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Old Felony Conviction Affecting My Husband's Resident Alien Status--Help!!

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  • Old Felony Conviction Affecting My Husband's Resident Alien Status--Help!!

    My husband returned from visiting relatives in SE Asia. He holds an INS Resident Alien Green Card which he has had since 1993. We have been married since 1989 and have 2 kids. Prior to our marriage, he was convicted of involuntary manslaughter. At that time, he held a Refugee INS card. After he was released from prison where he served 2 years, he applied and received his green card. He has never had trouble traveling abroad before. This time he was arrested and is being detained in California because of this old conviction. Is this legal? Can anybody offer me some advice. We are desperate since he works and is the main breadwinner in our family. Thanks in advance.

  • #2
    My husband returned from visiting relatives in SE Asia. He holds an INS Resident Alien Green Card which he has had since 1993. We have been married since 1989 and have 2 kids. Prior to our marriage, he was convicted of involuntary manslaughter. At that time, he held a Refugee INS card. After he was released from prison where he served 2 years, he applied and received his green card. He has never had trouble traveling abroad before. This time he was arrested and is being detained in California because of this old conviction. Is this legal? Can anybody offer me some advice. We are desperate since he works and is the main breadwinner in our family. Thanks in advance.

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    • #3
      wait a minute, I am confused. If he has already served his time, how on earth can he be punished again for the same crime... isn't there a legal statute about double jeopardy? Is there any part of his crime that was unknown or not revealed? or any part of the punishment that was not administered?

      in order for people to help you (if possible) we need as much information as possible. Please clarify.

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      • #4
        I am guessing that your husband is in the database with criminal history. If he was unfortunately listed there, he will be under investigation, the database may not contain all the information they needed to release him. This is part of the Anti-Terrorism Campaign. They are somehow particular with the gender, country of origin (birth) and the crime history.

        Consult a lawyer right away.

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        • #5
          He is being affected by the law changes of 1996 (IRIRRA - illegal immigration reform act). As a non-citizen (no matter what status he was when he left, he is considered an "arriving alien" and he is on the same basis as someone who has never set foot on America's shores before. Previously, a "returning resident alien", for instance, had far more rights in being able to return to his/her residency in the U.S.). That makes his right very slim to gain any of the rights people and residents in the U.S. have (as an arriving alien he is technically not considered to be in the U.S.).

          His conviction of 2 yrs. for involuntary manslaughter (an aggravated felony) is very serious and he is clearly inadmissable as well as deportable. The only remedy to your dilema would be to obtain an executive pardon or gain citizenship (which I doubt he'd qualify with such a serious felony conviction). Talk to a good immigration attorney, though I believe that his chances are quite slim.

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          • #6
            Hanbal --your particular information was very helpful, although distressing.
            Thanks

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            • #7
              Hi. I know absolutely nothing about this, but that is the most ridiculous thing I have ever heard.

              Mary please let us know what a lawyer says. It is very distressing to think that the USA might try to punish you twice for the same crime. (although I guess I shouldn't be overly surprised when it comes to immigration law.)

              my prayers are with you (since it is the only thing I can offer).

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              • #8
                I agree this is remarkably stupid. Hanbal, isn't it that for crimes committed before 1996 the alien won't be deemed inadmissible if s/he has already served time and is discharged for that particular crime? I mean it's crazy to lock this person up in America (or even worse deport him, locking him out of America and his family) for a crime that has he has paid his dues long time ago. These laws should definitely change.

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                • #9
                  It appears from what you posted that the conviction occurred prior to your husband receiving his green card. Thus, my question to you is when he adjusted his status was his conviction waived at that time. As for the double jeopardy claim that some have raised, this is not applicable in immigration proceedings. Immigration proceedings are deemed civil in nature. Double jeopardy arises and prohibits multiple criminal punishments. Yes, it is legal for INS to have detained your husband due to the changes in the law in 1996. Your husband's conviction is an aggravated felony. You need to consult an attorney.
                  tdixon@lawyer.co

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                  • #10
                    The conviction in 1989 occurred when my husband had refugee status. After my husband served his time, he applied for and received his Resident Alien Card. This was in 1993. He has traveled out of the country many times since, to visit his family in SE Asia. He was never stopped, detained or even questioned. We have 2 children together, one is 14, and the other is 18. Ironically, at the time of his 1989 conviction, the judge in the case even made a recommendation that this conviction should not affect his immigration status. Maybe this additional info will help.

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                    • #11
                      unfortunatly, the 1996 law changes (which came into full effect in 1997) are retroactive (meaning there is no statutue of limitation to them and they engulf conviction in regard to aggravated felonies (and drug convictions) up to 1982 (as far as I remember).

                      Double jeopardy doesn't apply here, because removabality or inadmissability in immigration is not considered criminal punishment (but civil consequence). Since the affected spouse is an "arriving alien" at this time, an easier to establish "inadmissiablility" will apply (a removal is technically not possible for someone who is "legally" not admitted"). That's actually an interresting thing and could be (in my humble opinion) cleverly challenged with a good attorney... But with some of the other laws recently enacted (that enables the U.S. to detain foreign nationals in Guantanama Bay, Kuba), this can only get more complicated!

                      Good luck, Mary, your only indicator so far is that he's being detained and not returned already (they can't detain him indefinitly and sooner or later have to release him, at which time he'll be "admitted" and a "removal" would be then more difficult...)

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                      • #12
                        Thanks to all who posted with helpful advice. I hope I get to see my husband again. I need your prayers as well.

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                        • #13
                          beacause the crime happened before April of 1997 he does qualify for a waiver to dismiss removal hearing.
                          You are looking at paying a immigration attorney about 6000k for this.
                          Unfortuantely you will pay the attorney this fee and will not be garunteed that the waiver will actually be taken by the immigration judge.
                          I was in a similar situation last year in the US after having lived there 20 years after moving from canada..
                          All I can say is this,......Its pretty cold up here today....

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