Pre-plea diversion and citizenship eligibility - wait another 5 years? Conviction?

B

bokunba

Registered Users (C)
Hello,

This forum is great and full of valuable information. Thanks in advance for reading my post.

Please see my situation below and provide your inputs, if possible:

I was arrested in San Francisco,CA for loitering with the intent to commit prostitution (653.22(a) pc). Did not go to jail, the whole thing took 10 minutes, they saw me talking to an undercover cop, arrested me and, since this was my first offense ever, gave mme a citation and let me go with a letter from the DA's office offering me a diversion program (FOPP - First Offender Prostitution Program).

After attending a one day 8 hour course, the charges were dropped by the DA with no court appearance, no plea deal, and no formal admittance of guilt.

As a result, I do not have a criminal history but, as you know, I have an arrest record.

My question is, can I apply for citizenship now or do I have to wait another 5 years from the arrest date to file the N400?
There was no admission of guilt from my part and no plea deal so, from what I have read so far, this does not constitute a conviction for immigration purposes. Is this correct?

Also, would "Loitering with the intent to commit prostitution 653.22 (a) pc" be a CIMT?

Today, San Francisco's Superior Court disposition states - " Discharged by the DA's office therefore no records exist". I also have a letter from the DA stating that they have reviewed the case and have decided to discharge it in the "interest of justice". There is nothing on record stating that I participated in the first offender program.


Of course I will disclose the arrest on the N400 but that is the only question I will answer positively in the good moral character section, since I was not convicted, formarly charged, etc...only arrested. Also, this program is voluntary. I was not placed in this diversion program by the court or DA, I did it at my own will.

Originally, I was going to fight the charge in court, but, since this would entail a great amount of time and money with court and lawyer fees, and would also make the matter public, regardless, I opted to the quick and discrete option - the diversion program (pre-trial, no court involved).

I am a 28 year old male, permanent resident since 1991, masters student and currently working at a multinational company. This was my one and only arrest. I don't even have a traffic violation on record.

I really appreciate your answer to my question and I thank you greatly.

Best Regards.
 
After attending a one day 8 hour course, the charges were dropped by the DA with no court appearance, no plea deal, and no formal admittance of guilt.
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You had to attend a course. Generally, if there is ANYTHING you have to do ... attend a course, community service, or pay a fine, it is considered a conviction in immigration law. And USCIS is able to see expunged and sealed records with the help of the FBI.

I am a 28 year old male, permanent resident since 1991, ...
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Did either of your parents become a citizen before you turned 18? If yes, you might already be a citizen and don't know it.
 
Generally, immigration law punishes hookers and pimps but not the "john". Only the pimp commits a CIMT. The hooker CAN be barred for 10 years under INA 212(a)(2)(D) but there is a waiver for it. The hooker is a generally viewed as a "victim" and the "john" is treated as though he got a speeding ticket......... Do your own analysis on this....

8 CFR § 316.10 Good moral character.

(b) Finding of a lack of good moral character. (1) An applicant shall be found to lack good moral character, if the applicant has been:

(2) An applicant shall be found to lack good moral character if during the statutory period the applicant:

(iv) Admits committing any criminal act covered by paragraphs (b)(2) (i), (ii), or (iii)* of this section for which there was never a formal charge, indictment, arrest, or conviction, whether committed in the United States or any other country;

*[CIMT, felonies, controlled substances]

California Penal Code:

653.22. (a) It is unlawful for any person to loiter in any public
place with the intent to commit prostitution. This intent is
evidenced by acting in a manner and under circumstances which openly
demonstrate the purpose of inducing, enticing, or soliciting
prostitution, or procuring another to commit prostitution.
(b) Among the circumstances that may be considered in determining
whether a person loiters with the intent to commit prostitution are
that the person:
(1) Repeatedly beckons to, stops, engages in conversations with,
or attempts to stop or engage in conversations with passersby,
indicative of soliciting for prostitution.
(2) Repeatedly stops or attempts to stop motor vehicles by hailing
the drivers, waving arms, or making any other bodily gestures, or
engages or attempts to engage the drivers or passengers of the motor
vehicles in conversation, indicative of soliciting for prostitution.
(3) Has been convicted of violating this section, subdivision (a)
or (b) of Section 647, or any other offense relating to or involving
prostitution, within five years of the arrest under this section.
(4) Circles an area in a motor vehicle and repeatedly beckons to,
contacts, or attempts to contact or stop pedestrians or other
motorists, indicative of soliciting for prostitution.
(5) Has engaged, within six months prior to the arrest under this
section, in any behavior described in this subdivision, with the
exception of paragraph (3), or in any other behavior indicative of
prostitution activity.
(c) The list of circumstances set forth in subdivision (b) is not
exclusive. The circumstances set forth in subdivision (b) should be
considered particularly salient if they occur in an area that is
known for prostitution activity. Any other relevant circumstances may
be considered in determining whether a person has the requisite
intent. Moreover, no one circumstance or combination of circumstances
is in itself determinative of intent. Intent must be determined
based on an evaluation of the particular circumstances of each case.

http://www.nationalimmigrationproje.../cd_so_Chart - California Offenses - 2010.pdf
 
Thanks for the replies. This is an interesting topic...
Here are a couple of notes:

- This occured in Janurary'2010 (inside the statutory period)

- Not that this matters but I did not commit the crime (so I will NEVER admit to it). I have two witnesses that were with me and we had just left a mexican restaurant. When we left, a really nice looking lady started talking to me (did not look like a prostitute, I have never procured prostitutes because I personally dont approve prostitution, I am against it).During the converstation, she mentioned something regarding sex acts and money and I was surprised because I didnt think she was a prostitute (and she wasnt!- she was an undercover cop). After she mentioned that, I left. After I started walking, the police officers (propably because they were thirsty to arrest someone!!) arrested me for "loitering" since they didnt have any other evidence against me. I was going to fight it in court, but, that would be costly and would take a lot of time, so I chose the VOLUNTARY course that would result in an even better outcome - discharged by the DA. If I had gone to court, the complaint would have been filed in the court system and it would become public. Really a no brainer that the course was the best way to go. They design it that way so that they can make money off the course.

- I am not going to expunge since there is nothing to expunge (only an arrest record and the USCIS would see that anyway).

- Since I was not formally charged, the court document with the final "DA discharge" disposition should be enough, at least that is whay USCIS instructs people to do.

- My parents are not citizens and neither am I. I am eligible for citizenship now and I am almost certain I will apply. This should not preclude me from showing good moral character since: 1 - I was not formally charged or placed in any diversion (it was voluntary); 2 - this is my only arrest ever; 3 - I have other things that should be important to show moral character such as a steady job; maters degree; recommendation letters; etc..

- In the good moral character, I will answer NO to all questions except to the "were you ever arrested one....". So, I will not admit to anything in the N400, especially because I did not commit the crime. I have never commited any crime in my life...this is really frustrating. But, I will disclose the arrest in the N400, of course.

Anyways, thans for the reply you guys, I really appreciate it.
 
Jackolantern said:
Generally, if there is ANYTHING you have to do ... attend a course, community service, or pay a fine, it is considered a conviction in immigration law.
Click to expand...

Pre-trial diversion where no plea was entered in court does not count as a conviction for immigration purposes.


It is important to understand that certain pre-trial diversion programs would not fall within the immigration definition of conviction. If a defendant enters a pre-trial diversion program that does not require a guilty or no contest plea (or admission to the elements of the offense), the defendant will not be deemed to have been convicted for immigration purposes if the case is dismissed upon successful completion of the program.

http://www.nacdl.org/public.nsf/01c1e7698280d20385256d0b00789923/a5efcca0bc6d78de8525729e005153e9?OpenDocument


Considering the OP never went to court or enter a plea, the FOPP does not count as a conviction for immigration purposes.
 
Thanks for the reply.

Does this mean that I can apply right away or do I have to wait another 5 years?
 
Yeah, lossing money, thats why they are desperate to arrest as much people as they can so they can generate reveneu! Its an absurd! I would never expect to see something like this in the US, but, nothing is perfect...

thanks.
 
bokunba said:
Thanks for the reply.

Does this mean that I can apply right away or do I have to wait another 5 years?
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Since the FOPP doesn't count as a conviction for immigration purposes and you were never required to admit to anything, it does not preclude you from naturalization at this time.
You will need to disclose the arrest and bring the arrest and pre-trial documentation to the interview. A cover letter with application indicating the FOPP never required you to enter a plea, go to court , or admit to anything would be a good idea.
Finally, consult an immigration lawyer specialized in such matters to go over your case specifics to make sure nothing is missed.
 
DV charges

bokunba said:
Thanks for the reply and also for the tips!!
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Hi Bokunba
I'll be thankful if u suggest in my case.
Actually last year I also got arrested for DV (although it was not my mistake) and then I got pre trial release without any condition (no protective orders). I am living with my family (wife and kids)
I hired the lawyer and I was able to got verbal deal with DA That I will do DV anger management classes and she will dismiss my case. Which I am doing now.
So in my case, I didn't plead guilty, I didn't sign any agreement. No fine, No probation. Nothing has been ordered by judge. I am just told to finish these classes (only for DA.and she will not mention these in any official document) by certain time and I will be fine
But I am still scared of immigration people. I am eligible to apply my citizenship this year. Please let me know how this thing will affect my naturalization and traveling abroad. What is the safe path for both of these situation where you gonna see DHS.

Thanks
 
If this is your only arrest and you did not plead guilty or no-contest and you did not admit to the crime, my opinion is that you should apply for citizenship once the time comes. Nothing is guaranteed, as with my case, however, since you do not have a criminal conviction (and from what you are saying you do not seem to have a conviction for immigration purposes either) you are still eligible to naturalize. Did you ever go before a judge? They ideal scenario is to keep the judge out of the loop. Only deal with the DA and have them dismiss the charges without court appearance.

Get a copy of the final disposition stating that all charges have been dropped. Always have that with you while traveling abroad. If they ask you what happened just say that you were arrested and charges where dropped by the DA. Never admit to the crime to immigration services since they can use that against you. It would also be a good idea to get a a letter from the DA stating that all charges have been dropped.

This is just my opinion. I am not a lawyer. If I were you, I would see an immigration lawyer and present him/her with all the documentation you have so that he/she can assess the situation in detail. Choose a lawyer wisely since there are many incompetent lawyers out there that have no clue pertaining to this part of the immigration law.

Good luck!
 
Received N-445 letter with Oath Ceremony invitation

Hello,

First of all, thanks for all the help during my application process. This forum was instrumental for me to gather the necessary information I needed so that I could apply for naturalization with confidence and positivism.

Today I received my N-445 letter with an inviation for the Oath Ceremony.

Very happy :-)

Thanks again to everyone that replied to my questions and best regards!

B.
 
hey

hey how u doing? i got the same problem..i had soliticing prostitution charge before.i applied citizenship and passed the interview in may.its been 4 months .i didnt get the oath yet.my case was dismissed.i plead not guilty.how long u waited to get ur oath???
 
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