N-400 FBI name check Question

A

Ahmed1982

Registered Users (C)
Hi.
I have a friend who will be eligible to apply for his USC next month but he is worried about some previous arrests he had.

First he was granted LPR ON Jan 2010 through marriage to USC and they still married. Back on 2003 he got arrested for fight with some co-worker and he did three days community service for that and he said his lawyer told him his case will be sealed after he finish his CS. On 2006 the same thing happened he got arrested and did 10 days CS and his lawyer told him the same thing his case will be sealed.

When he filled his I-485 he didn't mention this two arrests and he GOT granted LPR. Now he doesn't know what to do when he files his N400 application should he mention them or he just answer no. and if mention them they will affect his LPR because they were before it and he never mention them.

He doesn't know what to do can any body help please


thanks
 
Ahmed1982 said:
Hi.
I have a friend who will be eligible to apply for his USC next month but he is worried about some previous arrests he had.

First he was granted LPR ON Jan 2010 through marriage to USC and they still married. Back on 2003 he got arrested for fight with some co-worker and he did three days community service for that and he said his lawyer told him his case will be sealed after he finish his CS. On 2006 the same thing happened he got arrested and did 10 days CS and his lawyer told him the same thing his case will be sealed.

When he filled his I-485 he didn't mention this two arrests and he GOT granted LPR. Now he doesn't know what to do when he files his N400 application should he mention them or he just answer no. and if mention them they will affect his LPR because they were before it and he never mention them.

He doesn't know what to do can any body help please


thanks
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He should not file N-400 at all, certainly not before talking to a bunch of immigration lawyers first.
Your friend lied about his arrests in his I-485 application, so he is quite possibly deportable now. Regardless of subsequent disposition (i.e. if a charge was later dismissed, vacated, sealed or whatever), he had an obligation to disclose these arrests in his I-485 application, in response to question 1b in part 3C of I-485. Moreover, the fact that he accepted some form of punishment (community service) for those arrests means that for immigration purposes they probably qualify as convictions and not just arrests.

If he does file N-400, he still has an obligation to disclose his arrests there, in response to Q16 in part 10D of N-400. Moreover, he'll have to answer "yes" to Q23 in part 10D of N-400 asking if he had ever lied in any immigration related applications (which he did, in his I-485). If he files N-400 and does not disclose those arrests and answers "no" to Q23, it is still fairly likely that the information about those arrests will be discovered by the USCIS during the background checks; then he will be in an even worse position, having been caught lying in his N-400.

Either way, if the USCIS discovers that he obtained his green card as a result of misrepresentations and concealing material information in his I-485, is it reasonably likely that they will decide to revoke his green card and then to deport him.

In the unlikely case that he conceals those arrests in his N-400 and his N-400 is somehow approved, his naturalization can be revoked later due to having been fraudulently obtained.
 
thanks baikal3
That's exactly what I told him. I advised him not to apply for his USC because either way he mention it or not and it showed up on his FBI name check he still in trouble. He said he checked his criminal record history and it said no records so he will talk to an immigration lawyer. also he said his LPR still active because he traveled twice outside USA the last time was last month and came back without any problems.
BTW I asked him did they ask for more evidence during his I-485 case he said the only thing they asked for is his birth certificate and I-94 Card and he was stuck in FBI NAME CHECK for more than two years and did his fingerprints four times.

So the question they granted him LPR after he passed the FBI name check which I assume nothing came up against him. Or they granted him his LPR before his FBI name check completed?
 
Why was those arrests noticed when they processed his LPR? Don't they do any sort of criminal background check for LPR?
 
The thing is he doesn't know if it was noticed when the processed his LPR. he didn't mention it in his I485 application but they approved it. So he doesn't know if it came up on his record or not, and if it was noticed why they approved his case?

jj154728 said:
Why was those arrests noticed when they processed his LPR? Don't they do any sort of criminal background check for LPR?
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Ahmed1982 said:
thanks baikal3
That's exactly what I told him. I advised him not to apply for his USC because either way he mention it or not and it showed up on his FBI name check he still in trouble. He said he checked his criminal record history and it said no records so he will talk to an immigration lawyer. also he said his LPR still active because he traveled twice outside USA the last time was last month and came back without any problems.
BTW I asked him did they ask for more evidence during his I-485 case he said the only thing they asked for is his birth certificate and I-94 Card and he was stuck in FBI NAME CHECK for more than two years and did his fingerprints four times.

So the question they granted him LPR after he passed the FBI name check which I assume nothing came up against him. Or they granted him his LPR before his FBI name check completed?
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The fact that his I-485 was approved and that he has been able to travel abroad a few times after becoming an LPR and reenter the U.S. with no problems does not guarantee that the USCIS won't discover those arrests if he files N-400 now.

It is possible that his I-485 was approved before the FBI Name Check was completed. There was a policy change made by USCIS in 2008 that if an I-485 remained pending for more than 180 days due to a pending FBI Name Check, the USCIS could approve I-485 in such a situation:
http://www.uscis.gov/files/pressrelease/DOC017.PDF

That change in policy applied only to I-485 applications. For the naturalization applications the USCIS must still wait until the FBI Name Check is completed before approving the application.

Also, the record-keeping and coordination between the various law enforcement databases is continuously progressing and something that was not caught in 2010 can well be caught by a background check now.

Plus, the FBI Fingerprint Check and the FBI Name Check are not the only background checks performed during an N-400 application process. As a part of N-400 processing, the USCIS also performs the IBIS Name Check, which pools together information from many federal and state law enforcement agencies. See here for some info on the IBIS check (although that info is somewhat out of date):
http://immigrationroad.com/green-card/uscis-security-check.php

The IBIS check takes a couple of days, so the CBP agents that admitted him to the U.S. when he was returning from his foreign trips as an LPR would not have had access to the IBIS check results.

There may well be some new background check procedures in place now that we don't know about.

So if he plans to lie again, this time in his N-400, and hopes to get away with it, he is really playing with fire.
 
So little confused here. For many minor arrests, the defendants are instructed by their attorneys that their cases will be sealed and expunged and that they may claim a never-arrested status on any applications. The N-400 form specifically asks you to disclose those arrest records even if the records are expunged or if the applicant was instructed by their attorney to never mention those arrests. The I-485 form though does not stress on that point so thoroughly thus naturally an applicant with an expunged arrest record would not disclose it which seems to be the case with the OP here.

I don't understand why the OP would get penalized or their LPR status jeopardized when they were only following instructions from their attorneys who handled their arrest cases.

Stoned!
 
StonedAnt said:
So little confused here. For many minor arrests, the defendants are instructed by their attorneys that their cases will be sealed and expunged and that they may claim a never-arrested status on any applications. The N-400 form specifically asks you to disclose those arrest records even if the records are expunged or if the applicant was instructed by their attorney to never mention those arrests. The I-485 form though does not stress on that point so thoroughly thus naturally an applicant with an expunged arrest record would not disclose it which seems to be the case with the OP here.

I don't understand why the OP would get penalized or their LPR status jeopardized when they were only following instructions from their attorneys who handled their arrest cases.

Stoned!
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The short answer is that this is what the immigration law requires. Criminal lawyers are not competent to provide advice regarding immigration law matters, and any immigration lawyers knows full well that all arrests and convictions, both in the U.S. and abroad, regardless of expungement/dismissal/pardon/whatever, must be disclosed in full in I-485 and in N-400.
 
baikal3 said:
The short answer is that this is what the immigration law requires. Criminal lawyers are not competent to provide advice regarding immigration law matters, and any immigration lawyers knows full well that all arrests and convictions, both in the U.S. and abroad, regardless of expungement/dismissal/pardon/whatever, must be disclosed in full in I-485 and in N-400.
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Understood, but if one did not disclose it on I-485 but did on N-400, can that applicant make an argument that they were simply following instructions without any ill intent of deceiving anyone which is why they disclosed it on their N-400 application that has far clearer instructions on such matters?

Stoned!
 
StonedAnt said:
Understood, but if one did not disclose it on I-485 but did on N-400, can that applicant make an argument that they were simply following instructions without any ill intent of deceiving anyone which is why they disclosed it on their N-400 application that has far clearer instructions on such matters?
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One could try, but, IMO, it is not very likely to work. They'll simply say that the applicant should not have relied on the advice of criminal attorneys in immigration matters. [And at the very least they'd want to see a positive proof, in the form of a statement by the criminal lawyer in question, that the lawyer actually did give the applicant advice to answer "no" to the questions in government application forms about having ever been arrested]


Fairness has very little to do with the U.S. immigration law which contains many draconian provisions, including those concerning minor crimes. E.g. shoplifting (even for something like $20) is considered a CIMT, and, if committed within 5 years of the date of admission to the U.S., is a deportable offense.
 
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He talked to an Immigration lawyer today and the lawyer told him to go ahead and do a personal FBI finger print / Name check. and if he see it on his report he will have to mention it on his N400 application and send that report along with it. So he is going to do his FBI CRIMINAL CHECK.
 
Here Is the weird Update He received his FBI report today and it is clean. It's saying after searching his name and his fingerprints there is no record found. He went with the report to his lawyer and his lawyer told him go ahead and apply for your citizen next month and don't mention any arrest record just answer no. By the way he also get another report from the county where he was arrested and it's clean ( NO RECORD FOUND). So by him filling his N400 next month there any problem for him answering no to the criminal history question according to his FBI report or he will be still misrepresenting information.
 
Ahmed1982 said:
Here Is the weird Update He received his FBI report today and it is clean. It's saying after searching his name and his fingerprints there is no record found. He went with the report to his lawyer and his lawyer told him go ahead and apply for your citizen next month and don't mention any arrest record just answer no. By the way he also get another report from the county where he was arrested and it's clean ( NO RECORD FOUND). So by him filling his N400 next month there any problem for him answering no to the criminal history question according to his FBI report or he will be still misrepresenting information.
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Of course, there would be a problem. If he answers "no", he will not be "misinterpreting" something, he will be plainly lying.
The question is "Have you ever been arrested?", and he has, twice. So the only truthful answer here is "yes". No self-respecting immigration lawyer would advise him to answer "no" to this question in N-400. So he is either talking to a criminal lawyer or to a really incompetent immigration lawyer.
 
OK if he answer yes what he should include with his application if he can't obtain any record from the county where he was arrested. So he should just explain what happened but the IO will ask him for paperwork and he can't find any thing saying he was arrested. If his FBI report saying there is no record found that's what is going to be the answer to the Immigration when he does his fingerprint/name check.
By the way he is talking to an Immigration Lawyer.
baikal3 said:
Of course, there would be a problem. If he answers "no", he will not be "misinterpreting" something, he will be plainly lying.
The question is "Have you ever been arrested?", and he has, twice. So the only truthful answer here is "yes". No self-respecting immigration lawyer would advise him to answer "no" to this question in N-400. So he is either talking to a criminal lawyer or to a really incompetent immigration lawyer.
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Ahmed1982 said:
OK if he answer yes what he should include with his application if he can't obtain any record from the county where he was arrested. So he should just explain what happened but the IO will ask him for paperwork and he can't find any thing saying he was arrested. If his FBI report saying there is no record found that's what is going to be the answer to the Immigration when he does his fingerprint/name check.
By the way he is talking to an Immigration Lawyer.
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He should definitely talk to a real immigration lawyer before filing N-400, preferably a lawyer associated with AILA, as they are generally more reliable http://www.aila.org/content/default.aspx?docid=10180

I don't know about the records, but generally if he goes to the actual court where his arrest/conviction were processed, he should be able to get copies of the disposition records, even if they were officially expunged/dismissed/whatever.

If he had a criminal lawyer handling those arrest, that criminal lawyer probably has those records too.

When he talks to an AILA lawyer, he needs to discuss the problem of whether he should file N-400 at all (given that he lied in his I-485) and the problem of what to answer to Q23 in part 10D of N-400 ("Have you ever given false or misleading information to any U.S. government official while applying for any immigration benefit"). Under no circumstances should he file N-400 before consulting with a really competent immigration lawyer first.
 
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