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I-485 with CIMT record

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  • I-485 with CIMT record

    I had a CIMT misdemeanor conviction back in 1995 in the US. It had a maximum possible of imprisonment of one year, though I was not sentenced to any (only fined). This makes me deportable but still admissible. Now I'm in the process of employment based I-485. I have consulted with several lawyers and understand the law, but the fact that my situation falls in a twilight zone makes me wonder what INS would do given the political climate these days.

    I'd appreciate if anyone with similar cases or have heard of similar situations could share some info on what the outcomes of the cases. I'm not from one of countries requiring special registration and I don't have any USC family member.

  • #2
    it depends on what exactly your case was (if it constititutes a conviction really), what kind of a conviction? (misdemeanor or felony; and all felonies are considered "aggravted felonies" for immigration purposes).

    But since it happened before the 1996 law changes, you may be eligable to apply for a chancelation of removal to start with a clean slate.

    It's too complex to discuss here, you can e-mail Haniballector@doctor.com (seriously ;-)

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    • #3
      Looks like you have been convicted for an CIMT misdemeanor -- which most of the time shouldn't make the alien deportable -- the general rule usually is that there are needed *2 CIMT misdemeanors* for an alien to be deportable.

      Yet, most of the states define a Class A misdemeanor as a crime for which a person could be sentenced to jail for up to a year (365 days) - on the other hannd, I remember it is at least Illinois that has the maximum punishment for Class A misdemeanors under 1 year in prison (that is to say up to 364 days.) So basically it varies.

      The immigration statutes state that an alien is deportable, on the other hand, even if s/he is convicted for only one CIMT for which the maximum penalty is 1 year in jail. Although usually this applies to felonies, the ones which in every state, as well as from the federal point-of-view, are punishable for more than 1-year in prison, INS has fitted certain state misdemeanors to this category to consider aliens deportable. Point is, yes, they can consider you deportable if they like to.

      Another line of defense you may want to use, in order to be possibly considered neither deportable nor inadmissible is to attack the definition of CIMT or "crime involving moral turpitude": get an attorney when you go to be interviewed for AOS, and let him argue with the immigration officer that your crime could possibly not be considered an CIMT from the immigration standpoint. This is possible because some state statutes under which aliens may be convicted are *divisible* -- that is to say may encompass crimes which - from the immigration point of view - make the alien deportable, as well as crimes that do not make the alien deportable. Hope that helps. Best of Luck!

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      • #4
        I think you may find interesting this link:

        http://www.dcfpd.org/2000seminar/KesLanMcWWil.pdf

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        • #5
          Thank you all for the reply. I'm not sure if I can argue whether it's CIMT since it falls under the fraud category. In hindsight, I probably should have filed for consular processing rather than AOS. CP would probably make the deportable an non-issue....

          Rather Complex, thanks a lot for the link, I'll read through it.

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          • #6
            Were the charges against you dropped or were you convicted? Please specify. I can then tell you a similar situation. I was involved in a couple of checks that were bounced and never paid.

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            • #7
              Pleaded no contest and got a deferred adjudication. I believe it's considered a conviction by INS.

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              • #8
                I am in a similar situation I-485 filed but the case against me was dismissed. When i discussed thsi with my attorney, she told me to mark "chrgaed" in the I-485 application and include all the details of the incident.

                So, i filed with all the necessary information. These law terms can be tricky but i hope that i dont have a problem with the AOS.

                What do you think?

                Thanks & Good Luck

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                • #9
                  In case you plead no guilty and no conviction is entered on your behalf, you have an arrest record, but not a conviction. The tricky thing with the INS is that they make their own evaluation of the situation, so they may well consider you to have been convicted although for the court you are not. No sure fire way to say that INS would not consider one to have been convicted. In case they will consider you to have been convicted, you may hope to not be considered inadmissible via the "petty offense exception" of the law, which states that in case an alien has been convicted for a crime of moral turpitude, s/he will not be deemed inadmissible if the maximum penalty for the crime was not more than 1 year in jail AND the alien was not ultimately sentenced in excess of 6 months in jail.

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                  • #10
                    it shoud read,

                    ....in case you plead guilty....

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                    • #11
                      just for the information of one of the previous posts: misdemeanors may very well be removable.

                      A few convictions (such as firearms and substance offenses) don't require a punishment of 180/365/or any at all, as long as it is a conviction (defered adjudication, civil service, probation etc.).

                      The convicted person may still be able to qualify for chancelation of removal to adjust. It's complex and needs thorough research and the consultation of a good attorney.

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                      • #12
                        Hanbal,
                        In this context, is Diversion considered a conviction? Thanks.

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                        • #13
                          Most of the time yes.

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                          • #14
                            Is "yes" Hanbal?

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                            • #15
                              Apparently, "yes" is not hanbal and it is no clear whether or not Diversion is considered a conviction for immigration purposes. It shouldn't be if the person pleaded not guilty and the charges are dismissed after Diversion.
                              Hanbal, please advise.

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