N-400 Arrest Record

Worst case scenario is that he gets denied for an outstanding warrant. Make sure he settles the issue before applying.
 
I'm confused: He pleaded guilty but the lawyer told him the charge was dismissed?
Also, why wasn't it disclosed during I-485 process?
 
stoneycase said:
He says the lawyer adviced him not to. He was told it was dismissed, it wasnt.
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Any immigration lawyer, even a barely competent one, would not have given such advice.
I-485 explicitly asks to disclose all arrests and convictions, even if an arrest did not lead to a conviction, or if the applicant was found not guilty or if the charge was dismissed/expunged. Incidentally, expungement of a previously entered guilty plea still counts as a conviction for immigration purposes.

The real problem your brother has is that the arrest was not disclosed on his I-485 application. The arrest was a significant material fact relevant to his green card eligibility, and concealing it may well be viewed as fraud. If he files N-600 now, his entire immigration file, including his I-485 application, will be reviewed and the fact that the arrest was not disclosed on the I-485 is likely to come out. There is then a possibility that not only his N-400 could be denied, but that the IO may initiate green card revocation process.

I'd say that your brother needs to talk to several competent immigration lawyers before trying to file N-400.
 
stoneycase said:
Can immigration lawyers perform miracles?
I know ignorance is not admittable in court.
Is it even possible to renew gc?
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While an immigration lawyer cannot perform miracles, he/she can provide competent and well-informed advice regarding the possible consequences of your brother's arrest and the fact that it was not disclosed on his I-485. Getting such information is well worth spending a few hundred dollars for.
 
stoneycase said:
Can immigration lawyers perform miracles?
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No, but they can examine the details of the situation and evaluate if there is a real risk of deportation if he goes ahead with the citizenship application (to me it seems there is, but let the lawyer determine that).

Given the seriousness of this, it would be advisable to consult at least TWO lawyers.
 
You can inquire with a competent criminal attorney, one thing every immigrant must keep in mind is the consequence of convictions before entering a plea, which is why you need to consult both a criminal and an immigration attorney before court cases. The courts are all about deals just as the entire country was built, so even if you were caught with Crime A, which can be bad immigration-wise, you can still cop a deal for Crime B instead that has nothing to do with the original crime that can actually get one removed from the country.

I say this our of experience because what I was originally arested for in 2003 will get one totally removed , even as a white collar crime that someone had done related my my previous address and I never knew anything about it, but standing my ground after (even though the lousy public defender was telling me to plead with all the exonerating evidence I had/still have till today) 5 months they offered a deal that was mere false ID, since I knew if I go to trial and won the case or if they drop it, they will hand me over to the then INS to get me on my way back home (I saw it happen in there), I took the deal and here I am after filing for a green card and disclosing the plea and providing the disposition document. But before all that I did my homework, reading law books and learning my options on what to and not to take as very consequential immigration-wise. Back then I was my own immigration attorney because I knew most immigration laws and loopholes (many of which I have forgotten about now), while being detained for five months and violating my F1 status, so all I needed was a competent criminal attorney to fight for me with my ample exonerating evidence but I was just a poor student who had nobody to even bail me out (had I been out, I probably won't have taken any deal), so I had no choice but to cop a lesser deal. Luckily INS did not order a detainer on me before I got out.

Having said all that, you need to consult with a criminal attorney to see how you can wriggle your way out of that plea, if possible and an immigration attorney that can help find you a better plea that will not get you in immigration trouble to replace your original plea and perhaps also pay a fine or do some brief time (uncomfortable, I know), all of which will not matter to immigration anymore. And you still have to read and know the law to cover your own a** and not leave it all up to the attorneys, just as you did before and got screwed into pleading on a bad deal, you gotta be smart and the only way to do so is to read laws surrounding your case. You gotta do what you gotta do, man.
 
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stoneycase said:
Thanks everyone for the responses and advice, there are new developments to the case, we were able to re-instate the dismissal judgement, turns out the judge put in a default plea and caused the warrant.

That said, we have an I-485 with a mistake on it not mentioning the arrest record and no idea how to fix that yet. We spoke to two immigration lawyers on the phone and they gave positive feedback on the case but of course want to setup an appointment which we did for next week.

Is there no way to fix this before filing the N-400, is it an IO's decision, do we mention our issue to the IO at that time? Is there no avenue but to go in front an immigration judge? How bad is all of this? The good news is his moral character the last 10 years is great, no arrests, some traffic tickets, taxes paid, job, degree, etc...

Any good advice will help, thanks again.
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It is good that you have taken care of the outstanding warrant and that you have scheduled appointments with immigration lawyers.


In terms of your questions, here is my (highly non-expert) opinion. The real problem you have is not disclosing the arrest and the subsequent court case in your I-485 application. The solicitation charge and conviction itself would not matter that much for your N-400: it is a rather old (well over 5 years old) and relatively minor criminal matter. In and of itself, it most likely would not prevent your N-400 application from being approved.

Concealing that episode on I-485 is a different matter. If you do file N-400, you'll definitely have some explaining to do, and how it'll go will ultimately depend on the IO's judgement. (And, no, you can't go directly to an immigration judge). IMO, your best line of defense would be to plead ignorance and stupidity.

However, if you do end up filing N-400, you'll need to disclose the solicitation arrest/court case fully in your N-400 (not wait until the interview, but spell everything out, with all the supporting documentation enclosed, in the N-400 application itself).

The most problematic issue you'll have will be how to answer Q23 in part 10D of the form:

"Have you ever given false or misleading information to any U.S. government official while applying for any immigration benefit?"

IMO, the correct and truthful answer to this question in your case is "Yes". However, maybe there is some legal wiggle-room here, and that is what you should ask the immigration lawyer(s) about in particular when you see them.

Basically, in situation like this, the cover-up is usually much worse than the crime. Answering "No" to Q23 and hoping that the IO will not notice the inconsistence while reviewing your A-file and your I-485 may backfire very badly, and may be viewed, in and of itself, as an attempt to lie to immigration authorities.

You should also ask the lawyers about the likelihood of worst-case scenarios and of your subsequent options; by worst-case I mean the possibility (I don't know how realistic) that an IO adjudicating your N-400 might decide that your GC was obtained fraudulently, since you concealed your arrest/conviction when filing I-485, and may initiate GC revocation and deportation proceedings against you.

If it turns out that the probability of something like that happening is not negligible, it may be better for you to forget about citizenship and be content with living as an LPR.
 
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