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  • expunged conviction?

    Hey guys, I have been just looking around and trying to find me a help in my situation. I came from Europe 3 years ago, lately just got married to a USC and trying to file my AOS. Unfortunatelly 5 years ago back in Europe I was driving under influence of alcohol and damaged my company's(owned 30%) car. Because the damage was slightly over 1,000 dollars I plead guilty and was convicted of a crime with a possible penalty of a year in prison. Eventhough in my case I was only fined by paying 500 dollars in my understanding of the immigr. law that still makes me inadmissible and deportable. Is there any lawyer that could give me a hope and an advice how to sneak between the bricks!??
    Should I just put down "never convicted" in my AOS and hope for not checking the background in overseas?
    Or should I wait another 6 months before my crime will be erased from my criminal record overseas and than file for my AOS? Am I gonna be considered to have my conviction expunged and admissible any time later?
    Please any hope?

  • #2
    Hey guys, I have been just looking around and trying to find me a help in my situation. I came from Europe 3 years ago, lately just got married to a USC and trying to file my AOS. Unfortunatelly 5 years ago back in Europe I was driving under influence of alcohol and damaged my company's(owned 30%) car. Because the damage was slightly over 1,000 dollars I plead guilty and was convicted of a crime with a possible penalty of a year in prison. Eventhough in my case I was only fined by paying 500 dollars in my understanding of the immigr. law that still makes me inadmissible and deportable. Is there any lawyer that could give me a hope and an advice how to sneak between the bricks!??
    Should I just put down "never convicted" in my AOS and hope for not checking the background in overseas?
    Or should I wait another 6 months before my crime will be erased from my criminal record overseas and than file for my AOS? Am I gonna be considered to have my conviction expunged and admissible any time later?
    Please any hope?

    Comment


    • #3
      A judicial order of deportation can be requested only if the offense for which the alien will be sentenced renders such alien deportable on one or more of the following grounds:


      Crime of Moral Turpitude, 8 U.S.C. § 1251(a)(2)(A)(i)

      The alien must be convicted of a crime involving moral turpitude committed within five years after the date of entry, and sentenced to confinement or confined therefor for one year or longer. Although the conviction must occur within five years of entry, any entry into the United States may be used to support the charge of deportability.

      The term "involving moral turpitude" is difficult to define with precision. However, a challenge to this designation as being unconstitutionally vague has been rejected.
      Chu v. Cornell, 247 F.2d 929 (9th Cir. 1957), cert. denied 355 U.S. 892 (1958). Administrative case law has characterized moral turpitude as "a nebulous concept, which refers generally to conduct that shocks the public conscience." Obviously, offenses such as murder, voluntary manslaughter, kidnaping, robbery, and aggravated assaults involve moral turpitude. However, assaults not involving dangerous weapons or evil intent have been held not to involve moral turpitude. Conspiracy, attempt, or being an accessory involves moral turpitude if the underlying offense involves moral turpitude. There is administrative and judicial case law holding that any crime having as an element the intent to defraud is a crime involving moral turpitude. See Gordon and Mailman, Immigration Law and Procedure, § 75.05[1][d].


      A sentence of confinement of one year or more is sufficient even if the sentence is entirely suspended. However, a single crime of moral turpitude in which a sentence of less than one year is imposed would not be a ground for deportation under section 1252(a)(2)(A)(i), but the same offense might provide a basis for deportability as an aggravated felony.


      Multiple Criminal Convictions, 8 U.S.C. § 1251(a)(2)(A)(ii)

      A conviction for two or more crimes involving moral turpitude at any time after entry would render an alien deportable, so long as the offenses did not arise out of a single scheme, and regardless of whether the alien was confined therefor. Conceivably, two misdemeanor convictions, not arising out of a single scheme, for crimes involving moral turpitude would make an alien deportable under this provision.


      Aggravated Felony 8 U.S.C. § 1251(a)(2)(A)(iii)

      An alien convicted of an "aggravated felony," as defined in 8 U.S.C. § 1101(a)(43), is deportable. The Immigration and Nationality Technical Corrections Act of 1994 expanded the number of aggravated felony offenses. (Some, but not all aggravated felonies, would also be crimes involving moral turpitude.) Aggravated felonies now include:


      murder;

      illicit trafficking in a controlled substance;

      illicit trafficking in firearms, destructive devices, or explosive materials;

      money laundering or engaging in a monetary transaction in property derived from specific unlawful activity if the amount of the funds exceeded $100,000;

      offenses described in various sections of Title 18 relating to explosive materials or firearms;

      crimes of violence for which the term of imprisonment imposed is at least 5 years;

      crimes of theft or burglary for which the term of imprisonment imposed is at least 5 years;

      offenses described in various sections of Title 18 relating to the demand or receipt of ransom;

      offenses described in 18 U.S.C. § 2251, 2251A, or 2252 relating to child pornography;

      an offense described in 18 U.S.C. § 1962 relating to investing income derived from racketeer-influenced organizations;

      offenses relating to owning, controlling, managing, or supervising a prostitution business or an offense described in various sections of Title 18 relating to slavery, peonage, and involuntary servitude;

      offenses relating to gathering or transmitting national defense information, disclosing of classified information, treason, or intentionally disclosing the identity of undercover intelligence agents;

      offenses involving fraud in which the loss to the victim exceeds $200,000, or tax evasion in which the revenue loss to the government exceeds $200,000;

      an offense relating to alien smuggling for commercial advantage;

      an offense under 18 U.S.C. § 1546(a) which constitutes trafficking in fraudulent documents for which the term of imprisonment imposed is at least 5 years;

      an offense relating to failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 15 years or more; and

      any attempt or conspiracy to commit one of the above offenses.


      NOTE: The various other grounds for deportation set forth in 8 U.S.C. § 1251 do not provide a basis for a request for a judicial order of deportation.

      A judicial order of deportation can be requested only if the offense for which the alien will be sentenced renders such alien deportable on one or more of the following grounds:


      Crime of Moral Turpitude, 8 U.S.C. § 1251(a)(2)(A)(i)

      The alien must be convicted of a crime involving moral turpitude committed within five years after the date of entry, and sentenced to confinement or confined therefor for one year or longer. Although the conviction must occur within five years of entry, any entry into the United States may be used to support the charge of deportability.

      Comment


      • #4
        This crime committed in another country does not seem to be a problem. Even if it'll be expunged you'll need to disclose it, so I think there's little gain in that. But as I said, I don't think it'll come up during the checks. Ask an attorney though.

        Comment


        • #5
          Thank you guys. I get a little closer to my problem, but I am still not sure if they would look at my case as to an aggravated felony, crime of moral turpitude or just traffic violation? I have been in the USA maybe 5 or 6 times before that thing in Europe happened(never intended to immigrate) so I am not sure if any entry would be aplicable neither?
          My affair happened 2 years before my last entry and becomes a problem now after my wedding with a USC and intends to stay in this country. The expulgement is probably not gonna be a big help.

          Comment


          • #6
            It is a big deal weather it happened here or there.Ask your lawyer in your home country if DUI is a felony or misdemeanor ( in Europe).You can file your AOS etc. but be honest about your conviction.Make sure you have your court resolution ready, The INS will appreciate your honesty and this will be a positive factor in adjucating your case.You said you have 4 months to go, you may apply now because INS won't be adjucating your case right away. It might take 8 months or more. By the time you're facing the IO , you have already tap the 5 years.If I were you hire a lawyer so he can guide you on what to do.After you AOS interview the IO will let you know if you are inadmissable or not. If you are inadmissable he will give you the form I-601 which is the waiver for grounds of excludability.He might tell you to submit it when the form is ready so your AOS will be adjucated. This waiver is based on extreme, unusual hardship of your USC wife if your admission to the US is not granted.

            Comment


            • #7
              Thank you brownfox, you are really helpful.
              I talked to my lawyer in Europe. Since I damaged someone elses property(even it was "only" a car owned by a company where I had 30% share)and the damage was more than aprox. $1,000 it was considered a felony. I missed the definiton of disdemenaor for a couple of hundreds dollars and ended up with a felony where the maximum exposed sentence is up to 1 year in prison. I was ordered to do 17 days in jail or pay about $500 fine. I paid my fine and my crime should be expulged very soon. The legal time for doing that was 3 years after me paying the fine. The court have onether year to do that. Whenever they decide to expulge it, the final order of the court was in 10/99 so 5 years period will come up in 10/04.
              Should I still apply for AOS right away or wait a few more months since the AOS time before an interview in Albuquerque, NM is about a year? I still would have probably around 6 months to go..?!
              Cannot my felony be considered as an aggravated felony or a crime of moral turpitude (regard. to 1 year of time exposed)? I am afraid if put my case in the paperwork it might send to a category where there is no waiver at all? With my wife and her 3 kids I believe I could make it with a waiver. I just don't want to end up with no chance and no waiver available?
              Thanks!

              Comment


              • #8
                Is there a lawyer that would help me to analyze my situation and tell me what to put in my paperwork? I am afraid I might make it worse than it is.. Thank you.

                Comment


                • #9
                  Do you have felonies and misdemeanors there in Europe - I thought in the U.S. we divide crimes into felonies and misdemeanors...

                  Comment


                  • #10
                    Yeah we have misdemenaors and felonies. In my case they made an appraisel to find out the damage. It went very slightly over the limit that sent me in the felony category. They admitted the is is an old law and let me pay just a fine. But the maximum expused sentence for that crime(felony) is one year and that's what scares me.. I wonder if they look at it under the INA as to an aggravated felony or a crime of moral turpitude and make me inadmissible and deportable!?

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