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I-485 with CIMT record

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  • #16
    I'm not very sure about "diversifications" since those are state rehabilative measures. I think they were brought in then the "three-strikes-and-you're-out" rule was acted in some states (which has been ruled unconstitutional in the meantime).

    But I think they are diversifying a criminal court procedure in promise of "good behaviour" etc. for a set amount of time and dropping formally the charges (but no plea of "guilty" or "nole" must be given in a court of law). Good luck!

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    • #17
      At the same time it is even more complicated with Diversions. If one is granted a Diversion and plead guilty but no punishment, penalty or restriction of liberty was ordered by the court, then it is not a conviction.
      One question: are administrative (Diversion) costs considered to be any kind of "restriction/penalty"?

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      • #18
        If you plead guilty/are found guilty most likely you have a conviction for immigration purposes, it doesn't matter that no conviction is entered on your behalf.

        Comment


        • #19
          I know about the distinction between giulty ple and conviction and all the rest. My point is that the definition of conviction in the INA has two prongs: one requires guilty plea, another one "some kind of punishment, penalty or restriction of liberty ordered by the court"

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          • #20
            To guest 3:
            Diversion is a voluntary and an out-of-court procedure, though recommended by the court. If the person agreed on a Diversion and completed the conditions then the formal charges could be dismiss by the judge based on completed Diversion. Since the Diversion is a voluntary procedure, all administrative Diversion costs are not considered as punishment/conviction nor "restriction of liberty ordered by the court". One is free to leave the Diversion and go back to court at any time. Therefore, Diversion cannot be considered as conviction for immigration purposes. Once again, the crucial point is to plead not guilty in the very beginning before agreeing on Diversion. Hope this helps.

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            • #21
              However, in some cases to enter/receive Diversion you actually HAVE to plead guilty. And, that is why it is complicated. Guilty plea is like a requirement to enter Diversion.

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              • #22
                "Diversion" explained it quite clearly. As long as you didn't plea "guilty" or "nole" in a court of law, but entered a diversion program to get the prosecution drop the charges, you have not a conviction (for immigration purposes)!

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                • #23
                  I do understand the point Diversion is making, however, my point is that you can have a guilty plea and still not have a conviction for immigration purposes.

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                  • #24
                    I see what Guest means. Yes, it is quite complicated in case of a guilty plea and charges dismissed due to completed diversion program. In such case some speculations from INS are possible. Anyway, Diversion program is for first time offenders only and it should be pretty straight forward with the INS if the defendant has been recommended to a Diversion program.

                    Comment


                    • #25
                      There are very few cases when you won't be considered by the INS to have been convicted when you plead guilty and enter a diversion program. Yet, INS can pretty much consider you to have been convicted even in these few cases. The only sure fire way to be safe is to go to trial and be acquitted, otherwise INS can split you apart, if it wants to of course.

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                      • #26
                        I do not agree that the only sure and especially safe way to go to trial. You never know what can happen in a trail. In Diversion you at least know that you do not have a conviction for the state purposes, and potentially can argue with INS about that, but if you go to trial you may as well be found guilty and then you are definitely convicted for all purposes.

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                        • #27
                          I have another question. Should a person be in trouble if he was not sentensed at all and the maximum possible penalty could be 6 months even if INS decides that there was a conviction for a single CIMT? This is a Diversion case.

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                          • #28
                            If the maximum possible imprisonment is 6 months and you're not sentenced to any, you are fine. the threshold is max possible of 1 year imprisonment.

                            If one becomes deportable as the very first message of this thread says, is it certain he needs I-601? or is it at INS discretion?

                            Comment


                            • #29
                              "Deferred sentence" = entry of a plea of 'guilty'/'no contest', but deferral of sentence.

                              In order to constitute a conviction, the new definition requires,

                              - a plea of 'guilty' or 'no contest', or a verdict of 'guilty', and

                              - that "the judge has ordered some form of punishment, penalty or restraint on the alien's liberty to be imposed."

                              If the court defers making any such order imposing punishment or restraint on liberty, until after an agreed deferral period of time has passed, and then dismisses all charges, without ever imposing punishment or restraint, no "conviction" would have occurred at any time under the new definition.

                              NOTE THAT any conditions of this arrangement that involve any "restraint on the alien's liberty" could not be imposed by court order; they may be included in a private agreement between prosecution and defense, however, as long as the court does not order them. When they have been satisfied, prosecution and defense could jointly move the court to dismiss all charges.

                              Comment


                              • #30
                                what that means this offence?

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