Will a Misdemeanor Back in 1990 Hurt My Naturalization Application

[calila]

Hi, back in 1990 when I was young and stupid I listened to a friend's brilliant idea to make some much need money ( I was a victim in a bad DUI accident ).

Result: I was arrested and charged for Grand Theft 487 PC Misdemeanor (California). I pleaded no contest and received Imposition of Sentence Suspended ( no sentence was imposed ), Summery Probation for 36 months and Restitution. The arrest and the court's decision both happened before November 29, 1990 which according to a few sites I came across is significant to convictions of certain crime.

In 1992 I completed the probation sucessfully and made all the restitution so the case was closed.

In Jan, 1997 I was granted expungement (1203.4/123.4A) and have not had any problems with the law since.

I became a Permanent Resident in March, 2001. I fully disclosed my 1990 arrest and disposition of the court case in my Permanent Resident Application.

The 1990 offence was my one and only criminal offence and I am wondering if I have anything to worry about if I file for Naturalization?

I did a lot of reading online and they all seems to say that for Theft Offences, if the sentencing was for less then on year then it should not be a bar to Naturalization and since I was never sentenced I should be ok.

Another arguement that I had heard about my situation was that since they knew about my 1990 arrest and still approved my Green Card they at the very least will not take away my Green Card and deport me.

I am trying to decide whether to get legal asistance in filing for Naturalization or to just file it myself if my 1990 offence is not going to be a problem for me.

Thanks in advance for any advice.

BTW, if my post looks familiar it is because I posted the same post on expertlawforum before I discovered this forum.

 

[Usher]

I think, but I'm not sure, that there's a question on the N400 that says "Have you ever been arrested, detained, cited, etc.." To which you'll obviously have to answer yes. I think you should take all the documents you have pertinent to your case, and explain the situation to your adjudicator. Be straightforward and forthcoming, and the truth shall set you free.

That or you could do the smart thing and consult a good lawyer.

 

[calila]

I think, but I'm not sure, that there's a question on the N400 that says "Have you ever been arrested, detained, cited, etc.." To which you'll obviously have to answer yes. I think you should take all the documents you have pertinent to your case, and explain the situation to your adjudicator. Be straightforward and forthcoming, and the truth shall set you free.

That or you could do the smart thing and consult a good lawyer.

Yes that is what I planned on doing, being completely honest about the whole incident. I have gathered all the court paperwork and also my accident report, not that it's an excuse for what I did but to show the interviewer what I was going through hopefully he or she will see me as a person who made a bad decision looking for an easy way out and not a career criminal.

I am just worried that by applying for naturalization I am opening myself to the possibility deportation even though they gave me my Green Card with full knowledge of my 1990 arrest.

Thanks for your advice

 

[Bobsmyth]

What status were you on when you committed the crime? Imo, since the conviction falls outside statutory period, it won't be used for GMC determination unless you have committed any criminal offense(s) since. Also, the GC process would have triggered any potential deportation since you had disclosed it at the time.
You'll still need to disclose it and bring documentation to the naturalization interview as a matter of record.

 

[WBH]

Another arguement that I had heard about my situation was that since they knew about my 1990 arrest and still approved my Green Card they at the very least will not take away my Green Card and deport me.

http://www.usdoj.gov/eoir/vll/intdec/vol20/3191.pdf

"MAtter of Rainford - BIA 1992 (http://www.usdoj.gov/eoir/vll/intdec/vol20/3191.pdf )" says that a person after Adjustmend of status will not be deportable any more based upon prior conviction for an offense that is even deportable. This assume that this conviction does not make the offender inadmissible for the purpose of adjustment of status. So if everything was done right, that is you disclosed your offense and the offense
was not an inadmissinle offense, then your green card should be safe.

 

[TheRealCanadian]

I'd be curious if that 1992 BIA decision was superceded by the INA of 1996; there were a lot of things changed by that law.

Bottom line - consult an attorney. You don't need them to file your N400 for you, but you do want a 1 hour consultation to get an opinion. Shouldn't cost you more than $100 or so. Might not hurt to get three opinions to be safe, then decide.

 

[WBH]

I'd be curious if that 1992 BIA decision was superceded by the INA of 1996; there were a lot of things changed by that law.

This pretty new document guiding how to defend immigrants still (http://www.ilrc.org/resources/DV_article_Brady_1.07.pdf) cite this
1992 BIA decision. Actually it mention that domestic violence was made as a deportable offense by the INA of 1996. But still domestic violence
was not made an inadmissible offense so Matter of Rainford can apply.

the INA of 1996 did not equate deportability with inadmissbility.
But if the opinions of matter of rainfod is not held, it is pretty much meanningless for inadmissibility to be different from deportability, that is
the only purpose of admit someone who has done thing deportable but not inadmissible is to deport him right after admission.

There is another interesting case thatis very recent. BIA interpreted differently. A case involved a rule that some offense was deportable
if it is commited within 5 years of admission. A lady commited that offense witin 5 years after she became PR so USCIS tried to deport her.
She argued that her admision should be her entry into USA on a F-2 visa so that her offense occurred after 5 years after her admission.

Here is a link http://caselaw.lp.findlaw.com/data2/circs/6th/063665p.pdf

 

[Jackolantern]

Another arguement that I had heard about my situation was that since they knew about my 1990 arrest and still approved my Green Card they at the very least will not take away my Green Card and deport me.

That is probably true, but in the years after your green card, they have been deporting and attempting to deport people more vigorously, thanks to 9/11 and the more recent political debates over immigration. A few hundred dollars for some legal consultations is not a lot compared to the possible consequences of your application if it turns out badly. Get the lawyer(s) to look through your court paperwork and specify why (including which relevant law or court precedent) they can't deport you for that offense even if they wanted to.

 

[WBH]

That is probably true, but in the years after your green card, they have been deporting and attempting to deport people more vigorously, thanks to 9/11 and the more recent political debates over immigration. A few hundred dollars for some legal consultations is not a lot compared to the possible consequences of your application if it turns out badly. Get the lawyer(s) to look through your court paperwork and specify why (including which relevant law or court precedent) they can't deport you for that offense even if they wanted to.

Can one with such problem just turn himself in by going to USCIS and directly consult USCIS officers
by saying:"Here is my situation. Please look into my court papers. If you want to deport me, then
deport me now. If you don't think I am deportable. Then explain to me why. I
want to settle this issue once and for all".

 

[WBH]

.

I became a Permanent Resident in March, 2001. I fully disclosed my 1990 arrest and disposition of the court case in my Permanent Resident Application.

How likely is it that USCIS did not carefully read one's I-485 package
and just approved it in order to clean up backlog?

If you like, you can fill G-639 form and file a FOIA request to get copy of your immigration file to see if there is an internal decision made regarding
your offense you disclosed in I-485 application.

The bad thing is it takes up to one year to get your files.

 

[Jackolantern]

How likely is it that USCIS did not carefully read one's I-485 package
and just approved it in order to clean up backlog?

It happens sometimes with misdemeanors, because it is not obvious that it is a deportable crime unless they really dive into the details of the crime and the sentence to see if it should be reclassified as an "aggravated felony" under immigration law. Also remember this was early 2001, before 9/11 and before the big controversy over immigration reform, so they were less diligent than they are now.

 

[WBH]

It happens sometimes with misdemeanors, because it is not obvious that it is a deportable crime unless they really dive into the details of the crime and the sentence to see if it should be reclassified as an "aggravated felony" under immigration law. .

What I meant is that could it be even possible they even did not see
a Yes box is checked to that question:"Have you ever been arrested,
cited, detained, charged, convicted, .....?" nor did they see some court
disposition papers were attached.

 

[Jackolantern]

Can one with such problem just turn himself in by going to USCIS and directly consult USCIS officers by saying:"Here is my situation. Please look into my court papers. If you want to deport me, then
deport me now. If you don't think I am deportable. Then explain to me why. I want to settle this issue once and for all".

If you did that, their response would either be to ignore you, or to put you in deportation proceedings to let the lawyers and judge figure it out. It won't be settled in a USCIS office, it would be settled in court.

 

[WBH]

If you did that, their response would either be to ignore you, or to put you in deportation proceedings to let the lawyers and judge figure it out. It won't be settled in a USCIS office, it would be settled in court.

I do hear story or jokes some out of status folks turn themselves in, thinking getting deported means a free ticket to their home countries so they don't need to buy a ticket themselves

 

[WBH]

If you did that, their response would either be to ignore you, or to put you in deportation proceedings to let the lawyers and judge figure it out. It won't be settled in a USCIS office, it would be settled in court.

I wonder if a law could be passed soon that requires any noncitizen to report
to USCIS with 30 days after the disposition of any criminal charge and makes
failure to report itself a reportable criminal offense regardless of whether the
offense that should be reported is deportable or not.

 

[calila]

Thanks for all your replies.

Answer to Bobsmyth's question, in 1990 I was 'out of status' after entering the US with a F-1 Student Visa which expired in 1987.

Question, I filed my GC paperwork using a service and they had since destroyed my file (claiming that after 3 years it's legal for them not to keep it) and I do not have a copy of my GC application. Will the Naturalization interviewer have a copy of it at the interview as part of my Immigration file? Without it how will he or she know that I did disclose my 1990 arrest on my GC application and interview?

The G-639 suggestion from WBH is a great idea. I will look into it to see how long it will take for me to get it. A bit of information regarding to my GC interview, the interview went quite well and it lasted only 15 minutes. I went in there with my attorney and my wife. At the end of the interview the interviewer did not give me a determination right away and I was told to return at 2pm (interview was at 11am) for the result. Does that mean that an internal decision was probably made regarding to my 1990 arrest before they decided to approve my GC application?

I will look into getting some legal advice next week. Another question, do you guys think it is a good idea to go to my Naturalization interview with an attorney? That was suggested to me by a friend but I worry that the presense of an attorney will rub the interviewer the wrong way and ended up with the opposite effect. What is the percentage of Naturalization applicants show up at the interview with an attorney?

Thank again for all your replies.

 

[WBH]

Will the Naturalization interviewer have a copy of it at the interview as part of my Immigration file?

I am not sure if they have a copy during the interview but I believe they
have your past immigration file when reviewing your citizenship application.

A couple from Philipines (doctors welcome loved by their local community) were in deportation proceeding because they originally got their GC thru
their parents sponsoring them as unmarried under 18 children. Then during citizenship application process, USCIS found they were actually married in Phipine before they got the GC. They were accused of immigration fraud
(they hid their marriages when they applyed for GC as unmarried under 18 chidlren.). Judging by this, I assume USCIS re-review your old immigration
files during citizenship process. Rememebr on N-400 there is no question about how the applicant got the GC

 

[calila]

I am not sure if they have a copy during the interview but I believe they
have your past immigration file when reviewing your citizenship application.

A couple from Philipines (doctors welcome loved by their local community) were in deportation proceeding because they originally got their GC thru
their parents sponsoring them as unmarried under 18 children. Then during citizenship application process, USCIS found they were actually married in Phipine before they got the GC. They were accused of immigration fraud
(they hid their marriages when they applyed for GC as unmarried under 18 chidlren.). Judging by this, I assume USCIS re-review your old immigration
files during citizenship process. Rememebr on N-400 there is no question about how the applicant got the GC

That makes sense.

Thanks

 

[Jackolantern]

Does that mean that an internal decision was probably made regarding to my 1990 arrest before they decided to approve my GC application?

Yes, I think they require all applications (citizenship or GC) to be reviewed by a supervisor before approval, if there are any criminal arrests or convictions involved.

I will look into getting some legal advice next week. Another question, do you guys think it is a good idea to go to my Naturalization interview with an attorney? That was suggested to me by a friend but I worry that the presense of an attorney will rub the interviewer the wrong way and ended up with the opposite effect.

Don't worry about "rubbing the wrong way". That already will happen when they see the criminal incidents. The presence of the attorney helps to prevent them from bullying you and "witch hunting" you to extract more incriminating details.

 

[calila]

Yes, I think they require all applications (citizenship or GC) to be reviewed by a supervisor before approval, if there are any criminal arrests or convictions involved.

That makes sense.

Don't worry about "rubbing the wrong way". That already will happen when they see the criminal incidents. The presence of the attorney helps to prevent them from bullying you and "witch hunting" you to extract more incriminating details.

Very true, that was why the gentleman that will be processing my application was suggesting that he should arrange to have an attorney present during the interview. The only thing I am wondering is that if I should get in touch with an attorney before sending the paperwork in just to get a second opinion instead of just replying solely on my application processor assessment on my chances of a trouble-free Naturalization application.

Thanks for the reply