but I suggest that you consult with an immigration lawyer to make sure - and do so before you file N-400 (even if you file N-400 next year or even later).

Assuming that you are not deportable, my impression that your chances of having your N-400 approved if you file earlier than 5 years after the conviction are pretty slim. The conviction does fall within the 5 year statutory period most relevant for the GMC determination.
According to 8 CFR 316.10(b)(2)(i), a conviction for a crime involving moral turpitude within the 5 year statutory period precludes the finding of good moral character. There is an exception for a single conviction for a "petty" offense, given by INA section 212(a)(2)(A)(ii)(II). A "petty offense" is defined there as follows:
"the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed)."
I am not sure if the last clause applies to probation sentences, but if it does, your 3 year probation exceeds that 6 months limit which would make your conviction not a petty offense. When you consult a lawyer about deportability, ask about this as well.

Moreover, in your case the situation is further complicated by the fact that the California statute under which you were convicted, Ca 496(A)pc, can be used for either a felony or a misdemeanor charge, so it is not completely clear how to apply the "the maximum penalty possible for the crime of which the alien was convicted [..] did not exceed imprisonment for one year" clause in this case.


Even if it turns out that your conviction technically qualifies as a "petty offense", the IO adjudicating the N-400 application still has wide discretion in making GMC determination, and with a conviction involving a rather lengthy probation sentence, it seems unlikely to me that the IO would exercise favorable discretion here. IMO, if you are not deportable, it is better to wait until full 5 years pass after the conviction took place, and only submit N-400 then. (Of course, if you are deportable, it may not be a good idea to submit N-400 at all)

 

[poongunranar]

Certain kinds of misdemeanor convictions can make you deportable, depending on the particulars, e.g. some drug-related convictions, domestic violence, and some others.

Are you sure? It is not the case unless that offense is classified as Felony for Immigration Purposes. FYI.

 

[Jackolantern]

Are you sure? It is not the case unless that offense is classified as Felony for Immigration Purposes. FYI.

It's true that some crimes which are misdemeanors under state law are classified as "aggravated felonies" in immigration law, which leads to deportation as a penalty.

 

[baikal3]

Are you sure? It is not the case unless that offense is classified as Felony for Immigration Purposes. FYI.

Yes, I am sure. You can read the relevant portion of 8CFR 12.II.IV.1227(a)(2) and judge for yourself:
http://www.law.cornell.edu/uscode/8/usc_sec_08_00001227----000-.html

There are several sections there that make an alien deportable regardless of how exactly (misdemeanor or felony) the convictions in question are
classified.

For example, this applies to multiple criminal convictions for CMIT:
"(ii) Multiple criminal convictions Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable. "

What matters for this section is if the crimes in question involve moral turpitude and that there are more than one such convictions; the classification (misdemeanor or felony) is irrelevant for this provision. Thus if someone has two misdemeanor convictions for CIMTs is deportable (provided the crimes in question did not arise out of a single scheme of criminal misconduct).

The preceding provision similarly makes no distinction between misdemeanor and felony convictions:
"(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 1255 (j) of this title) 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. "

The primary qualifier in (II) is what the maximum possible penalty for a particular crime is, not whether it is classified as a felony or a misdemeanor.

Similarly, the provision regarding drug-related offenses makes no distinction between felony or a misdemeanor convictions:
"(B) Controlled substances
(i) Conviction Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable. "

The same is true for the section dealing with crimes of domestic violence.

 

[WBH]

It's true that some crimes which are misdemeanors under state law are classified as "aggravated felonies" in immigration law, which leads to deportation as a penalty.

Deportability of Certain crimes do not involved sentence times (maximaum or actual). They typically
incldue drug related, firearm offense, domestic offense.

In fact we alknow failure to report change of address is atually a deportable offense but it is only a msideamnor punishable by up to 1 month in jail and a fine.

Another tricky issue is: immigration laws define felony as a crime punishable by 1 year or more
and state define felony as a crime punisiable by more than 1 year. So if you are convicted of a crime
that is punishable by up to 1 year , tghen it is a misdemeanor by the defnition of state but for purpose
of immigration, that is a felony due to ONE DAY overalpping.

 

[poongunranar]

Yes, I am sure. You can read the relevant portion of 8CFR 12.II.IV.1227(a)(2) and judge for yourself:

Friend, I respectfully disagree and that's OK.

As I said, It is not the case unless that offense is classified as Felony for Immigration Purposes. FYI.

 

[baikal3]

Friend, I respectfully disagree and that's OK.

Based on what exactly????????

Did you actually bother to read my post??? And did you bother to read the sections of 8CFR 12.II.IV.1227(a)(2) that I quoted????

FYI: if you want your opinion to be taken seriously, you need to actually present detailed justified arguments, based on the text of the relevant laws and regulations, and not simply state your opinion without providing any justification for it.