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Petit larceny, ACD and citizenship in NY Naturalization, Citizenship

Discussion in 'Green Card, Residency, Naturalization' started by sos123, Mar 25, 2008.

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  1. sos123

    sos123 Law Topic Starter New Member

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    hi i was arrested and charged for petit larceny (shoplifting of amount of $125) and i've consulted a few attorneys and most of them offered to get me an ACD which means that my case will be dismissed after 6 months if i dont get in any more trouble and after i complete a 1 day community service and stoplift class, after that my records will be sealed automatically and the shoplift class and community service will not be mentioned on the final disposition letter, which will only say that my case was dismissed and i will not have to enter a plea to get an ACD
    i've read that according to ny immigration laws an ACD is not considered a conviction
    but i'm still worried as I am a green card holder since 2001 and i was planning to apply for citizenship after my case is dismissed, an immigration attorney said that my case would not be a problem for citizenship
    but due to conflicting ideas in forums ive read that it may be a problem
    so i would like to know if it would be better if i pleaded guiLty to a disorderly conduct charge instead of getting the ACD

    WHAT'S BETTER AN ACD or DISORDERLY CONDUCT CONVICTION?

    Please help any advise would be apprecciated

    if i do get an ACD how will this affect my application for citizenship?

    also according to http://www.nysda.org/idp/docs/06_Imm...sChecklist.pdf

    GROUNDS OF DEPORTABILITY (apply to
    lawfully admitted noncitizens, such as a lawful
    permanent resident (LPR)—greencard holder)- ➢ One CIMT committed within 5 years of admission into
    the US and for which a sentence of 1 year or longer
    may be imposed (e.g., in New York, may be a Class A
    misdemeanor)

    this means that i may not be deportable since my charge of petit larceny falls under thae class B misdemeanor since the maximum sentence is of one year and since ive been a greencard holder since 2001 and my charges are in 2008 so it means that it already passed 5 years of admission into the US
    IS THIS CORRECT?

    also GROUNDS OF INADMISSIBILITY (apply
    to noncitizens seeking lawful admission,
    including LPRs who travel out of US)- ➢ Petty Offense Exception—for one CIMT
    if the client has no other CIMT + the
    offense is not punishable > 1 year (e.g.,
    in New York can’t be a felony) + does
    not involve a prison sentence > 6
    months

    this means im not inadmisible neither since i think i qualify for the petty offense exception

    INELIGIBILITY FOR
    US CITIZENSHIP- ➢ Crime Involving Moral
    Turpitude (unless single
    CIMT and the offense is
    not punishable > 1 year
    (e.g., in New York, not a
    felony) + does not involve
    a prison sentence > 6
    months)

    this means i may still be eligible for citizenship since my charge has a max sentence of 1 year NOT MORE THAN 1 year

    CONVICTION DEFINED- A deferred adjudication disposition without a guilty plea (e.g., NY
    ACD) is NOT a conviction

    so this means that maybe ACD is better than DISORDERLY CONDUCT CONVICTION?
     
  2. mafioso

    mafioso New Member

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    You would have to wait for five years of good moral character to be eligible for citizenship. Your offense falls under the petit offense exception so you would be okay. ACD is considered an admission of guilt by immigration law. Immigration law is very different from criminal law. Disorderly conduct or ACD is just a matter of "semantics"...........I would prefer Disorderly conduct from an immigration point of view. But either would not hurt you because of the CIMT one time exception.
     
  3. sos123

    sos123 Law Topic Starter New Member

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    Thank You Mafioso

    o I went to court today and my attorney got me a plea deal in which i'd have to attend a stoplift class and then go to court on april 16th with proof of my completion of the class
    I'm very frustrated as i forgot to check this forum before i went to court
    I do not know if it's too late to get a conviction of disorderly conduct on my second court appearance but anyways in case i'm not able to change it to a disorderly conduct i've read something on a website:
    "On the other hand, even under the current statute, a state deferral of adjudication procedure should not constitute a conviction unless there has been some finding, plea, or admission of guilt up front. Thus, a New York adjournment in contemplation of dismissal (ACD), or a drug treatment diversion program that does not require a guilty plea up front, should still not be considered a conviction for deportation purposes."
    According to that website ACD in NY is not considered a conviction for immigration purpose as long as i dont enter any guilty plea, hopefully it is true as it is my only hope now
    But since i admitted guilt to the store security, i do not know but the store security probabbly told the police about it ( the police never questioned me about the incident and i dont know if me asking them what's going to happen to me now is an admission of guilt or them asking me if im going to tell my parents about this and me saying no is an admission of guilt) and it is possible that it may be written down on the police report if the store security provided statements of what i said to him, so it means i still admitted to guilt, but will Immigration agency check the police report? is the police report and evidence included in the FBI records?
    Anyways I've just consulted 2 immigration attorneys and one said the same thing as you that ACD is still a conviction but he told me to apply for citizenship right after the dismissal of my case (after 6 months) as it will not be a problem for such a small case and I'd be able to provide proof that i went to rehabilitation (stoplift class) and paid a fine for restitutions to the store
    -I can't wait 5 more years to apply for citizenship since my green card is expiring on 2010 so i've only got 2 or less years and if i do wait 5 more years i'd have to apply for renewal of Green card in which i'll still have problems =( I'm very frustrated with this mistake, Lesson learned

    Also if I have no other option other than apply for citizenship before my green card expires, will the fact that i am a college student with a 3.6 GPA help, plus the proof of my rehabilitation plus proof of payments for fines to the store, and parents being permanent residents (they may apply for citizenship this year or next) and sister being citizen help? maybe my parents will apply for citizenship by the end of this year or next year so what if they become citizens before i apply for citizenship, will that help?
    or will i have no problem applying to renew my green card or is it the same as if i was applying for citizenship?

    THANKS AGAIN FOR THE TIME YOU TAKE TO READ AND ANSWER MY DOUBTS, I APRECCIATE IT VERY MUCH
     
    Last edited: Mar 28, 2008
  4. mafioso

    mafioso New Member

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    I would post your reponse later..........Network problems here.....
     
  5. sos123

    sos123 Law Topic Starter New Member

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    Thanks

    After i wait for 5 more years to apply for citizenship, will there still be a lot of probabbility that i'll still be denied my citizenship rather than approved even after 5 years from the incident?

    About deportation, I've read that a person is deportable if convicted of a crime of moral turpitude within 5 years of admission to the country and for which possible sentence can be that of 1 year or more.- I've been admitted to U.S since 2001 and since the incident just happened now in 2008, am i still deportable since it's not within 5 yrs of admission to the country?
    my charge qualifies for the petit offense exception but that only makes me not inadmissible so now I'm still wondering if I'm deportable since ACD is still considered a conviction

    Sorry for all the questions I am asking
     
    Last edited: Mar 29, 2008
  6. sos123

    sos123 Law Topic Starter New Member

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    also do you think there's anyway my attorney can ask if they could change the name of my charges to disorderly conduct on my next court date april 16th so that the final disposition letter can say that i was charged of that rather than larceny? or is it too late since i already went to court on 03/26 and the judge already mentioned that i was charged with petit larceny for shoplifting?
     
  7. Norushka

    Norushka New Member

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    Hi sos123,
    my case is very similar to yours except for I'm not even a green card holder, but on H1B (work visa)status. Your quotes appeared to be very helpful for me. Thanks a lot. I got disorderly conduct(with guilt plea) for the same thing you did. Since you've done so much reserch on the subject do you know by any chance if it is safe for me to go outside the US before my case is sealed? Also, do I still have a chance to get a green card( I've been in the country for about 3 years). My lawyer is still trying to get me ACD. It will be better for you in terms of your future employment and such. With DC record you won't be able to get a jobs in certain industries (such as finance) since the record of your theaft related arrest will stay on your ciminal record forever.

    Thanks in advance and good luck!
     
  8. sos123

    sos123 Law Topic Starter New Member

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    Hi, I've read in other threads where people have travelled and come back to U.S successfully with no problem, but there's always a possibility that you may be stopped at POE to submit proof of your case , I've read that they do this backgroung check like randomly but in most cases they do not stop somebody for a misdemeanor as they are more focused on felonies. In either case you should be carrying with you your final disposition letter, and proof of completion of any punishment that you were told to do by the judge, and you might want to carry a letter with you explaining the statute of the charge and a letter of the petit offense exception. If your charges of petit larceny have a maximum punishment of 1 year in the state in which the incident occurred and you were not sentenced for more than 6 months then you qualify for the Petit Offense Exception, so you'll not be inadmissible and if they stop you at POE and have all the necessary documents of your case then you should be fine, I think the most you should expect from the POE agents are few questions about your case since you're not inadmissible.
    I'd advise you to consult with an immigration attorney before traveling out the U.S tho since I do not know how accurate is my answer

    this should not be taken as any professional advise as I am not very familiar with law
     
  9. sos123

    sos123 Law Topic Starter New Member

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    sorry one more question

    I just received a coppy of a letter written by the DA to my lawyer explaining the charges against me and the reason why they want to press those charges agasint me
    I was charged with petit larceny 155.25
    and Criminal Posession of Stolen Property 5th degree 165.40
    Both charges will be dismissed after completion of ACD (Adjournment in Contemplation of Dismissal) after 6 months

    Again since I was charged for 2 different charges for the same crime, how will immigration agency see this? will they see it as ONE crime of moral turpitude or TWO crimes of moral turpitude? will I still qualify for the Petit Offense Exception? since I was not only charged of one thing but two things. This is pretty confusing and frustrating I thought I was only charged of Petit Larceny 155.25 which is what the Desk appearance ticket given to me by the police said, I do not understand exactly what the second charge is 165.40 since it's the same charge after all I only stole once and colaborated with the officers gave back everything when asked and did not give any problems or try to lie or get away with it so I don't see the difference in charge 155.25 and 165.40, please help, since an ACD ,may still be a conviction for immigration, i'm confused now whether I qualify for Petit Offense Exception, if ACD is still a conviction, does that mean I'm convicted of two crimes of moral turpitude? therefore will make me automatically deportable and inadmissible?

    Sighs I'm really scared
     
  10. mafioso

    mafioso New Member

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    Know it would be viewed as a conviction under immigration law. Your conviction meets the petit offense exception so it would not affect your traveling in and out after completing all the courts requirements. Yes, your plea can be changed if you have not agreed it by signing on it. You would just have to hold all your court disposition papers for re entry…….they might want to see it. After five years from the day of disposition of your case, you would be eligible for citizenship again without any problem……..if you don’t have another criminal charge. But you would just have to be honest about it to immigration officials. You would not have any problem renewing your GC since your offense meets the petit crime exception. So just renew your GC and wait…….. Your family ties or outstanding student statues can only help a person fight deportation but would not help in getting a free pass. You are still eligible for citizenship but you just have to wait longer……….
     
  11. mafioso

    mafioso New Member

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    You are not deportable since it meets the exception. Once an offense meets the exception, it is like nothing ever happened and so you are still eligible to benefit from all immigration benefits like the crime never happened. You are okay.........Just make sure it never happens. You are fine! Your bigger worry being a great student is to expunge this charge or seal it from future employers. Now at days......... criminal records are sold by close to 300 private companies online. It is hard to get them to seal or expunge even with a court order.
     
  12. mafioso

    mafioso New Member

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    If both charges are a result of a single incident, it could be considered as a single CIMT if both meet the exception. The Board of immigration and Supreme Court had ruled on such cases. I would guess the DA is trying to throw the book at you so you cut a deal fast. It is normal, so don't worry.......your lawyer should be able to stop them from tagging charges during announcement settings. Just make sure your lawyer has knowledge on criminal and immigration law. If he/she does not, make sure the plea and charges are reviewed be an immigration lawyer.
     
  13. sos123

    sos123 Law Topic Starter New Member

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    Thanks very much

    After reading your replies i really feel alot relieved
    i was very nervous yesterday after finding out that I not only had one charge against me but two so starting to have doubts about whether or not I would still qualify for POE
    thanks again and sorry for all the questions and long posts I posted in here
     
  14. mafioso

    mafioso New Member

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    Your lawyer can try...........some DAs don't like to change names of charges due to the guidelines.........Some counties do depending on the circumstance.
     
  15. mafioso

    mafioso New Member

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    Please post your questions in bullet or by numbering.........it make it easier to know if I have addressed all your concerns.
     
    nikesuper2009 likes this.
  16. njituser

    njituser New Member

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    Hey sos123, can you please let me know your email id man. I am in the same situation as yours. Please email me your id here: njituser@gmail.com
     
  17. njituser

    njituser New Member

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    Hey mafiso, can you please let me know your email id. I am in the same situation as sos123. I need some advice man. Please email me you id at: njituser@gmail.com
     

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