Petty Theft - No Guilty Charges Dismissed and Citizenship

[Jackolantern]

Obviously we will never agree, as you are fixated on the erroneous idea that a conviction for immigration purposes requires the court to make a finding of guilt.

This will be my last posting on this thread, and the quote below is not to convince you (Bobsmyth) as that is impossible, but for the sake of other readers and the OP.

http://www.nlgmass.org/immigration.pdf

The practical result of this statutory language means that the following dispositions may potentially be “convictions” for immigration purposes:

A continuance without a finding may be found to be a conviction for immigration purposes even if the charge is subsequently dismissed. 8 U.S.C. § 1101(a)(48)(A).

A plea of nolo contendere that results in a continued without a finding or a guilty finding is a conviction for immigration purposes. 8 U.S.C. §1101(a)(48)(A).

Even an admission to sufficient facts, with a dismissal, may be considered a conviction for immigration purposes. 8 U.S.C. §1101(a)(48)(A); See also Matter of Roldan, Interim
Decision 3377 (BIA 1999). The key in that case is whether the judge ordered “some form of punishment, penalty or restraint.” Probation, even pre-trial probation, qualifies as “some form of restraint.” Therefore a dismissal upon payment of court-costs, with an admission of guilt, arguably qualifies as a conviction for immigration purposes.

HOWEVER, as long as the defendant does not admit to sufficient facts, pre-trial probation is a safe disposition and does not equal a “conviction.”

 

[raevsky]

In matter of Roldan ( http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3377.pdf ) adjudication was withheld.

On November 29, 1993, the 27-year-old respondent, a native and
citizen of Mexico, pleaded guilty to possession of more than 3
ounces of a controlled substance, marijuana, which was a felony
violation of section 37-2732(e) of the Idaho Code. On January 10,
1994, the District Court of the Sixth Judicial District of the State
of Idaho, in and for the County of Bannock, withheld adjudication of
judgment, sentenced him to 3 years’ probation and imposed several
monetary penalties.

So, in the original 9 FAM quote 2) and 3) were both true. That is why that was under the definition of conviction.

A continuance without a finding may be found to be a conviction for immigration purposes even if the charge is subsequently dismissed. 8 U.S.C. § 1101(a)(48)(A).

As in the matter of Roldan, where adjudication was withheld and he pleaded guilty. Nothing like that happened here.

A plea of nolo contendere that results in a continued without a finding or a guilty finding is a conviction for immigration purposes. 8 U.S.C. §1101(a)(48)(A).

Nothing like that happened here as well. There was no continued without finding of guilt (instead, the verdict was not guilty), and there was no guilty finding.

 

[Bobsmyth]

Obviously we will never agree, as you are fixated on the erroneous idea that a conviction for immigration purposes requires the court to make a finding of guilt.

This will be my last posting on this thread, and the quote below is not to convince you (Bobsmyth) as that is impossible, but for the sake of other readers and the OP.

http://www.nlgmass.org/immigration.pdf

This article does not back up your argument (that USCIS can make it's own determination of guilt based of admission of facts in order for it to be considered a conviction). In fact I agree completely with what the article says, which is exactly what I have been saying all along. That is order to be considered a conviction under federal immigration laws two things must occur:

1) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or of
nolo of contendere or has admitted sufficient facts to warrant a finding of guilt; and
2) the judge has ordered some form of punishment, penalty or restraint on the alien’s
liberty to be imposed. 8 U.S.C. § 1101(a)(48)(a).

The following in the article sums it up the best when it comes to admitting of sufficient facts:

HOWEVER, as long as the defendant does not admit to sufficient facts, pre-trial probation is a safe disposition and does not equal a “conviction.”

I understand your rational of assuming "has admitted sufficient facts to warrant a finding of guilt" to mean finding of guilt by USICS, not the courts. I just don't agree with your interpretation of what the law says. And please, let's keep the argument civil without having to resort to your tactics of belittling my viewpoint.

 

[raevsky]

Even if a person makes a guilty plea and the judge finds both the guilt and sufficient facts to warrant finding of guilt, but somehow adjudication is not withheld, but instead the formal judgment is "not guilty" (what in fact happened here), and even if the judge imposed penalties (as in this case), that is still not a conviction under immigration law.

 

[Bobsmyth]

Even if a person makes a guilty plea and the judge finds both the guilt and sufficient facts to warrant finding of guilt, but somehow adjudication is not withheld, but instead the formal judgment is "not guilty" (what in fact happened here), and even if the judge imposed penalties (as in this case), that is still not a conviction under immigration law.

I'd have to disagree with that since an admission of guilt in the courts (regardless of what the final judgment is) and imposed penalties is considered a conviction according to federal immigration law. Furthermore, I don't see how a plea of guilty can be reversed to not-guilty by the courts if the judge already found the facts sufficient to warrant an admission of guilt.

 

[Silly Mistake]

Everyone, thank you so much for your viewpoints.

Just to make it clear, there was no guilty plea anywhere by me or by the court.

When I sent my N-400 application I sent in the Court docket report (that shows Not Guilty and Case Dismissed) along with all the police reports. By sending in police reports to INS would it cause any more problem? Can they ask me to defend my case again at the interview?

Thanks!!

 

[raevsky]

I'd have to disagree with that since an admission of guilt in the courts (regardless of what the final judgment is) and imposed penalties is considered a conviction according to federal immigration law.

I do not see that in the law. We just saw 1101(a)(48)(A), that does not have that.

Furthermore, I don't see how a plea of guilty can be reversed to not-guilty by the courts if the judge already found the facts sufficient to warrant an admission of guilt.

As I described earlier, even if the person committed an action, and even if he pleaded guilty, he could be still innocent under the law. For instance, if he committed the action because of life threat, or because of mental condition, his guilty plea is not enough to consider him guilty even if there is no doubt the action itself occurred, to which he pleaded guilty. That is why "non-guilty" judgment by the court is definitely a final say (unless appealed and overturned by a higher court later), it overwrites his guilty plea.
He could have committed something, and he could consider himself guilty, but if the judge (or jury) has decided he is still innocent, so be it.

 

[raevsky]

When I sent my N-400 application I sent in the Court docket report (that shows Not Guilty and Case Dismissed) along with all the police reports. Be sending in police reports to INS would it cause any more problem? Can they ask me to defend my case again at the interview?

You have nothing to worry about. Of course, CIS people sometimes make mistakes. In that case you will need to appeal and you will win.

 

[Bobsmyth]

When I sent my N-400 application I sent in the Court docket report (that shows Not Guilty and Case Dismissed) along with all the police reports. Be sending in police reports to INS would it cause any more problem? Can they ask me to defend my case again at the interview?

Thanks!!

What do police records show? Have you discussed this with a immigration lawyer specialized in criminal law since the inconsistent views on this board shouldn't be used to determine what you should do especially when it comes to such an issue. Jackolantern argues that yes, USCIS may use the facts of case to come up with their own conclusion of guilt and conviction, whereas I argue that the finding of guilt must be done by courts in order to be considered a conviction under immigration laws. It's best to have a lawyer determine whose interpretation is correct.

 

[Bobsmyth]

I do not see that in the law. We just saw 1101(a)(48)(A), that does not have that.

1) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or of nolo of contendere or has admitted sufficient facts to warrant a finding of guilt; ..

To me that means an admission of guilt must either have been entered by the defendant or a finding of guilt must have been ruled by the courts.

As I described earlier, even if the person committed an action, and even if he pleaded guilty, he could be innocent under the law. For instance, if he committed the action because of life threat, or because of mental condition. That is why "non-guilty" judgment by the court is definitely a final say (unless appealed and overturned by a higher court later).

In the court's mind this would not be considered a conviction, but the language in INA suggest that for immigration law it would be as long as there was also a punishment (ie. diversionary program) imposed.

 

[Silly Mistake]

The police record shows the police incident report along with the narration

 

[raevsky]

http://www4.law.cornell.edu/uscode/uscode08/usc_sec_08_00001101----000-.html

(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.

It is totally equivalent to

9 FAM 40.21(a) N3.1 Defining Conviction
(CT:VISA-753; 06-29-2005)
INA 101(A)(48) defines “conviction” as either:
(1) A formal judgment of guilt entered by a court; or
(2) If adjudication has been withheld,
(a) either:
• A finding of guilty by judge or jury; or
• A plea of guilty or nolo contendere by the alien; or
• An admission from the alien of sufficient facts to warrant a finding of guilt; and
(3) The imposition of some form of punishment, penalty or restraint of liberty by a judge

So, your interpretation of the clause

1) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or of nolo of contendere or has admitted sufficient facts to warrant a finding of guilt;

differs from what is said. You are skipping if adjudication of guilt has been withheld, where—

To me that means an admission of guilt must either have been entered by the defendant or a finding of guilt must have been ruled by the courts.

But to me it means that should be done only if adjudication of guilt has been withheld, as stated in the law

In the court's mind this would not be considered a conviction, but the language in INA suggest that for immigration law it would be as long as there was also a punishment (ie. diversionary program) imposed.

That would not mean it because you are skipping a significant statement from the law.

 

[Bobsmyth]

http://www4.law.cornell.edu/uscode/uscode08/usc_sec_08_00001101----000-.html



It is totally equivalent to



So, your interpretation of the clause
differs from what is said. You are skipping if adjudication of guilt has been withheld, where—

But to me it means that should be done only if adjudication of guilt has been withheld, as stated in the law
That would not mean it because you are skipping a significant statement from the law.

In that case "adjudication of guilt withheld" could also mean judge found you guilty even if the final judgment of case was not-guilty. The key to me is that as soon as there's an indication of guilt by sufficient facts in the court, even if the final judgment is not guilty, it implies the adjudication of (original) guilt was withheld and therefore constitutes a conviction according to immigration law (provide of course there was also a penalty imposed).

 

[raevsky]

That is possible. That could be a valid interpretation.

Then it depends on what

An admission from the alien of sufficient facts to warrant a finding of guilt

means.

In the worst case if that means sufficient for CIS (not fot the judge), we are back to the original question. What is the maximum possible jail term for the crime in which the alien admitted sufficient facts to warrant a finding of guilt.

 

[Silly Mistake]

I believe its 6 months as its in the State of California. I am not sure though....

I was not put on any kind of probabtion. I pleaded Not Guilty from the very beginning of the case. I did not have to go to the court either, my attorney represented me everywhere...

 

[Bobsmyth]

What is the maximum possible jail term for the crime in which the alien admitted sufficient facts to warrant a finding of guilt.

How does the determination of maximum possible jail term come into play with the definition of conviction according to immigration law ?
I thought the discussion here was about what constitutes a conviction according to INA 101(A)(48) not what constitutes inadmissibility according to INA 212(a)(2)

 

[raevsky]

I thought the discussion here was about what constitutes a conviction according to INA 101(A)(48) not what constitutes inadmissibility according to INA 212(a)(2)

INA 212(a)(2) uses the definition of conviction from INA 101(A)(48). Not every conviction causes inadmissibility.

How does the determination of maximum possible jail term come into play with the definition of conviction according to immigration law ?

That is not about the conviction itself. That is about the consequences of existence of a conviction.

I believe its 6 months as its in the State of California

Should be fine. Less than a year

 

[Silly Mistake]

So even if its been only about 4.5 years fromt the date the incident happenned and the date i filed the N-400 application, I should be okay as the case was dismissed and I pleaded not guilty from the very beginning?

Gosh this is soooo terrifying =(

 

[raevsky]

If the charges were dismissed, how do you know under which section of the law you were tried?
Are there any evidences?

Maybe that was another section, where maximum sentence is more than 1 year?

 

[Silly Mistake]

I thought all the Petty theft have 6 months jail time for CA. I may be wrong.

Evidences like what?

All it says on my court report is:

Apr ' 04 Misdemeanor Charge of 484(a) - 488 (c) PC
Sep '04 Case Dismissed - Motion of People
Dec '06 Case Closed