Deportability for Green Card Holders

[rj116]

You may wish to try using an online research tool, such as LexisOne. (That provides free case law from the past five years, and additional case law for a fee.)

Mr. aaron,

Question about deportability for GC holders.

My situation, arrested for CIMT crime ( the max is 1 Year) but there was no prosecution, had to do a community service of 16 hours. The disposition says nothing but it was a nolle prosequi. ( no probation, no fine, no jail, nothing). since there was a restraint on the freedom ( 24hr commnunity service) , i think it is considered as conviction. Is it true ??

2. If I apply for Citizenship ( the incident happened 3 1/2 years ago), what is possiblitiy of denial and, is there any chance of deportation also ?? ( the maximum punishment could have been 1 Year, misdemeanor) As you said it is deportable if it is 1 Year or more? Would I be put in to that category and deport me? Have you known any cases of deporation where the max punishment could have been 1 year

Can you please advise me on this one.
thanks

[aaron]

My situation, arrested for CIMT crime ( the max is 1 Year) but there was no prosecution, had to do a community service of 16 hours. The disposition says nothing but it was a nolle prosequi. ( no probation, no fine, no jail, nothing). since there was a restraint on the freedom ( 24hr commnunity service) , i think it is considered as conviction. Is it true ??

A disposition of "nolle prosequi" means that the prosecutor chose not to pursue the charge. There would be an arrest record, but no conviction.

2. If I apply for Citizenship ( the incident happened 3 1/2 years ago), what is possiblitiy of denial and, is there any chance of deportation also ??

You might be asked to explain the arrest. It probably wouldn't prevent citizenship, and as a resolution by "nolle prosequi" is not a conviction, it shouldn't result in any further immigration problems.

You may wish to consult an immigration lawyer, who can review the specifics of the case and make suggestions as to how you might describe the incident if asked about it, and give you case-specific estimate of whether there is likely to be any impact on your application for citizenship or immigration status.

[rj116]

My situation, arrested for CIMT crime ( the max is 1 Year) but there was no prosecution, had to do a community service of 16 hours. The disposition says nothing but it was a nolle prosequi. ( no probation, no fine, no jail, nothing). since there was a restraint on the freedom ( 24hr commnunity service) , i think it is considered as conviction. Is it true ??

A disposition of "nolle prosequi" means that the prosecutor chose not to pursue the charge. There would be an arrest record, but no conviction.

2. If I apply for Citizenship ( the incident happened 3 1/2 years ago), what is possiblitiy of denial and, is there any chance of deportation also ??

You might be asked to explain the arrest. It probably wouldn't prevent citizenship, and as a resolution by "nolle prosequi" is not a conviction, it shouldn't result in any further immigration problems.
You may wish to consult an immigration lawyer, who can review the specifics of the case and make suggestions as to how you might describe the incident if asked about it, and give you case-specific estimate of whether there is likely to be any impact on your application for citizenship or immigration status.

Aaron,

Thanks for your reply.
I talked to 3 attorneys. Two attorneys think that it is a conviction for immigration ( 24 hour community service) and I should wait 5 years before I apply since that incident happened. They feel that I might even be put in deporation proceedings. Another attorney says that it is not deportable for sure but there is very good possibility of denial.

I am confused now as such, should I apply or not now? And also, I am more concerned about deportation in case if I am denied.

I am just wondering of any cases that you know off , have ever been deported for CIMT crimes for which maximum punishment could have been 1 year? Or is there any place that I find some information about it?

I really appreciate your help.
thanks a lot

[aaron]

I think you should get a copy of the disposition from your court file, and a copy of your criminal record as maintained by the state, and have those documents reviewed by the lawyer(s) you consulted. The documentation may help them assess your precise situation, such that they can be more definitive in relation to immigration consequences.

[rj116]

I think you should get a copy of the disposition from your court file, and a copy of your criminal record as maintained by the state, and have those documents reviewed by the lawyer(s) you consulted. The documentation may help them assess your precise situation, such that they can be more definitive in relation to immigration consequences.

Mr. Aaron,

thanks for your reply.

I have got another question!!!

I was going through the documentation on criminalandimmigrationlaw.com. Looks like in California (i don't know if it makes any difference if it was a different state), solicitation for prostitution may not be considered a CIMT. The customer is not committing a CMT but a prostitue. There are no decisions holding the customer also makes CIMT, .....

A link from www.criminalandimmigrationlaw.com ( where I read)
http://www.ilrc.org/Cal_DIP_Chart_by_section.pdf

MY question is: Can a CIMT be determined based on state laws for Immigration purposes? For example, solicitation for prostitution? a CIMT in Virginia but not in California ?? Is it possible??

Could you please answer this question? Where can I find any related information about this?

thanks a lot

[aaron]

I think the USCIS would strive for consistency but I can see how, due to different elements in state statutes, the same conduct could end up being treated differently based upon differences between state criminal codes.

[rj116]

Mr. Aaron,

I talked to attorneys but they are not that helpful in the sense they are not sure about what happens if I apply for US citizenship. Some of them know what they are talking and most of them do not even know what they are talking.

I have done my own research going through online seraches, BIA apeals, LexisOne tool to find out Maryland rules, etc.

Kindly reply to these questions.

This is what I found from various sources,

1)----The definition determining CMT for immigration purposes!!!

From, www.nationalimmigrationproject.org

8 U.S.C. ' 1227(a)(2)(A)(i), INA ' 237(a)(2)(A)(i).

Definition of Crime Involving Moral Turpitude
In determining whether an offense involves moral turpitude, a fact finder examines the crime as defined by the elements in the criminal statute, not the defendant's actual conduct. Goldesthtein v. INS, 8 F.3d 645 (9th Cir. 1993); Matter of Short, 20 I&N Dec.136 (BIA 1989).
A conviction under a statute in which theft, fraud, or intent to commit bodily harm is an essential element involves moral turpitude.
It is the elements of the offense that determine whether a conviction is a crime involving moral turpitude, not the name or designation of the offense. See, e.g., Hamdan v. INS, 98 F.3d 183 (5th Cir. 1996) (conviction for Louisiana kidnapping offense does not involve moral turpitude).


So it is not the defendant what he said, but the statute text under he is charged??

For this, I found exactly what statue says for the crime-----------
From Maryland Statute

§ 11-306. House of prostitution
(a) Prohibited.- A person may not knowingly:
(1) engage in prostitution or assignation by any means;
(2) keep, set up, occupy, maintain, or operate a building, structure, or conveyance for prostitution or assignation;
(3) allow a building, structure, or conveyance owned or under the person's control to be used for prostitution or assignation;
(4) allow or agree to allow a person into a building, structure, or conveyance for prostitution or assignation; or
(5) procure or solicit or offer to procure or solicit for prostitution or assignation.
(b) Penalty.- A person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 1 year or a fine not exceeding $500 or both.

[An. Code 1957, art. 27, § 431; 2002, ch. 26, § 2.]

My issue falls on item no. 5 that is solicit for prostitution.

Would you think it will be treated as a CIMT now??

QUESTOIN NO. 2
----------------------

About the CIMT and expungement about Maryland stuff!!

Enclsoing the codument from Board Of Appeas for

Ozkok, ID#3044, 19 I&N Dec. 546 (BIA 1988)
http://www.usdoj.gov/eoir/vll/intdec/nfvol19.htm

1) A conviction exists for immigration purposes where an alien has had a formal judgment of guilt entered by a court or, if adjudication of guilt has been withheld, where all of the following elements are present: (1) a judge or jury has found the alien guilty or he has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilty, (2) the judge has ordered some form of punishment, penalty, or restraint on the person's liberty to be imposed, and (3) a judgment or adjudication of guilt may be entered if the person violates the terms of his probation or fails to comply with the requirements of the court's order, without availability of further proceedings regarding his guilt or innocence of the original charge. Matter of Garcia, 19 I&N Dec. 270 (BIA 1985); Matter of Zangwill, 18 I&N Dec. 22 (BIA 1981); Matter of Seda, 17 I&N Dec. 550 (BIA 1980); Matter of Robinson, 16 I&N Dec. 762 (BIA 1979); Matter of Varagianis, 16 I&N Dec. 48 (BIA 1976); Matter of Pikkarainen, 10 I&N Dec. 401 (BIA 1963); and Matter of L-R-, 8 I&N Dec. 269 (BIA 1959), overruled in part.


MY ANSWERS TO, CASES RELEVANT TO THE ABOVE POINTS,

Of above three elements, point 1) is not valid, but point is valid because there was 16 hours of community service. The third point is not valid, I would have gone to trial if I did not do my community service but I woud not have been entered to have been found guilty without further availablitiy of proceedings. It was a nolle prosecuqi by the state attorney. I met only point no. 2 ( restraing order of 24 hours) not the 1 and 3 points.

With the above analysis, it is not a conviction for me.
What do you think ? Am I spilltting the hair here ?

(2) A conviction for a crime involving moral turpitude may not support an order of deportation if it has been expunged. Matter of Gutnick, 13 I&N Dec. 672 (BIA 1971); Matter of Ibarra-Obando, 12 I&N Dec. 576 (BIA 1966; A.G. 1967); Matter of G-, 9 I&N Dec. 159 (BIA 1960; A.G. 1961), followed.

If my crime is is treated as CIMT in Maryland, my record is almost close to expungement. I applied for it 5 months ago, I got a letter from court saying that is signed by the Judge and it will be expunged anytime. I have gone through the documents from BIA decisions related to cases that were applied in Baltmiore (Maryland), in one of the decisions clearly say that they did not deport the persons involved in CIMT in Maryland if they qualify to apply for expungement. Give them an opportunity to apply for expungement in Maryland, one can apply for expungement mainly three dispositions, example Acuqitted, dismissed, Nolle Prosequi.

Mine is Nolle Prosequi for the CIMT crime not exceeding 1 year.
With the expungement, I feel that at least I am NOT deportable.

What do you think?

(3) A conviction for a narcotics or marihuana violation is final regardless of the possibility of expunction. Matter of A-F-, 8 I&N Dec. 429 (BIA, A.G. 1959), followed.
Expungemnet does not apply for all cases but some CIMT cases ?????


Am I convicted for immigration ?
Is it a CIMT ?
AM I deportable for this CIMT after expungement
If I apply for US Citizenship will I be denied & may be put in deportation proceedings then ?

I am really confused.
Can you please reply to this posting. I really appreciate your help.