N-400 Application With Dismissed and Expunged Arrest Records

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playmaker

Registered Users (C)
I became a Permanent residence in 2001. I applied for citizenship in 2006, I did fingerprints but I had to withdraw after I was arrested twice in one month. I sent a letter to withdraw and the request ws granted.

Since then, my two arrests have been dismissed. One was for domestic violence with my wife, the case was dismissed.....The motion to dismiss letter says "Upon review of all facts..............., it has been determined that the state is unable to make a prima facie case".

The second case was for prostitution (police sting), this one was also dismissed through a pre-trial diversion program where my attorney and the prosecutor made a memorundum of agreement without any plea. all i did was to attend Solicitors class/counselling for one day and 30 hours community service and my case was dismissed.No fines or probation and i did not go before the judge.

An immigration lawyer advised me that I should expunge the arrests after the statute of limitation has expired and then apply because it will look better even though i have to list them. I have expunged them, I have the expunction ordes for both of them but i also have the arrest report and disposition that I took before I expunged. I have a letter from my county saying no records of arrest exist even though there was a record of arrest before I expunged.

How will this arrest affect my citizenshi?they both occured in march of 2006. Should i send the letter showing no arrest with the application or the expunction orders? I did criminal background with FBI and the State, the both did not show any arrests. I travelled abroad over December, the immigration did not have any issues with me, i entered smoothly.

Please advise and your contribution will be highly appreciated
 
Two Immigration lawyers told be it looks better when the record is expunged. Thats why i waited to expunge them. Now background check with FBI that I did with Nursing school at L1 identity solutions and the one I did myself at the same place came out clean.
 
playmaker said:
Two Immigration lawyers told be it looks better when the record is expunged. Thats why i waited to expunge them. Now background check with FBI that I did with Nursing school at L1 identity solutions and the one I did myself at the same place came out clean.
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The USCIS depend upon at least three things to know applicant's crmiminal background -- (1) FBI FP check (2) FBI name check
(3) applican'ts disclosure. It does not matter if they find out by only one method or 2 method or all three methods.
You have to disclose it even if FBI FP check and bname check are clean.

If expungement look better, it looks better only the IO figures only non-serious crimes for which teh oofender has been reforced
are expunged by order of a judge so that your violation is only minor. But such reasoning is not by law but only by individual IO's personal
thinking.

So I really don't know why your immigration lawyers told you it looks better if the record is expunged unless they think you do not need to disclose but you do.
Only a few days ago here we discussed a thread about someone who did not disclose expundged record and got into trouble.
He got "no disclose" advice from a crminal lawyer and that advice is for other purpose because the OP of that thread did not tell his crminal alwyer
the purpose is for immigration. But your immigration lawyers should not give that kind of advice so far as I can see.

Again expungement may possibily make matter look better perhaps to individula IO's personal feeling but there is no imigratrion law
or USCIS regulation that required expundged records to be regardes as less serious than the same record which has not been expunged yet.
The N400 form specifically says , as I quote
"You must answer Yes to the following questions, if applicable, even if your records were sealed or otherwise cleared of
or if anyone, inclduing a judge, law enforcement officer, or attorney, told you that you no longer have a record"
 
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Thank you so much for taking time to explain in details!! I have no idea why he recomended that i wait for expungement to be approved but two years have elapsed and I am now about to apply. Do you think the 2 dismissed arrest will affect myN-400 application process?
 
playmaker said:
Thank you so much for taking time to explain in details!! I have no idea why he recomended that i wait for expungement to be approved but two years have elapsed and I am now about to apply. Do you think the 2 dismissed arrest will affect myN-400 application process?
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Both are dismissed. Did you plead guilty to any of these two charges? The second one , though dismissed, still
looks like a conviction for immigration purpose. I just don't know if it make any differences to the IOs whether
is it true conviction in crminal court or just a conviction equivalent by immkigration? Many says some IOs
may be so ignorant they do not know this. They think if a case is dismissed, then the person is not convicted
for whatever purpose.

But it is very hard to predict. I'll say if you don't care about money, there is no hardm if you apply. Otherwise
you can wait until 2011 when yoru records are outside 5 year sttutory period.

Another thing: make sure neither of yoru offense is deportable. Check out the following defnition of deportable offense.
If deportation is not an issue, then the worse thing is is you lose $ 675 dollars. If deportation is an issue, the
worse thing is $675 plus deportation

http://www.uscis.gov/propub/DocView/slbid/1/2/65?hilite=

Especially check out if your DV offense meet the following criteria or not and check out if you were convicted or not for the
immigration purpose even thopugh it was dismissed in crminal court.


(E) 6/ Crimes of Domestic violence, stalking, or violation of protection order, crimes against children and.-


(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.




(ii) Violators of protection orders.-Any alien who at any time after entry is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable. For purposes of this clause, the term "protection order" means any injunction issued fo r the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding.
 
I have done a lot of research on the pre-trail diversion, it is not a conviction from immigration purposes because 1) I did not take a plea 2) I did not admit to anyone that i commited the crime 3) I did not go before the judge and I did not pay a fine or do probation. Infact, my criminal attorney is also an immigration lawyer and he assured me that its not a conviction. However, like you said, some IO are ignorant and that could help or cause problems. Infact last week i spoke to an immigration lawyer an he said my second case (prostitution) is not a conviction under immigration laws but he warned me that they have many ignorant IO who can think its a conviction thereby delaying my citizenship but not denied ultimately.
 
playmaker said:
I have done a lot of research on the pre-trail diversion, it is not a conviction from immigration purposes because 1) I did not take a plea 2) I did not admit to anyone that i commited the crime 3) I did not go before the judge and I did not pay a fine or do probation. Infact, my criminal attorney is also an immigration lawyer and he assured me that its not a conviction. However, like you said, some IO are ignorant and that could help or cause problems. Infact last week i spoke to an immigration lawyer an he said my second case (prostitution) is not a conviction under immigration laws but he warned me that they have many ignorant IO who can think its a conviction thereby delaying my citizenship but not denied ultimately.
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The defnition of conviction for immigration purpose is defined in INA 101


(48)(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.
 
Yes. for i) the judge or jury did not play any role, i did not take nolo contender nor did i admit any facts and for ii) the judge did not order any form of punishment, penalty, or restraint. It was just an agreement between my lawyer and the prosecutor and judge did not sign it because i have the form titled "Memorundum of agreement" with me.

The only reason i agreed to the pre-trial diversion is because it was going to cost me more time and money than one day counsilling. i was also a fulltime student with no time to go to court.
 
playmaker said:
I have done a lot of research on the pre-trail diversion, it is not a conviction from immigration purposes because 1) I did not take a plea 2) I did not admit to anyone that i commited the crime 3) I did not go before the judge and I did not pay a fine or do probation. Infact, my criminal attorney is also an immigration lawyer and he assured me that its not a conviction. However, like you said, some IO are ignorant and that could help or cause problems. Infact last week i spoke to an immigration lawyer an he said my second case (prostitution) is not a conviction under immigration laws but he warned me that they have many ignorant IO who can think its a conviction thereby delaying my citizenship but not denied ultimately.
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You have to figure how to answer questions to Part D Q 16-21.

In my opinion, based upon what you explanined, answer should be

Q 16: Yes
Q17: Yes
Q18: Noi
Q19: Unsure
Q20: No
Q21:No

The trick is Q19. I beleive the intention of Q18 is about true conviction in crminal court and Q19 is about no conviciton in crminal court but pootentially a conviction equivalent for immigration purpose. It does mention diversion as an example so it seems you should answer Yes to Q19 but I am not sure an Yes to Q 19 is equivalent to conviction or not. Q19 is not anotehr way to answer whether one meet the following
(1) and (ii)

(48)(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!!Thats exactly how I answered the questions. Q19 I answered NO for the same reason you explained because there are different types of diversion programs, where some are considered a conviction for immigration pursposes and I was never placed in the pre-diversion program, I just entererd voluntarily under the memorundum of agreement. Q18 Ofcourse i said No because i have never been convicted as per immigration laws. The only one you did not mention was Q16 Have you ever commited a crime or offense for which you were never arrested, my answer was NO because I do have a traffic citation but I took that as a violation and not an offense.No sure!!

Thank you so much for your quick and kind replies....Be blessed!!
 
Prostitution....one hell of a colorful character dude....forgot about passport what about aids
 
tombaan said:
Prostitution....one hell of a colorful character dude....forgot about passport what about aids
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OP is 'safe' as it was a police sting and they got him before he could 'do' anything. :)

However, if OP availed himself of these 'services' on other occasions, should he answer 'Yes' to 'Have you committed a crime where you weren't arrested'
 
playmaker said:
.

The only one you did not mention was Q16 Have you ever commited a crime or offense for which you were never arrested, my answer was NO because I do have a traffic citation but I took that as a violation and not an offense.No sure!!
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You must have meant Q 15. Q15 "Have you ever commited a crime or offense for which you were never arrested?"" should be interpreted as
"Have you ever commited a crime or offense for which you were never arrested or cited?" So no matter what you think of your traffic ticekt
as, you shoudl answer No to Q 15 because you were cited. and Q15 should be reserved for serious crime. You can not answer Yes and
then explain to the IO "Today I drove 5 mph above speed limit today on my way to this interview and no police spotted me".
 
I dont think you can be infected with aids if you use protection. It might be one hell of a colorful character but certanly one that is not uncommon. Many prominent people not only in US Congress (clinton, edwards..etc) but also around the world have participated in prostitution.I can say with 98% confidence interval that if an opportunity presented itself to any man, they will pay to engage in the act of sex against a cute and sexy lady.....statistics have proven that!!
 
GungaDin said:
However, if OP availed himself of these 'services' on other occasions, should he answer 'Yes' to 'Have you committed a crime where you weren't arrested'
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Not if he availed himself to these services in municipalities where such services are legal. :)
 
Your immigration lawyer advised you to expunge your records because he didnt want IO to see your police report. Police reports usually look bad, because its only one side story, not your one. Since your arrests expunged IO could now see only your side of story and this would be beneficial for you during interview. Bring the papers to IO showing u can not get police reports, only court docket and your side of story.
 
ganjik said:
Your immigration lawyer advised you to expunge your records because he didnt want IO to see your police report. Police reports usually look bad, because its only one side story, not your one. Since your arrests expunged IO could now see only your side of story and this would be beneficial for you during interview. Bring the papers to IO showing u can not get police reports, only court docket and your side of story.
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Even if it is not expunged, one does not need to provide police report. And court often only expunged court record not police records because police record is not open to the public. Sometimes a judge can order police to also expunge police inetrnal records. But if FBI already got the poloice repoort, no judge of any state court has power to order FBI around.
 
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