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Deportation After Completion of Diversion Program

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  • 03-19-2006, 04:20 AM
    kerty9
    Deportation After Completion of Diversion Program
    Case history:

    I am a greencard holder since 1982. In 1996, I had bought one sex video tape involving pre-teens from US postal undercover officer. I was arrested and my house was searched - they found no other evidence of child porn or prior criminal record. Child exploitation Charges were filed by the US District court, Northern illinois destrict court, eastern division but the complain was dismissed without prejudice by the judge. The prosecutor offered me pre-trial diversion(2yr) which I completed sucessfully.

    recently, I was detained by immigration and customs while returning to usa from vacation abroad. Their computer record shows that I had an arrest, convicion and a 2 yr probation. I showed them court disposition paper that says that the complaiin was dismiissed without perjudice. But it failed to convince the immigration officer. They took my greencard and asked me to appear before chioago-based US customs and border protection agency with certified copies of court papers.

    I have applied for citizenship and submitted certified copies of court records in februray but INS officer has not completed the evaluation of my case yet - I have a local immigration lawyer working on pending citizenship case

    Questions:

    1) Are pre-trial diversions in child exploitation cases considered convictions by INS? Are they deportable?

    2) What legal recourse do I have to handle this matter and avoid deportation?

    3) Who is reputable and experinced chicago-based lawer who has handled similar cases with suceess?

    Thanks
  • 03-19-2006, 05:04 AM
    Mr. Knowitall
    Participation in a diversion program may not be enough to avoid deportation. For example:

    Quote:

    Quoting 8 USC 1182(a)(2) - Section 212(a)(2) of the INA
    (2) Criminal and related grounds
    (A) Conviction of certain crimes
    • (i) In general Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of —

      [list:02d7e63992](I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or

      (II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21),
      is inadmissible.

    (ii) Exception Clause (i)(I) shall not apply to an alien who committed only one crime if—

    • (I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or

      (II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).
    [/list:u:02d7e63992]

    You may wish to look for counsel through the AILA website's directory.
  • 03-23-2006, 07:04 PM
    moviejim
    As far as question #1, pre-trial diversion programs work very differently in different jurisdictions. If a pre-trial diversion doesn't require a guilty plea and any admissions, then it is not a convicton.

    But on the other hand, if yours did, then it is a conviction according to the INS.

    If it is a conviction, you have to look at USC 1182 as suggested by Mr. Knowitall and USC 1227 to see if your conviction qualified for any exceptions.
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