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    Misdemeanor dometic battery charge, no conviction, and re-entry to the US

    Jurisdiction / State: Kansas

    I am a green card holder who had a very unfortunate family incident where I was arrested and charged with misdemeanor domestic assault (the maximum sentence is 6 months). I plead "not guilty" in the arraignment.



    Since this was my first brush with the law, I was allowed to enroll to a pre-trial diversion program, which I already attended and have completed the counseling courses. My case will be dismissed in a few months.

    My questions are:

    After the dismissal, in case I do foreign travel, will I have issues in the re-entry to the US?
    Will I have problems in the citizenship application 5 years from now?
    Will I have problems renewing green card if I choose not to apply for citizenship?
    Should I expunge my case after dismissal?


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    No cause for alarm!

    The answers are: No; No; No; Redundant.

    First and foremost, you have been only charged with a count of misdemeanor domestic battery and have successfully completed (and complied) with the pre-trial diversion program, the reward for which will be the dismissal of the charge against you and therefore no conviction and no criminal record.

    You are therefore free to travel outside of the United States and as a lawful permanent resident will not be encountering any immigration problems when returning. By the same token, you will not have problematic hurdles with any future application for U.S. Citizenship or renewal of your Green Card; none whatsoever.

    And so the question of whether you should “expunge your case” becomes redundant since a defendant moves to expunge a conviction and not the case and in this case, there will not be a conviction and therefore no need, or indeed, no basis to petition the court for it.

    And to put your mind at ease further, you would still have had no problems with any of the above matters had you even been convicted of the charge of misdemeanor domestic battery. The only time an L.P.R.’s status is revoked and he is placed in removal (deportation) proceedings is when he is convicted of an Aggravated Felony.

    fredrikklaw
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    Thanks for your reply. It has brought great comfort and peace to my heart.

    Just a quick question about your comments about expungement. I understood from your comment that defendant moves to expunge conviction.

    My case manager and an attorney I consulted with encouraged to me expunge my case. So, is it possible to expunge case even though there was no conviction?

    Thank you again! I look forward to hearing form you about the question above.

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    Sure it is!

    Well, it is my pleasure and I’m happy to have been of some help, and of course it is possible!

    For this, you would be petitioning the court in which your case was heard for an order Sealing and/or Expunging your Criminal Arrest (Court & Police) Records since even though you received a Withhold of Adjudication and were not convicted, the arrest records and final disposition of the case will still be on records.

    It is a very simple, painless, and run-of-the-mill process which you start by filing the petition (on judicial forms) with the clerk of the court. If the clerk gives you a hearing date, then you will have to appear before the judge and show cause, but if you are not given a hearing date, the matter will be considered by the judge without a need for a hearing and you will be notified of the outcome by mail, which takes anywhere from 3 to 6 weeks. You are of course, able to do this pre se (by yourself), but have an attorney do it for you if you are not completely up to it.

    Now, if it’s of any further consolation, I know only TOO well just how worrisome and anxious a person can get dealing with immigration matters even on the good days. But you can rest assured that you are going to be just fine on this matter, after which you can look forward with peace to the day when you will be raising your right hand and taking the Pledge of Allegiance to the U.S. Flag and hearing those 6 most wonderful words: Congratulations; you are now U.S. Citizens!

    Best Wishes,

    fredrikklaw
    Only a lawyer can use 10,000 words to write a documewnt and then call it a Brief!

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    Thanks you so much for your encouraging message. I really appreciate it, and it has brought great peace to my heart.

    I am a highly successful professional without any police-related incident in my whole life. This was a very unfortunate incident. I was having a heated argument with my spouse because of a business venture where we were going to invest most of our savings, and my daughter called 911 out of fear. In the city I live, an upscale suburb, one of the spouses is always taken into custody in any kind of family dispute. It was a highly unfortunate incident that we want to put behind and go on with our lives.

    Last question, I promise... In case I do not expunge, since I won't have a criminal record nor conviction, when I am pulled over on a traffic stop or re-enter the US from a foreign trip, will the INS and police see my arrest and dismissal in the computer? Will they raise issues even though they see dismissal?

    Again, I sincerely want to thank you for your guidance. Can you send me a private message with your contact info in case I need your professional services in the future?

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    Proof is in the pudding!

    If there is one promise in your life that you should endeavor not to keep, it is the one you made here. You can ask as many questions as you want and I shall respond to each one to the best of my knowledge and besides, questions are THE main function and stock-in-trade of this forum; so ask away.

    Now to your question;

    When a criminal record is expunged, the evidence of the indiscretion (the records) is removed only from the Public Records data bases, yet it remains in its entirety on governmental agencies and law enforcement data bases for ever. So yes; if you are ever stopped for a traffic offense on the highways and byways, your entire criminal history will still be available to the officer as soon as he enters your driver license number on his computer. The same applies to those occasions when you might be returning to the U.S. and are being inspected by an Immigration Officer.

    But neither a police, nor an immigration officer can “raise any issues” about the subject because there simply is no issue to be raised in the first place and it is not their office to do any Monday-Morning Quarter-Backing. They can, however, make an arrest or refuse entry and some such if you have an outstanding Bench Warrant. Other than that it is a non-issue.

    But let me put the whole thing in a good-news perspective for you just as an afterthought. The biggest indication that all will be alright on the night for you, and indeed are already alright, is the fact that there was no “immigration hold” placed on you when you were arrested. Had there been one, you would not have had the ability to post bail and would have had to stay in jail until final disposition of your case. You would have then been handed over to immigration authorities upon your release from jail.

    Now let’s say that the immigration authorities missed their chances to pick you up at the time you were released from jail for some unknown reason; so like they cannot arrest you at your home or place of business the very next day? The very reason that you are walking around a free man and were not apprehended by I.C.E. and put through Removal Proceedings is proof positive that there is no negative mark next to your ‘A’ number.

    Keep your chin up.

    fredrikklaw
    Only a lawyer can use 10,000 words to write a documewnt and then call it a Brief!

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    Hi,

    I have a friend who applied for a green card. She already had the interview and everything went fine. The only problem is that her green card is on hold till she submits court documents of her arrest. She is on the diversion program which she has completed all the requirements such as 40 hrs of community service, seeing the probation officer and paying the fines. The officer then told her that her case will be dismissed in 3 weeks. Does she need to wait for the case to be dismissed before she can get the court documents?

    Thanks,
    Chris

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    Yes, because documentation won't be completed until AFTER THE CASE HAS BEEN CLOSED. After the case is closed, it can take two to six weeks for the documents to be processed.


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    question: My brother is going to Elsalvador in may he is worried there maybe issues allowing him to return when he checks in at the airport he has a 2010 assualt dropped charges /a few traffic violations/ and a dropped assault charge? is this enough to hold him at the airport when he returns or are these non issues? please advise. non have ever been convicted of nor does he have outstanding warrants

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    freddc has now started his own new current thread - reference http://www.thelaw.com/forums/showthread.php?t=52493 & reply there.
    Blessed is the person who has earned the love of an old dog. S.J. Seward

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