US Citzenship with past felony charges

[bdCricket]

Hello,

I have searched the forum quite a bit to see if anybody had posted a thread similar to my problem and could not find one. So posting a new thread. If this was already answered, please post the link for that thread. Thanks in advance. Anyway, here is my story.

I lived in this country over 12 years. Got my GC through my employer in 2004 and so did my wife. We have a daughter who is US citizenship by birth.

In Dec 2005, I was arrested at a bank for cashing fraudulent check (didn't know the check was fraudulent). I was taken to the station and had to stay in jail for 24 hrs. After 3/4 months, they charged me with 3 counts of Felony C (trying to deceit the bank). Anyway, my lawyer got me a diversion program for a year and I had to do 40hrs of volunteer work. So after the diversion year (Oct, 2007), they dropped the charges and gave a "DISMISSAL" document where it lists the "diversion completed" in it.

Now, since I am eligible to apply for citizenship, I was wondering what kind of situation I could face?

Can they deny my application for citizenship? Or my Green Card, means they can deport me? Should I even apply now?

Can I go out of the country to visit my home country and come back to US w/o any problem? Can I be inadmissible to the country?

Sorry for the long thread, but I wanted to explain everything. Thanks very much in advance for your informational posts.

 

[baikal3]

Hello,

I have searched the forum quite a bit to see if anybody had posted a thread similar to my problem and could not find one. So posting a new thread. If this was already answered, please post the link for that thread. Thanks in advance. Anyway, here is my story.

I lived in this country over 12 years. Got my GC through my employer in 2004 and so did my wife. We have a daughter who is US citizenship by birth.

In Dec 2005, I was arrested at a bank for cashing fraudulent check (didn't know the check was fraudulent). I was taken to the station and had to stay in jail for 24 hrs. After 3/4 months, they charged me with 3 counts of Felony C (trying to deceit the bank). Anyway, my lawyer got me a diversion program for a year and I had to do 40hrs of volunteer work. So after the diversion year (Oct, 2007), they dropped the charges and gave a "DISMISSAL" document where it lists the "diversion completed" in it.

Now, since I am eligible to apply for citizenship, I was wondering what kind of situation I could face?

Can they deny my application for citizenship? Or my Green Card, means they can deport me? Should I even apply now?

Can I go out of the country to visit my home country and come back to US w/o any problem? Can I be inadmissible to the country?

Sorry for the long thread, but I wanted to explain everything. Thanks very much in advance for your informational posts.

First, a quick note: you definitely need to consult an experienced immigration attorney (maybe even more than one) before filing any applications and even before travelling outside the country.

Now to your questions: in your post you omit some crucial details. You say "Anyway, my lawyer got me a diversion program for a year [...]"
Did you plead guilty to the charges and if yes, to which charges exactly? If you did not plead guilty, were you ever found guilty (and of which charges exactly) by the court? Also, which state did this happen in?
The notion of a class C felony varies very much from state to state as does the maximal possible punishment for a particular kind of offense.

The answers to your questions depend on this info.

Also, I am pretty unclear why they charged with with 3 counts of something if it was one bad check. Could you elaborate?

 

[bdCricket]

First, a quick note: you definitely need to consult an experienced immigration attorney (maybe even more than one) before filing any applications and even before travelling outside the country.

Now to your questions: in your post you omit some crucial details. You say "Anyway, my lawyer got me a diversion program for a year [...]"
Did you plead guilty to the charges and if yes, to which charges exactly? If you did not plead guilty, were you ever found guilty (and of which charges exactly) by the court? Also, which state did this happen in?
The notion of a class C felony varies very much from state to state as does the maximal possible punishment for a particular kind of offense.

The answers to your questions depend on this info.

Also, I am pretty unclear why they charged with with 3 counts of something if it was one bad check. Could you elaborate?

No, I did not plead guilty in front of judge or anybody. My lawyer did his part with the prosecutor and made the deal about Diversion. I was never found guilty on any charges. Even the day the prosecutor gave my lawyer the dismissal document, it was not in front of the judge (in the court room tho). The only thing is, when I was enrolled in the diversion program, the diversion office asked me whether I agree with the Police Report, and I had to say "yes" verbally, otherwise he won't let me in the program.

3 counts because I had 3 checks with (under $10K all together) but only tried to cash one of them.

It happened Missouri.

Please let me know if you have any questions. Thanks for quick reply.

 

[baikal3]

No, I did not plead guilty in front of judge or anybody. My lawyer did his part with the prosecutor and made the deal about Diversion. I was never found guilty on any charges. Even the day the prosecutor gave my lawyer the dismissal document, it was not in front of the judge (in the court room tho). The only thing is, when I was enrolled in the diversion program, the diversion office asked me whether I agree with the Police Report, and I had to say "yes" verbally, otherwise he won't let me in the program.

3 counts because I had 3 checks with (under $10K all together) but only tried to cash one of them.

It happened Missouri.

Please let me know if you have any questions. Thanks for quick reply.

Hmm. I think you need to talk to the lawyer who handled your criminal case and find out more precisely what the deal that he made for you with the prosecutor was. Usually any kind of a deal like that requires the person charged with the crime to plead guilty to something. Maybe you did not plead guilty in front of the judge but it could be that by you agreeing to the deal and signing the appropriate papers you did in fact plead guilty to something. So you really need to check again with the lawyer who handled your criminal case about this.


In general, a conviction for a crime where the maximal possible penalty that could be imposed is more than a one-year sentence (even if the actual penalty imposed was less than that), could make one deportable.

See http://www.law.cornell.edu/uscode/8/usc_sec_08_00001227----000-.html
"(2) Criminal offenses
(A) General crimes

Any alien who—
(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255 (j) of this title) after the date of admission, and
(II) is convicted of a crime for which a sentence of one year or longer may be imposed,

is deportable."

I see that in Missouri the maximal penalty for a class C felony is 7 years in prison:
http://www.missouri-criminal-defense.com/offenses.htm

So if as a part of that deal you actually pleaded guilty to a class C felony in Missouri, that could make you deportable. Thus you need to double-check with your criminal case attorney as to what exactly the deal meant in legal terms and then discuss this with an immigration lawyer.


Regarding the N-400 application, although I still don't understand all the circumstances of your case, in my non-expert opinion if you file an N-400 application now, it will almost certainly be denied. For determining things like "good moral character" they look mainly at the last 5 years prior to filing of N-400. I would think that you need to wait at least 5 years after the completion of your sentence (the "diversion program", whatever that is) to have a realistic chance of N-400 approval. If you actually pleaded guilty to a felony and became deportable, you might need to wait even longer.

Even if you are technically deportable, that does not necessarily mean that, after you file N-400 and USCIS discovers this fact, that they will try to deport you. But they'll have an option of doing so if they choose. The IOs examining such cases have a certain amount of discretion and in general the longer the period of time with a clean record after the deportable offense lasts before N-400 is submitted, the better the chances are that N-400 will be approved.

 

[So_Special]

I agree in whole with all that Baikal3 posted and will add, although I do not know the laws in MO, I do know there must be a verdict on record to bring any sort of criminal case to a closed. Given you were sentenced to community svce via diversion or whatever, I strongly recommend you clearly examine your case records and bring all relevant materials to an experienced immigration attorney. Since your sentence was completed in 2007, I wouldn't go near USCIS for at least 6 years. If you apply now, I am now 97% certain you will be found ineligible due to the 5 year statutory rule. Thats just my opinion.

 

[WBH]

In general, a conviction for a crime where the maximal possible penalty that could be imposed is more than a one-year sentence

Including one year. This make many misdemeanor under state laws become felony in immigration eyes. Of course, in case of OP, felony is already defined by state laws.

 

[WBH]

Even if you are technically deportable, that does not necessarily mean that, after you file N-400 and USCIS discovers this fact, that they will try to deport you. But they'll have an option of doing so if they choose. The IOs examining such cases have a certain amount of discretion and in general the longer the period of time with a clean record after the deportable offense lasts before N-400 is submitted, the better the chances are that N-400 will be approved.

The OP should check if this felony is aggravated felony or not.
It is not likely it is not but better check it out.

If it is aggravated felony, then it is pernanent bar to citizenship
even if they do not deport and let your keep your GC.


http://www.immigrationlinks.com/news/newshints22.htm

 

[WBH]

Since your sentence was completed in 2007, I wouldn't go near USCIS for at least 6 years.

It is an option not to apply for citizenship. But when it come to renew GC,
one does not have much choice but deal with USCIS

 

[WhichWay2Go]

My lawyer did his part with the prosecutor and made the deal about Diversion.

You would have signed some paperwork from your lawyer to accept the plea-bargain to the Diversion program and that would have included a guilty plea, or "accept responsibility," statement. Your Lawyer and the DA would then have gone to the judge in his chambers and said, "we have reached a deal" (or something like that) and the Judge will have singed it off.

You would also have been given a copy of that paperwork, so read it carefully. If you don't have it, it is Public Record so you can go to the County Court house where the issue was dealt with and request a copy. You may even be able to find it online.

Do a search for "Supreme Court" for that State and then search for that County.

A good immigration Lawyer and a copy of that plea-bargain and any other Disposition paperwork will be essential for you. I would do none of the other things you are asking WITHOUT FIRST consulting an immigration Lawyer, as your GC card at renewal time may also be in jeopardy.

I am NOT a Lawyer so handle the above with caution.
.

 

[Al Southner]

Hello,

I have searched the forum quite a bit to see if anybody had posted a thread similar to my problem and could not find one. So posting a new thread. If this was already answered, please post the link for that thread. Thanks in advance. Anyway, here is my story.

I lived in this country over 12 years. Got my GC through my employer in 2004 and so did my wife. We have a daughter who is US citizenship by birth.

In Dec 2005, I was arrested at a bank for cashing fraudulent check (didn't know the check was fraudulent). I was taken to the station and had to stay in jail for 24 hrs. After 3/4 months, they charged me with 3 counts of Felony C (trying to deceit the bank). Anyway, my lawyer got me a diversion program for a year and I had to do 40hrs of volunteer work. So after the diversion year (Oct, 2007), they dropped the charges and gave a "DISMISSAL" document where it lists the "diversion completed" in it.

Now, since I am eligible to apply for citizenship, I was wondering what kind of situation I could face?

Can they deny my application for citizenship? Or my Green Card, means they can deport me? Should I even apply now?

Can I go out of the country to visit my home country and come back to US w/o any problem? Can I be inadmissible to the country?

Sorry for the long thread, but I wanted to explain everything. Thanks very much in advance for your informational posts.

Dude,

You plead to something, because prosecutors won't do a deal without a plea. Read all the court documentation, including ones which your lawyer asked you to sign over because you cannot afford to be ignorant of the true facts of this case. Assuming something that is incorrect will BE a recipe for your demolition by ignorance.

In Missouri, if the check fraud is over $150, the issue is elevated to a felony offense. It is possible you are a felon under Missouri laws, which will raise the stakes from an immigration view point. The 7th Judicial Circuit Court has more and I provided the link....

http://www.circuit.net/pages/offices/prosecutingattorney/check_division.asp

Consult a competent immigration lawyer who has dealt with criminal N400 applicants before, NOT a lawyer who is trying to handle such a case for the first time. My hunch is that you have a long way to wait before even considering US citizenship, because this act here was a humdinger of a crime. USCIS might want to review your GC due to this act. Never served time in jail, but got prosecuted for it, which will be a black mark on your application, which can force USCIS to want more blood from you in terms of deportation...

 

[richmondva]

In Dec 2005, I was arrested at a bank for cashing fraudulent check (didn't know the check was fraudulent).

What do you mean? Did someone else write a check to you that was fraudulent? So was s/he in trouble as well? Then why were you charged and why did you not fight the case pleading "Not Guilty"?

If you agreed to a plea bargain you effectively agreed that you had done it and in that case your statement above becomes redundant and all it does is confuses the people here who could potentially guide you.

 

[WBH]

I doubt anyone who check a fraudulent check without knowing it is faudulent
will actually be charged and convicted. Otherwise any retailer who accept
personal checks would live as if in hell.

There must be more details we do not know.

 

[sanjoseaug20]

I lived in this country over 12 years. Got my GC through my employer in 2004 and so did my wife. We have a daughter who is US citizenship by birth.

Others have given good suggestions on how to handle your case ...

Besides that, evaluate what's the situation with your wife - if her record is completely clean, I would suggest finishing her naturalization at the earliest (check with an attorney if there is any fallout of your record on her file). Your case will of course depend on how good or bad the details are for you, but if you are under the threat of GC not renewing until substantial / statutory time has passed, your wife's citizenship will provide you an alternative at that time.

However, like other threads at this time, I feel that OP has left the building...

 

[WBH]

Your case will of course depend on how good or bad the details are for you, but if you are under the threat of GC not renewing until substantial / statutory time has passed, your wife's citizenship will provide you an alternative at that time.

A citizen spouse has two ways to help:

(1) Deportation can be waivered if deportation cause extreme hardship to the spouse who is a citizen (actually this apso applies if teh spouse is a PR)

(2) If the offense is deportable but not inadmissible or inadmissible
but waiver for such inadmissibility exist), the citizen spouse can sponsor
thee prson for another green card. This is so-callre-adjustrment to permenent residency or re-immigration. Once re-immigration is granted,
the person restart a clean slate - prior deportable offense can not be used anymore

 

[Al Southner]

It is a crime to write a check or attempt to cash a fraudalent check. Ignorance of the law has never been an acceptable legal defense... So, if some guy mail you a check via fedex and ask you to cash it, ask yourself why the mailer can't cash the check themselves? I am certain there is a bank in every state... The OP had three checks, which in the eyes of the law, show a pattern for deceit, whether he knew the checks were fraudalent or not...

If you are caught speeding, telling the officer that you didn't realize you were speeding won't get you a warming, it will be warming the officer to the idea that you think he's crazy...

 

[aka_back]

Question

For the original poster (OP):

1) Why was the diversion program necessary? Did you plead "Guilty" or "No Contest"? - Either of them is unnecessary if a) check was issued by someone who owed you money and there is no way for you to know that it is a fraudulent check or b) it is a payroll check, which are usually issued with funds in the account from which funds are withdrawn via the paycheck

2) As you have not divulged much information, as others suggested, you are better off working with an immigration attorney as these are some serious charges unlike minor traffic violation

 

[WBH]

It is a crime to write a check or attempt to cash a fraudalent check. Ignorance of the law has never been an acceptable legal defense...:

Ignorance of the law is not a legal defense. The mistake of the fact can
be legal defense unless the crime is strict liability crime. Traffic violations
such speeding is a strict liability offense in which neither Ignorance of the
law nor The mistake of the fact is legal defense. But I don't think cashing
check is strict liability issue. If you don't know a check is fraudulent
and if you cna prove you really don't know I don't think you should
be found guilty.

 

[bdCricket]

First of all, thank you all for the suggestions and questions.

I dont want to go into the detail of how I got the checks as it is a LONG story. Bottom line is, I did not know the checks were bad checks. It was my sheer stupidity that I trusted my relative and tried to help him out

Anyway, the "deal" I said that my lawyer made with the prosecutor - I dont they did this in front of any Judge or not. What he told me that "Diversion Program" is like deferring my case (pardon my shortcomings on law knowledge) and during the program if I did not get anymore trouble, then they will drop the charges and dismiss my case, which they did. I have a notarized DISMISSAL copy from the court (am I making sense?)

I DID NOT plead guilty or sign any papers before I enrolled to the diversion program. Like I said earlier in my post that the only thing I had to say verbally that I agree with the police report when I was enrolling in my diversion program.

I have consulted with few Immigration lawyers and except for one, most of them told me to wait 5 more years to apply citizenship from the day my diversion was completed.

If I can visit my birth country and come back to USA with no problem, I have no problem waiting for 5 years. My GC renew year is 2014. That was my biggest question is whether I could get in the country or not.

Also somebody mentioned whether my wife application could have some effect because of my past. She is going to apply pretty soon. Do u guys think we should appoint a immigration lawyer for her application too?

Thanks again for all your comment. I will check back later this afternoon for your comments.

 

[WBH]

Do u guys think we should appoint a immigration lawyer for her application too?

No. Unless she has her own problem otherwise she does not need a lawyer becaose of your problem. On N400 or during interview they do not ask
if your spouses have evere been arrested etc

 

[Mimi1212]

Yeah I think you can always enter the country as long as your passport is good etc, and as long as you don't have a warrant or you are doing something illegal. I say just wait for the 5 years, if you didn't plea guilty then things are looking better for you. Your wife doesn't need an attorney if she is clean; she should go ahead and do her citizenship now just in case you need her as a citizen in the future for your situation.