N-400 Application with a criminal background

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Gecomatal4

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N-400 Application with a criminal background **UPDATE: VICTORY!!!**

We really could use some help and advice here. Sorry this is long!

First, some background. My husband came to this country as a 3 yr old and has resided here for the last 38 years. Now, I'm not going to make excuses for the choices he made as a teen and young adult, but suffice it to say, he had a tough childhood, coupled with undiagnosed dyslexia which made school torture for him.

He grew up in Massachusetts and spent much of his teen years in and out of trouble. Officially, we can only find documentation of an arrest for breaking and entering, when he was 16.

At 18 (as an adult), he and a bunch of friends were driving around town with a loaded weapon. I know...not smart. He was charged with felony unlawful possession of a firearm and sentenced to 1 year. He served six months and was released on good behavior.

At the time...this was not a problem for his immigration status.

As many of you know, a law was amended in 1996 (?) which broadened the category of felonies which could lead to an immigrant being deported. DH's felony now fell under that category.

When DH was released from prison, he began to turn his life around. Unfortunately, he made another stupid stupid choice and married a woman who, turns out, is a terrible alcoholic and just all around trouble. She is also self-injurious (and yes, there are hospital records which support that claim). In 1996, the two of them were having a loud argument when a neighbor called the police. The police, upon arriving, saw DHs ex-wife with marks and welts and arrested him on suspicion of DV, despite her claims that they were self-inflicted (I've seen the police report). Charges were later dropped.

Believe what you will of the DV arrest...because some folks will see that and assume the worst of my DH and I understand why and get that. I'm telling you, he was not and has not ever been domestically violent.

That's not to say he hasn't made stupid choices. A few months after the DV arrest, he was involved in a bar fight with his ex-wife's brother. The two of them (he and his brother in law) were arrested and given a municipal summons for tumultuous behavior. He was fined $75 and that was it. This was NOT a criminal case, and does not show up when you do a records search for him. It was the equivalent of a disturbing the peace ticket.

DH divorced his ex-wife and a couple of years later...he and I met, married and turned our attention to his immigration issues.

Our first step was to hire an attorney to deal with the felony deportable conviction. She successfully had the conviction vacated on the grounds of improper legal proceedings.

From there, we successfully applied to renew his LPR card.

Then we turned our attention to citizenship, knowing that the vacated felony could still otherwise come back to haunt him. In 2007, he applied. He had the fingerprinting, and then we received a letter requesting documentation of the felony arrest and 1996 DV arrest. We went all over both MA and RI obtaining arrest records, court records, etc. The letter stated we needed to provide documentation for any arrest we had not mentioned. So we attempted to obtain DHs juvenile record.

We were told from multiple sources that in MA you cannot have your juvenile record without hiring an attorney to unseal it. We went back and forth with the keeper of records in the town where he was always in trouble. Finally, we went above her and requested a letter stating the record could not be released.

With that letter in hand, and all of the records we were able to obtain, DH had his interview. During the interview, he informed the IO that he had a juvie record but could not have access to it and he showed the IO the letter. But it was not a major point in the interview and DH thinks the IO may have overlooked it.

We thought we were good! We had tried very hard to make sure we gave them everything and disclosed everything. We were shocked, therefore, to receive a denial based on poor moral character. The evidence of poor moral character? They state that DH purposefully witheld disclosure of his 1987 arrest for B&E and therefore, he had lied and therefore he was of poor moral character.

Now again...he was a juvenile in 1987 and he didn't even remember the arrest! Certainly, he did not purposefully withold the information. (You might be wondering...how does a person not remember when they were arrested. Remember, he was in trouble a lot as a youth, but also, DH is dyslexic and has a difficult time remembering details and dates and whatnot).

We could appeal the decision...for an additional $600. Our attorney advised us to not waste the money, if we really could put it to better use. She informed us that rarely does she ever see a decision reversed. We decided to go ahead and wait five years and try again.

So that's where we are now. This time, we have since relocated to upstate NY. DH went and had his learning disability formally diagnosed, obtained GED tutoring and then successfully completed a high school diploma program. It has been nearly 20 years since he was in any kind of trouble and he's a markedly different person now, than he was before.

He applied for citizenship this year, had the fingerprinting and in early June, he sat for his interview. This time he repeatedly stated to the IO that he had a juvenile record...he did not know the specifics...he gave her documentation of his learning disability, and the letter stating he could not have his MA juvie records.

He came out of the interview with the IO. She informed me that she not only still needs his juvie records, but she also needs a certified court disposition for the municipal bar fight incident! She gave him 30 days.

So the municipal bar fight incident...I've called a number of different people and they've all said the same thing...the record can't be had...it's too old and they don't have it. All they have is the arrest record. I asked them to send me a letter stating the record is no longer available. They have refused, stating they can't do that. Finally, I was able to convince somebody to send me a letter, but it won't be certified or have any kind of court seal on it and I don't know if it will suffice.

The juvie records? After doing some serious googling, I learned of a department in MA called the Commissioner of Probation. Through them, I was able to request DHs juvenile record (I spoke with the Commissioner and he told me that it's a huge misnomer in MA that you can't have your juvie record and even the attorneys don't necessarily know what they're talking about)...but again, it does not have a court seal and I'm not sure it will be sufficient. Plus, it only has the b&e on there! DH is pretty sure he was detained a lot more than just during that B&E. Why would only that one incident be on the record?

What if there are others and DH can't remember them, but USCIS finds them? It's not like we're intentionally trying to withold this information! We're doing everything we can to satisfy their document requirements!

We have brought DHs former attorney back on board, but even she isn't really sure what to do about the juvie records, other than petitioning to have the complete file unsealed. But there isn't time for that at this point.

We head to Buffalo on Monday for an info-pass appointment to see if possibly the IO might be able to talk with us about the paperwork we have and whether or not that will be sufficient for her. Or perhaps she can extend the amount of time she gave him to get the documents. If she can extend the time, maybe we can re-open the juvenile record and get the documents we need.

We're just not really sure what to do and how to handle this. I'd hate to see DH declined for citizenship AGAIN because of stuff that happened 30 years ago!

Anybody have any advice or suggestions?

**UPDATE** Scroll down to see our victory news!!!
 
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Anybody?

We're debating whether it's worth our while to even make the trek out to Buffalo tomorrow to speak with an immigration officer. Seems like it's probably a waste of time and we're not going to get any concrete answers from them anyways.
 
You won't get reliable answers from them for something like this. If you want to know if the documentation is sufficient, submit it as is and they'll ask for more if it's insufficient.

When did he get his green card? Was it before or after the firearms arrest that occurred when he was 18?
 
Jackolantern said:
You won't get reliable answers from them for something like this. If you want to know if the documentation is sufficient, submit it as is and they'll ask for more if it's insufficient.

When did he get his green card? Was it before or after the firearms arrest that occurred when he was 18?
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That's pretty much what we're thinking. We're concerned that, once we submit the documents we do have...they'll say it's insufficient and then refuse him citizenship on that basis. If they do, I'm not really sure what we can do from then anyways. If we cannot obtain the documents they want, and we cannot obtain a CERTIFIED letter stating we cannot have the documents USCIS wants...and if USCIS chooses to refuse him citizenship on that basis...I mean, where do you go with that?

As for when he received his LPR status...I'm not sure. I'm not sure what his status was when he was 18 and he doesn't remember. Remember, he came over as a 3 yr old. His family did not seek citizenship until many years later and he was too old by then to qualify automatically based on their citizenship. If I had to guess...when he was arrested at 18, he was probably an LPR. What else could he have been, if he hadn't already received his adult green card by that point?

We officially renewed his LPR after his firearms conviction was vacated. He was anxious as all get out, going through the process...but they didn't blink an eyelash.
 
Gecomatal4 said:
We officially renewed his LPR after his firearms conviction was vacated. He was anxious as all get out, going through the process...but they didn't blink an eyelash.
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Did you dislcose the firearm convitction during the greencard renewal process?

http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-5667.html

(C) Certain firearm offenses.-Any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18, United States Code) in violation of any law is deportable.
 
Sorry if that posted twice...I didn't realize I was in moderation?!?

Editing because my answer still is in moderation.

Anyways...the answer to your question is, yes...we did disclose the firearm conviction when he applied for LPR. I typed up a bit more about it, but it'll show up when my posts are out of moderation.
 
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Gecomatal4 said:
That's pretty much what we're thinking. We're concerned that, once we submit the documents we do have...they'll say it's insufficient and then refuse him citizenship on that basis.
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If it's insufficient they'll most likely ask for more instead of an immediate denial.

As for when he received his LPR status...I'm not sure. I'm not sure what his status was when he was 18 and he doesn't remember.
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Look at his green card. The "resident since" date will show when he first obtained LPR status. Was that when he was under 18? If yes, did either parent become a US citizen before he turned 18?

Remember, he came over as a 3 yr old. His family did not seek citizenship until many years later and he was too old by then to qualify automatically based on their citizenship. If I had to guess...when he was arrested at 18, he was probably an LPR. What else could he have been, if he hadn't already received his adult green card by that point?
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He could have been illegally present, or he could have had a valid visa through his parent(s), or he could have been in the midst of adjustment of status for the green card process. Could be anything.
 
Jackolantern said:
If it's insufficient they'll most likely ask for more instead of an immediate denial.


Look at his green card. The "resident since" date will show when he first obtained LPR status. Was that when he was under 18? If yes, did either parent become a US citizen before he turned 18?



He could have been illegally present, or he could have had a valid visa through his parent(s), or he could have been in the midst of adjustment of status for the green card process. Could be anything.
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Without digging his card out to check, if I remember correctly, he did obtain LPR status prior to turning 18. I believe he obtained it as a small boy.

His mother did not obtain citizenship until DH was over the age of 18. It is unclear whether his father ever obtained citizenship, as he left the family a few months after they immigrated here. DH last saw or heard from his dad when he was 3 1/2 years old. We did some tracking of him a couple of years ago. He is now deceased (as of 2006). He relocated across the country and remarried. We reached out to his wife and she refused to respond.

Ironically...she had shown the letter we sent to a friend of hers. The friend, feeling bad that the wife wouldn't respond, wrote back to us in Portuguese, explaining that the wife was jealous (or whatever) and that we could speak to an old friend of DHs dad. She gave us his name and we tracked him down and DH had a good long conversation with the man and learned a lot about his dad. It gave him some peace and closure.

But anyways, I digress. I imagine we could always reach out to that old friend and see if he knows...but I'm not sure the father's immigration status would have ever come up in general conversation, kwim?

Any other way we could find out his dad's immigration status? Because if his dad naturalized before he was 18, that would solve a whole boatload of issues.
 
Gecomatal4 said:
Any other way we could find out his dad's immigration status? Because if his dad naturalized before he was 18, that would solve a whole boatload of issues.
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His father's naturalization wouldn't make a difference in this case, because deriving citizenship through a parent's naturalization requires living in the custody of the naturalized parent.
 
That stinks. DH said he doubts his dad ever naturalized anyways. He doesn't think his dad would have had the financial means or the know-how.

We're hoping for one last document to arrive today and then we'll mail every thing in.

Honestly, I don't see why they need to court dispositions for a municipal disturbing the peace issue and for his juvie records. They were years and years ago. What difference does the court disposition make?

There are people flocking into this country illegally and they're granted all kinds of benefits. But this man works hard, loves and supports his family...is here legally, pays taxes and has done so for decades. And because he screwed up in his youth, he's given the third degree when he wants to become a citizen. Does it count for nothing that he turned his life around, going against the high rate of recividism for teenage offenders?

Anyways...I just can't believe what they're putting him through.
 
They don't want to give him citizenship because of his criminal record. So they're making him jump through hoops that he may not be able to jump through, hoping that will stop him from becoming a citizen.

Don't be surprised if they still deny him after he submits everything they ask, and they may even initiate deportation for that firearms conviction. Yes it was vacated, but USCIS is allowed to interpret guilt for vacated or dismissed cases in certain situations, particularly if the dismissal/vacating was based on procedural reasons rather than the evidence.
 
Jackolantern said:
They don't want to give him citizenship because of his criminal record. So they're making him jump through hoops that he may not be able to jump through, hoping that will stop him from becoming a citizen.

Don't be surprised if they still deny him after he submits everything they ask, and they may even initiate deportation for that firearms conviction. Yes it was vacated, but USCIS is allowed to interpret guilt for vacated or dismissed cases in certain situations, particularly if the dismissal/vacating was based on procedural reasons rather than the evidence.
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I had actually written about this in my response which went to moderation. I've done some reading on the whole vacated conviction issue and there seems to be a difference of opinion (legal and otherwise) on whether or not an immigrant can still be deported. My understanding is that the general consensus is that an immigrant cannot be deported if the conviction was vacated on technical grounds. I did speak with DHs attorney about this last week and she assured me that it's unlikely they will attempt to deport him AT THIS POINT. Because his trial was improperly conducted, and because he had not been read his alien rights prior to pleading no contest, she does not believe he would be at risk of deportation. Obviously, he would not have pled no contest, if he knew that by doing so, he'd be deported. Furthermore, at the time of his conviction, his firearms violation would NOT have resulted in deportation. He did not become deportable until 1996, when the law concerning deportable convictions was broadened and allowed to be applied retroactively. This is my understanding of the situation, anyways, and from what I understand, that change in the law made for a heck of a hassle for a lot of immigrants who had prior criminal issues but had long since turned their lives around.

However...that's not to say USCIS can't change their minds on the whole matter. When he first had his conviction vacated, that was good enough to avoid deportation...period. Since then, they've stated that they can deport an immigrant, if the conviction was vacated for any other reason other than technicality. In other words, if a judge vacates a conviction so an immigrant can avoid deportation, than USCIS can still deport.

This is why citizenship is so important to us. It gives DH an added layer of protection from deportation.

I understand that they see his criminal record and wish to deny him citizenship on that. But why, when he has clearly turned his life around and has stayed out of trouble for years? I'm pretty sure we can all point to decisions we've made as youth that were stupid and dangerous and irresponsible. Yes...he was more trouble than most of us. But to permanently disqualify him on the basis of his youthful stupidity...what is the purpose of this? We're not talking about somebody who tried to kill somebody, or even had drug issues (he's always been clean...he is randomly drug tested because of his career). We're not talking about somebody who continues to demonstrate a lack of moral character. If moral character is the question here...if that is the basis for which they wish to deny him citizenship...what more does he need to do to demonstrate that his moral character has changed for the better, and has done so for at least the last two decades?
 
Gecomatal4 said:
Sorry if that posted twice...I didn't realize I was in moderation?!?

Editing because my answer still is in moderation.

Anyways...the answer to your question is, yes...we did disclose the firearm conviction when he applied for LPR. I typed up a bit more about it, but it'll show up when my posts are out of moderation.
Click to expand...

I still don't get it. You disclose it during the GC renewal process or GC application process? If it is the later
you may benefit from this matter of rainford rulling by immigration appeal board

http://www.justice.gov/eoir/vll/intdec/vol20/3191.pdf
 
No, it was disclosed during his LPR renewal process. The vacated conviction was not an issue at all during the LPR renewal. They didn't even blink.

And it didn't appear to be an issue during his first (and even 2nd) citizenship application. They nailed him in the first citizenship application for not disclosing a specific arrest as a juvenile. One which he had forgotten the details of, and could not obtain specific details due to MA law preventing him from having his juvenile record.

This second time applying for citizenship, they're still demanding he provide court dispositions for the juvenile record and now, they're also requesting court dispositions from a municipal issue (the bar fight...otherwise known as tumultuous behavior).

They haven't even said anything about the vacated conviction. Not yet anyways.
 
Well...his Massachusetts juvenile record is on its way. A true, attested copy. I finally found the right places to call and they "went down into the basement" to dig out the handwritten record.

Now we're back to square one with the disorderly conduct/tumultuous behavior arrest from 1997, which was handled in municipal court. The town/court that handled it has been a bear to deal with. Last week, the municipal court clerk told me that her superior and the records keeper of that town were going to send us a letter stating the record no longer exists. This would have been sufficient to satisfy USCIS requirements, according to the paperwork they sent us.

A week and a day or two has gone by and no letter. So I called to follow up today. Well the superior and the records keeper both have no idea what I'm even talking about! As far as they knew, they were sending a redacted copy of the arrest record, which I already had. I don't know how many times I've told them that I need the COURT record. Needless to say, the record isn't being sent and neither is a letter and they were not even aware that they were supposedly sending me a letter.

It gets better though. The municipal court clerk had taken DHs USCIS case number down and was supposedly attaching it to the file being sent. I find out today, she had attached his case number to SOMEBODY else's file, and then mailed it to Buffalo! Apparently!

Now she's not returning my calls, the superior is gone until Monday and so is the records keeper (and he's stated several times, he doesn't have the court record, only the police record).

This paperwork is due by July 12th! I don't know what else we can do. They are apparently unwilling to send a letter stating the file cannot be found.
 
**UPDATE**

Yesterday afternoon, my husband's USCIS case status updated online, from "Request for evidence" to "Oath ceremony". YAAAAAAY! We still don't really believe it!
 
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