Criminal Law How dismissed misdemeanor affect immigration

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miserable

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Hello2 years ago, I was charged with domestic crime (which is misdemeanor in MA) by the agreement with the prosecutors I recieved one year of probation (may be it's "informal probation"). Afteer being one year on probation my case has been dismissed. My criminal records show the following:

Date 1: Continuing without finding supervising by probation
Date 2: Dismissed

I'm on H1b visa now and I need to get extension of stay.

The questions are:

1. Do I have to declare that "I was convicted in crime"? MA says, that I'm not convicted, but what INS/BCIS does think?

2. Do I have to declare that I was arrested?

3. Any possible difficulties in extension of visa or filing 485?

Thank you so much in advance!
 
If I read this correctly the prosecutor has dismissed the charges? You have not been to court and did not plead?

Then you are off the hook.

But be careful, domestic violence ( I gather that this is what you meant) generally is a crime which leads to deportation, if someone is bening convicted of it.
 
NYCLex, Yes, you read correctly, after probation period the charge has been dismissed and I didn't plead the guilty at all.
But I was at the court (pre-trail) where prosecutor gave me a deal of "Continuing without finding".

Thank you for good news!
 
as long as there is no "judicial finding of guilt" you are safe :)
 
I'm in agreement with NYClex. If the case was dismissed by the prosecutor, then you were never convicted of the crime. This happens frequently and is a good deal for you since the case is then reported as dismissed and your record is clean. From my perspective I would think you could answer the question of whether you have been convicted of a crime in the negative since you have not been convicted. Good luck to you!

Originally posted by miserable
Hello2 years ago, I was charged with domestic crime (which is misdemeanor in MA) by the agreement with the prosecutors I recieved one year of probation (may be it's "informal probation"). Afteer being one year on probation my case has been dismissed. My criminal records show the following:

Date 1: Continuing without finding supervising by probation
Date 2: Dismissed

I'm on H1b visa now and I need to get extension of stay.

The questions are:

1. Do I have to declare that "I was convicted in crime"? MA says, that I'm not convicted, but what INS/BCIS does think?

2. Do I have to declare that I was arrested?

3. Any possible difficulties in extension of visa or filing 485?

Thank you so much in advance!
Click to expand...
 
immigration and international

Dear 'miserable',
I have a similar situation to yours (It was a shop-lifting incident that happened about 4 years ago ; I was charged with larceny over $250. I pleaded not quilty and was put on a pre-trial
probation which I successfuly completed. The case was dismissed, and I was, hence, not convicted).

I am wondering if your case caused complications the first time you applied for an H1-B visa or were you already working when this happened?

Also, have you re-applied for an entry visa back into the US since your case occured? If so, did you have any complications?
Thanks very much.
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To the LawProfessor (and the rest of the Law-forum community):

Dear LawProfessor,
Your reply to 'miserable' reads: "If the case was dismissed by the prosecutor, then you were never convicted of the crime. This happens frequently and is a good deal for you since the case is then reported as dismissed and your record is clean. "
Does this mean that the record is erased and does not exist any more?

In the case of applying for an H1-B for the FIRST time, I am curious if employee forms ask for a past incident of arrest. If so, I am worrid that the history of a past arrest cause complications in the process.

I also wonder if the history of arrest/trial would cause complications in the case of applying for a more permanent visa status.

I would also very much appreciate your opinion on the effects of my case on an entry-visa application. I am worried that it may be reported somewhere and thus prevent me from getting a new entry visa in the consulate. In this case I am thinking of avoiding travelling although I would very much like to visit home. Is there a need for reporting the case in the consulate?

Thank you very much.
 
as I have written above, to have an adverse effect on the visa process there must have been what jurists call an "adjudication of guilt." A mere arrest, or dismissed charges are not such an adjudication of guilt.

If an employer asks you if you have ever been "arrested" techincally you should answer yes. If he instead asks "have you ever been convicted of a crime", then in the above case you could answer "no."

Official immigration forms ask the latter question.

There is no need to report the case to the authorities. What could happen is when you apply for a new visa or a different visa and a fingerprint check is being made your arrest might come up in the system. In that case the CIS or the consulate might want to know from you what was going on. Then you would have to submit your paperwork showing that the case was dismissed.
 
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Dear NYClex,
thanks very much for your prompt reply.

I think I have a fundamental lack of understanding of what exactly it means to have a 'criminal record' and if it is possible to expunge it.
Is having a file (which I used to have in court) equivalent of having a record? Do I have one?

Also, what does it mean exactly to 'expunge' one's record?
Is this possible in all US states?
Does a dismissal of my case automatically imply that my record will be expunged or am I still considered to have a 'criminal record'?

When you said "Official immigration forms ask the latter question", do you mean the Official Immigration office in the US or the US consulate offices? I think that the entry visa application asks for a history of arrests.

Do you know if consulate offices run fingerprints checks when issuing a new student entry visa? What about ports of entry?
Do you think I may be in danger of being identified with a 'record' in the consulate abroad or at the port of entry and hence have a delay with getting a new entry visa/entering the country? (My incident happened 4 yrs ago).


Thank you very much in advance. I appreciate it greatly.
 
Dear NYClex,
In addition to my previous post, I'd like to ask your opinion on the article on U.S. Visa News from 2003 that I found at
http://www.usvisanews.com/memo1975.html

The part that is relevant to my case is the following:
"
U.S. Visa News www.usvisanews.com
Unexpected Surprises at U.S. Consulates Post-9/11
By Lorenzo Lleras Friday, January 3, 2003

By now it has been well publicized that applicants at U.S. consulates in nearly 30 countries now have to undergo additional security clearances before being issued a U.S. visa. However, there are a couple of aspects concerning security clearances that have not been so well-publicized. Anybody, regardless of his/her country of citizenship, birth, or nationality who is on his/her way to get a visa stamp abroad should be aware of them.


The first issue is that when a person requests a U.S. visa, the consular officer is supposed to run a background check on the name. In the time since 9/11 alone 7 million names of people suspected of committing criminal infractions have been added to the database, including names of those wanted for such infractions as DUIs and shoplifting. If the visa applicant's name resembles a name appearing in the database, that individual will be asked to provide fingerprints. The fingerprints will then be referred to the FBI to verify whether the visa applicant is or is not the person who appears on the database of criminal infractions. The more common the visa applicant's name and last name, the higher the chance that a visa applicant could encounter this issue."

I'm not exactly sure which database they're talking about (fbi??), but given that my case has not had a criminal conviction, is there a possibility for me to be in this database?
From this exercept, it seems to me that they're running fingerprint checks only on the people in the database and that these are people who have actually been convicted. Am I right?

I guess this relates exactly to my question of 'what is a record' that I posted earlier. An entry in the database mentioned in the article, or a mere court file, or either of the two?
 
How to answer this without writing a book? :)

Let me get to the heart of the question first: Without knowing the details of the crime it is impossible to say if an expungement of a record will mean that there will be no deportation or inadmissibility or not.

But this can be said: Usually a conviction of a crime of "moral turpitude" leads to deportability and inadmissibility. That means, an alien convicted of such a crime cannot obtain a visa to enter the States or, if he already is in the States, is subject to deportation.

Now, the definition of "crime of moral turpitude" is the first stumbling block. What is this? The courts have so far included any sexual offense, most kind of thefts including even petite larceny, shoplifting etc, burglary, but also repeated driving while under the influence of alcohol.

Once it has been established that there is a crime of moral turpitude, then it needs to be established if there is a "conviction." This also has been the subject of many lawsuits. What is a "conviction" in the eyes of the immigration law? A short definition is: any final adjudication of guilt. Now this is also a jurists' term, but it really is too broad a topic to describe that here in detail. Let's make it short, if necessarily a little imprecise: it is only a conviction if a judge entered a judgement of guilt. If you were given probation with the possibility of dismissing the charges after the probationary period and similar things, it would not be seen as a "conviction" for immigration purposes.

Now, even if a conviction occurred, there is the matter of expungement. Does an expungement mean that you cannot me deported or kept outside the US? That, too, has been hotly contested in court. Today this can be said:

In most cases of crimes of moral turpitude the CIS policy is to accept an expungement as removing deportability or inadmissibility, in other words, if the record has been exponged, you will not be inadmissible or deportable because of that crime.

BUT, that still does not go for every case. Drug cases, aggravated felonies and similar crimes are being treated differently.

So you see, there are so many variables and exceptions to the rules that I recommend to consult an immigration attorney prior to any visa application or visa renewal if there was any criminal proceeding against you except for a clear cut dismissal of the charges.

If your case was dismissed you should not have any problems. But for peace of mind, check the details with an immigration attorney.

By the way, yes, Department of State Visa applications ask for "arrests" as well as for "convictions." Consular officers then will apply the rules I mentioned when you answer this question with "yes." An arrest that was not followed by criminal proceedings, though, will never lead to inadmissibility.


Last: What does expungement actually mean. Here I quote from a website:

When records of an arrest or conviction are sealed or expunged (a notation is made in the file that the records are off limits to all except law enforcement personnel), defendants can, for some purposes, treat the arrests or convictions as though they had never happened. For example, assume that a defendant's conviction for misdemeanor possession of an illegal drug is expunged. On applications for school, a job or a professional license, the defendant may be able to answer that the defendant has no arrests or convictions (assuming no others exist). However, the rules about who is eligible for expungement, and the effect of expungement, vary from state to state, and people interested in expungement should seek the advice of an experienced attorney.
 
entry visa and dismissed charges

Thanks very much NYClex.
Sorry about the length of my posted messages. I catch myself running in circles with all the question and worries I have. I very much appreciate your advice and the time you put into answering my questions.

Though the topic itself is confusing, you made it clear what a conviction means from a legal point of view.

In my case there was a clear cut dismissal of larceny (shop-lifting)
charges after I met the terms of pre-trial probation (community service work). As I wrote earlier, there was no criminal conviction, and I didn't even have to show up in court for the dismissal of charges.

I don't think I am still clear on the following:
1) Given that the charges were dismissed and I was never convicted, do I still have a criminal record?
And do you think I am in the database mentioned in the article?

2) As I wrote earlier, I'd like to leave the US and visit home this
summer. I haven't been going home in several years fearing that I
might not be able to get another entry student visa.
Here's why:

I know that the consulate officers are not laywers. If a person was never officially convicted, this doesn't mean that the incident never happened.
I am afraid that the consulate officers hold the power not to issue a visa based on their personal belief that the crime still happened although the records show dismissal of charges and no conviction.

Since I was told by my lawyer 4 yrs ago when the incident happened (and by the way, it didn't happen to the large extent to which it is described in the report by the sales person) to plead 'NOT GUILTY' in court, I feel compelled to say the same to the consulate officer.
BUT, would I then be comitting an offense against the consular officer by saying that I haven't comitted it if she/he pursued the matter in more depth after answering my answering 'yes' to the arrest question on the visa applicaiton?

I am wondering if it's easier just to say 'NO' to the arrest/conviction question on the visa application since I do not see a reason why my case would show up in the 'criminal database' that the consulate offices access since the case was dismissed 4 yrs ago and there was no criminal conviciton.

Do you agree? Do you think that these databases keep track of every foreigner who was ever arrested and that they run fingerprints checks on every person at the consulate and at the port of entry? If indeed they do so, do you think that there is a possibility that I would come up in this database given the circumstances of my case?
Are there consequences to saying 'no' (lying) to the arrests question?

In any case, if I expunge my record, I could say 'no' to the arrest question, right?


Thanks very much NYClex. I wish I can burry this petty incidentand not have it haunt me. It's been a burden of a stupid action I live with every day.
 
I wish I could give you a clear cut answer, but in dealing with the INS there is nothing like that... :)

The idea is that law enforcement agencies report every arrest of a foreigner to the INS, or nowadays the CIS. Either the police, or latest the D.A.'s office should do so. This information will then be included in your alien record, that is all the data about you that the INS has collected because of visa applications etc.

Now, the problem is, that many law enforcement agencies are very sloppy in doing this. So you never really know if they reported it or not, unless the INS contacts you about it.

But in your case I would assume they did. So it will be on the record. The fact that the INS never contacted you about it shows that they follow the law and do not regard this as a reason for deportation.

So on any future applications it would be much worse to lie than to admit to that history.

Just remember, without actually knowing all the details of a case and how the INS is handling this particular case I cannot guarantee anything I write here. I can just outline the basics of the law, this is what I did above. Or, in the words of an INS official I sometimes have to work with: "Theoretically nothing could happen, but if I were you, I would not test it." :) Meaning: if you don't really need to leave the country I would rather stay until the end of your studies.

If you really need a clearer answer I fear you should officially consult an immigration lawyer.
 
Thanks a lot NYClex,
I will consult an attorney.

There is an alternative solution that I am considering:
I am thinking about was finding a job and
stopping my studies in which case I would need to transfer to the H1-B visa status. Once in H1-B, I think I could ask for an entry visa within the State Dept. in Washington without exiting the US first. This way I wouldn't exit the country without receiving the entry visa first. Do you think this is a reasonable solution?
By the way, do you know what the latest word on the
H1-B quota for the 2005 fiscal year is? Is it going to be filled any time soon?

thanks a lot.
 
shoplifting might get you fired from your job

have a question someone i know got cauaght shoplifting a $5 dolalr pipe from home depot and got arrested on a 1st time offense and released on a summons. Judge said to come back with a laywer because its possible that he might lose his job since its a union. Any feedback on this?
 
curious_mist said:
Thanks a lot NYClex,
I will consult an attorney.

There is an alternative solution that I am considering:
I am thinking about was finding a job and
stopping my studies in which case I would need to transfer to the H1-B visa status. Once in H1-B, I think I could ask for an entry visa within the State Dept. in Washington without exiting the US first. This way I wouldn't exit the country without receiving the entry visa first. Do you think this is a reasonable solution?
By the way, do you know what the latest word on the
H1-B quota for the 2005 fiscal year is? Is it going to be filled any time soon?

thanks a lot.
Click to expand...

CuriousMist,

I am also in similar boat. If you would not mind, could you please tell what exactly the court disposition record says in columns like fine, suspended fine, probation, suspended probation, Plea, etc.. Or does it say only that it was dismissed and every other field is empty? which state did it happen? did it anyware say that you did a community service?

thanks a lot
 
for curious_mist

Were you able to get the H1B Visa, any consequences on visa/green card?
please let me know as I am in the same situation. thanks,
 
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