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DUI AND N-400

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  • #16
    I did not state that I want this person seen removed, I sayed that I find the law that provides for harsher action for certain violations in regard to dui somewhat just.

    In princaple, it will not benefit to remove that person. Such people are being removed into countries where they become frustrated alcoholics and more oportunities to finally kill children and innocent pedestrians. I was just slightly disguisted at the smiley with the sun-glasses, because I found it totally inappropiate for the subject matter.

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    • #17
      Okay, I guess this person still has to consult an immigration attorney, in order to make a decision as to what to do...n the worst case, I guess, he just have to wait 5 years from the date the second conviction was entered on his behalf before applying. (And, of course, not repeat the same thing again!)

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      • #18
        For immigration purposes, a period of confinement ordered by a judge for an offense, "regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part" will be counted as the term of the sentence.

        ~ If the client receives imposition of sentence suspended and no custody time as a condition of probation, that counts as zero sentence imposed.

        ~ If the person received 6 months custody time as a condition of probation and was released from custody in 4 months - because of conduct credits - that counts as 6 months sentence for immigration purposes.

        ~ If the client receives a 5-year sentence, execution of which is suspended, and the client is placed on probation with no custody time, that counts as a five-year sentence.

        The length of the sentence actually imposed determines whether crimes of violence constitute aggravated felonies. A sentence of "at least one year" means a sentence of 365 days or more, rather than requiring a "natural or lunar" year of 365 days plus some hours, or a 366-day year containing Leap Year Day.

        The time served after a parole violation is included within the "sentence imposed" for purposes of determining whether the offense is an aggravated felony. Thus, a defendant who initially received a sentence of less than one year, but then violates his probation or parole and is sentenced to an additional term of imprisonment that, when added to the original term, brings the total sentence imposed over one year, will be considered an aggravated felon.

        The definition of a "suspended sentence" is governed by federal law and includes all parts of a sentence of imprisonment that is ordered but not served, irrespective of the label attached under state law. Where Georgia courts had ordered service of a 5-year sentence, but allowed all but 8 months to be served on probation, the court of appeals held that the balance had been suspended under federal law, which still counted as a sentence of 1-year or more to convert the state conviction into an aggravated felony for purposes of triggering a 16-level enhancement under USSG § 2L1.2(b)(1)(A).

        Concurrent sentences are evaluated as the length of the longest sentence. Where the court imposes an indeterminate sentence of between 11 and 23 months, the sentence imposed for immigration purposes will be taken as 23 months. To avoid a sentence imposed of one year, the court must suspend imposition of sentence (and thus avoid imposing any state prison sentence), and order confinement as a condition of probation not to exceed 364 days.

        Techniques that can be used to avoid, e.g., a sentence imposed of one year, include: (a) waiving past credit for presentence time served, (b) waiving future credit for time served, and (c) obtaining consecutive sentences of less than one year on multiple convictions. These techniques enable a defendant to actually serve periods of time far longer than one year, and yet avoid being ordered to serve one year or more as a result of any single conviction.

        Finally, if a sentence is vacated, and a new sentence is imposed, it is the second sentence that counts for immigration purposes. The new definition of "conviction" and the decision of Matter of Roldan does not alter this result. Vacating a sentence nunc pro tunc and imposing a revised sentence of less than 364 days will prevent the conviction from being considered an aggravated felony.

        Vacating the judgment will also eliminate the effect of any sentence or imprisonment resulting from the conviction. Moreover, a petition for extraordinary writ may be brought simply for purposes of vacating the original sentencing alone, and obtaining a fresh sentencing hearing. A new sentence imposed by the judge will be the one considered by the immigration authorities, even if the defendant has already completed serving the original sentence.

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        • #19
          http://www.launet.com/LawOffices/Art...rsDeported.htm

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          • #20
            So is the guy eligible for citizenship or is he not?

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            • #21
              http://www.ilw.com/lawyers/immigdail...ristopher.shtm

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