Green card and Domestic violence misdemeanor

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Latest post 11-30-2006 11:38 PM by Thuong-Tri Nguyen. 11 replies.
  • 11-28-2006 12:05 PM

    • Dora22
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    • Joined on 11-28-2006
    • Posts 5

    Green card and Domestic violence misdemeanor

    I recently pled guilty to a class A misdemeanor for assault agst my spouse. I received deferred adjudication for one year. I went on vacation abroad and when I returned was questioned and given an order of deferred inspection. I have had my greencard for 5 years and been resident here in the US for 10 yrs. I am still married to a US citizen and we have a small child. What will happen ? The order referenced section 212(d)(5). I cant figure out what this section refers to………….

  • 11-28-2006 2:10 PM In reply to

    Note [#=#] re: Green card and Domestic violence misdemeanor

    Log on WWW.USCIS.gov and search for
    212INA or INA 212.You can figure out what this section is.

    Generally in diversion program, If you successfully comply its conditions , your case will be dimissed.I don't know yours.

    This incident postpones your eligibilty to apply for citizenship for 5 years.

    Never ever assult your spouse again.
  • 11-28-2006 2:37 PM In reply to

    • Dora22
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    • Joined on 11-28-2006
    • Posts 5

    re: Green card and Domestic violence misdemeanor

    Thanks - I tried looking at that section but nothing comes up............
    the incident was an accident - I scratched him whilst restraining him when he was having a diabetic fit, I called the police and got arrested, go figure.

    What is diversion?

  • 11-28-2006 4:37 PM In reply to

    Note [#=#] re: Green card and Domestic violence misdemeanor

    Section 212 of the Immigration and Nationality Act lists various grounds upon which a person can be found "inadmissible" to the United States.

    One of the grounds of inadmissibility is if the person is convicted of, or admits to having committed a "crime involving moral turpitude".
    Therefore, committing "class A Misdemeanor" can have serious immigration consequences.

    All is not lost though, there is an exception for very minor crimes. The exception is called the "petty offense exception." If the maximum possible penalty under the particular state law is not more than a year and the actual sentence is not more than six months, then the crime would be considered petty and the bar to inadmissibility may not apply.

    the criminal ground of inadmissibility does not apply where:
    a. The alien has committed only one crime of moral turpitude;
    b. The maximum penalty possible for the crime for which the alien was convicted did not exceed one year of imprisonment; and
    c. If the alien was convicted of the crime, the alien was not sentenced to imprisonment for a term greater than six months, regardless of the extent to which the sentence was ultimately satisfied.

    If , Those reqirement have not been met in your case, then you would be inadmissible and would require a waiver of inadmissibility under INA §212(d)(3).

    Please note that , I am not a lawyer. You should consult with an expert immigration lawyer or have chat with Andrew or Jill on this web page next monday.

    USCIS is upgrating its site, you can find INA 212 next few weeks.
    Best of luck.







  • 11-28-2006 6:00 PM In reply to

    • Dora22
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    • Joined on 11-28-2006
    • Posts 5

    re: Green card and Domestic violence misdemeanor

    Thanks for the info - the feeling I got when the INS questioned me when I entered the country was that it was just a formality and the form they gave me to take to the hearing said I would get my greencard back when I attended the hearing with the copy of the court sentence.
    I think I will be okay because:
    I have only committed one crime
    my sentence was 12 mths community supervision not imprisonment
    the maximum sentence possible is one year or less imprisonment.

    Do you think I am reading this correctly.
    I will be consulting a lawyer just wanted to get another opinion first

    I appreciate your advice
  • 11-28-2006 7:02 PM In reply to

    re: Green card and Domestic violence misdemeanor

    You should take this hearing very seriously because your immigration status may be in jeopardy.

    The reference to section 212(d)(5) is likely to this: (5) (A) The Attorney General may, except as provided in subparagraph (B) or in section 214(f) , in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from wh ich he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.


    The section under which your status is being challenged likely is Sec. 237 (a)(2)(E) Crimes of Domestic violence. A copy of that section is below. The INA is accessible by clicking on the link for "Laws & Regulations" at www.uscis.gov .

    INA: ACT 237 - GENERAL CLASSES OF DEPORTABLE ALIENS (8 U.S.C. 1227)
    Sec. 237 (a)(2)
    (E) 6/ Crimes of Domestic violence, stalking, or violation of protection order, crimes against children and.-


    (i) Domestic violence, stalking, and child abuse.-Any alien who at any time after entry is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable. For purposes of this clause, the term "crime of domestic violence" means any crime of violence (as defined in section 16 of title 18, United States Code) against a person committed by a current or former spouse of the person, by an individual with whom the person sha res a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual's acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.

    *****

    Were you represented by an attorney at the court hearing for the assault charge? Did your attorney advised you of possible immigration consequences? If not, discuss with your new attorney whether you have any option including vacating your plea.
  • 11-28-2006 7:13 PM In reply to

    More [=+=] re: Green card and Domestic violence misdemeanor

    As long as it is the first offence, a misdemeanor and the max possible sentence is not 1 year or more (note, it is the max possible sentence that you have to worry about, not what the actual sentence was) there is nothing to worry.
    You need to have the certified disposition for the case and the Max sentence for this offense with you at hearing.

    I think your case was covered under petty crime exception of CIMT .Ask Petty Offense Exception" set forth in INA 212(a)(2), 8 USC 1182(a)(2) for your case.

    It seems likely that the charge would fall under the "Petty Offense Exception" set forth in INA 212(a)(2), 8 USC 1182(a)(2):
    Quote:
    Quoting 8 USC 1182(a)(2) - Criminal and related grounds
    ________________________________________
    (A) Conviction of certain crimes

    (i) In general

    Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of —

    (I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or

    (II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21),

    is inadmissible.

    (ii) Exception Clause

    (i)(I) shall not apply to an alien who committed only one crime if —

    (I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or

    (II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

    For more information search "petty offense exception." on yahoo or Google.

    If you want to hire a lawyer for your case, choose a lawyer who has expeiance enough.


    Best of Luck!
  • 11-28-2006 7:21 PM In reply to

    Warning [=*#] re: Green card and Domestic violence misdemeanor

    Please pay more attention to Thuong-Tri Nguyen message. He is a lawyer, and his information is much more reliable than mine.
    Best Luck!
  • 11-29-2006 12:36 PM In reply to

    • Dora22
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    • Joined on 11-28-2006
    • Posts 5

    re: Green card and Domestic violence misdemeanor

    Hi
    Yes I was represented by an attorney who advised me that this was just a misdemeanor and the INS is not going after pople committing felonies let alone those only committing misdemeanors. I will be consulting a new attorney now I think this is pretty horrifying. Should I choose an immigration attorney with criminal law experience ? how do I go about getting the right representation given this situation?

    thanks for your advice.
  • 11-29-2006 3:19 PM In reply to

    re: Green card and Domestic violence misdemeanor

    It's true that the government does not have the resources (or the will) to catch and process all immigration violators. However, when you (or any other immigrant) present yourself to the authorities at the border or by filing an immigration application, the government will act on the information you give.

    You should act quickly, not only in terms of the upcoming immigration hearing, but also in terms of the assault charge. Depending on the laws of your state and the court rules and when your assault case took place, there may still be enough time to appeal the assault case. Ineffective assistance of counsel may be a basis for appeal. An attorney advising an immigrant client to plead guilty to domestic violence likely can be found to have provided ineffective assistance. You will need to discuss with your new attorney whether the prior attorney did anything wrong.

    As written, the INA section on domestic violence does not distinguish between misdemeanor and felony levels. It's the same with some other convictions such as illicit drug use, selling, or buying. The INA also does not have time-limiting clauses for some violations. Thus, there have been many immigrants who were deported/removed for relatively minor convictions that happened 20-30 years ago (long before the current version of the INA was enacted).
  • 11-30-2006 9:30 PM In reply to

    • Dora22
    • Not Ranked
    • Joined on 11-28-2006
    • Posts 5

    re: Green card and Domestic violence misdemeanor

    thanks so much for your advice. I am confused as to why I have been referred under section 212(d)(5) and why the officers who detained me at the airport seemed to act like it was just a matter of filing the paperwork and did not warn me about any possibility of deportation. Is this normal practice? Also I have a two year old child who is a US citizen - will this be taken into consideration or not?

  • 11-30-2006 11:38 PM In reply to

    re: Green card and Domestic violence misdemeanor

    As a permanent resident, you have the right to due process. The government cannot just confiscate your green card, terminate your status, and leave you at the border. The upcoming hearing is your opportunity to be heard.

    As for the inspectors, they likely were just doing their job: to inspect travelers and issue the appropriate documents and notices. They may not know what will happen to you.

    You were given notice. Whether that notice was legally sufficient is part of what you need to discuss with your attorney. Besides the substantive issue of whether you violated any immigration law, your attorney can address whether the government comply with due process requirements.

    Having a US citizen child is not likely by itself helpful to you. Many immigrants, legal or otherwise, have children, spouses, and siblings who are US citizens.

    Your best course of action is to go see an attorney who after reviewing your case can advise you what to do and what can happen.
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