Criminal Law Convicted or not?

[austin188]

There seems to be alot of threats about shoplifting but I haven't seen an answer for mine so here is my story.

3 years ago, I was caught shoplifting at a store. I was not arrested - just detained in the back of the store, and police was called on the scene. I received a citation for Class C Misdemeanor for Theft under $50 and was assured that I was not arrested. I went to court and received deferred disposition. I took a theft class, did some community service, paid the court costs, then went back to court and was told that my case was dismissed. I applied for a investment banking firm and had to get fingerprints and my criminal record through the DPS - everything came out clean...I have no record.

I am now applying for US citizenship and was honest to my immigration lawyer about what happened. He wants me to say that I was convicted of the offense because I plead no contest in order to receive deferred disposition. I agree that I should check "yes" for questions about whether I have been detained/arrested/cited, whether I have ever been charged with a crime, and whether i was placed in alternative sentencing but I DO NOT agree with my lawyer that I should check that I was convicted. I think I should check "no" because it is not my my record and the case was dismissed. He says that it will be better to say yes and then talk to the interviewer to see if he/she considers that a conviction rather than being accused of lying (although unintentional). Your thoughts please?

 

[NYClex]

Your attorney is right, the issue of what is a "conviction" under immigration law is pretty murky since states have invented many alternative dispositions. Usually it is interpreted this way: whenever a judge imposes something on you that you would not otherwise be obliged to do, like pay a fine, attend classes, do service etc. then immigration law considers this a "conviction", even if the state will call it differently. Pleadings of "guilty" and "nolo contendere" usually are indicative for a conviction.

During your interview you should stress the fact that under state law the case was dismissed and if your record otherwise is clean you should probably not have any problems. But interviewers hate it when they feel someone is not honest with them and tries to hide something by placing a "no" on the application.

 

[Noor]

NYClex can correct me if I am wrong, but it's quite likely that you qualify for the Petty Crime Exemption, even if you are convicted. Please check the maximum punishment for the statute.

 

[austin188]

Your attorney is right, the issue of what is a "conviction" under immigration law is pretty murky since states have invented many alternative dispositions. Usually it is interpreted this way: whenever a judge imposes something on you that you would not otherwise be obliged to do, like pay a fine, attend classes, do service etc. then immigration law considers this a "conviction", even if the state will call it differently. Pleadings of "guilty" and "nolo contendere" usually are indicative for a conviction.

During your interview you should stress the fact that under state law the case was dismissed and if your record otherwise is clean you should probably not have any problems. But interviewers hate it when they feel someone is not honest with them and tries to hide something by placing a "no" on the application.

So is it best to wait after 5 years of when it happened (it's been frequently mentioned that they focus on the last 5 years although they can look at any time period) or go ahead and apply and be really honest and pray for an understanding interviewer?

 

[castro76]

So is it best to wait after 5 years of when it happened (it's been frequently mentioned that they focus on the last 5 years although they can look at any time period) or go ahead and apply and be really honest and pray for an understanding interviewer?

I thought after those kind of programs and since the case was dismissed and charges were dropped it wouldnt be considered as convicted??? Thats why they have those programs, to give people second chances and keep them clean, havent they?
Convicted if the person was convicted and went to jail or was sentenced to probationor smth like that, right?
Arrested-YES, convicted-NO, correct me if I am wrong,
thanks

 

[NYClex]

The problem is that there is a huge difference between the intentions of state laws and federal immigration law.

While the state laws intent to give people who have been convicted of minor matters another chance to find employment etc., federal immigration law is much stricter. In most cases it considers even such an alternative disposition as a conviction, or in other, somewhat simplified words, a criminal alien does not get another chance, no matter what the state court says.

 

[elvira]

detained - not arrested?

Hello all,

So if i understand this correctly, it is ok to check now on a visa application if there was not actual arrest and takig to jail, but jsut detainment in store?

Thank you all