HARD CASE NEED OPINIONS

[BellaRose 7]

Well I'm still in the running to becoming America's next top hardest case. We've been through alot so far but we are not finished yet.

We just finished our second interveiw after the reaffirmation process. It went ok I guess eventhough I was moreso arguing with the CO than answering questions . BUT he allowed my husband sign the i-130 papers (we weren't allowed to sign last time) so this is a victory to us within itself. All this means to me is that our case isn't being sent back to the U.S .

However, I think we are in AP and this is the situation where I want some opinions. My husband has unresolved felony charges from New York State which would probaly make him ineligible period or with some leniency we would at least need a waiver. But we threw the CO a curveball. He and another man were involved in the same incident and they were both charged with 2nd and 3rd degree assault and assault with a deadly weapon in the 4th degree (the 2nd degree being the only felony). Also the witness statements clearly state that this other man started the fight and he was the main defendant. My husband was out of the country when the other man was tried a year after the incident and he was let off on a misdomeanor class B and a fine (this charge would not even need a waiver). My husband was issued a warrant but his bail was not revoked.

The CO said that he has to carefully check the law because he hasn't seen a case like this and will contact us when we can submit a waiver if we are eligible .

The question is, would my husband be held responsible for the full felony charge if he was not convicted and the other person involved was already tried in court and recieved a much lesser charge.

?????? I just want to be able to submit the waiver, my worst fear is that he would be ineligable to immigrate here .

[Luckywife2007 6]

I don't have an answer to your question BELLAROSE but I would like to ask why did your Husband sign the I-130? Don't mean to be Ignorant or anything, just curious.

Also, I was reading that the amount of time since the crime was committed: over five years prior to immigration helps to

some extent.... hope this helps and would it apply to your case?

[belinda63 2,981]

I'm kind of confused. Did your husband have a trial or do a plea agreement or where the charges dropped? You say the charges are unresolved and a warrant was issued for him so when and how was all of this resolved?

[BellaRose 7]

The crime was committed in August 2008. In october 2008 he left the country. He was never tried in court and on upon arrival he must be tried because there is a warrant for these charges. His "partner in crime" was tried in court already and only received a misdemeanor.

Meaning the person who commited the crime with him no longer has a felony. My husband hasn't pleaded anything because the trail happened in August 2009 when he was not in the country. Usually they would have been tried together on the same day and given similiar charges, but my husband wasn't allowed in the country. So technically when he is tried the judge will base his convictions off of the "partner in crime" conviction...the misdemeanor.

Iknow I'm confused and the CO is confused. So I'm sure everyone here should be confused. I just hope we can submit the waiver.

[BellaRose 7]

O and remember you leave some portion blank on the application so your spouse can sign in front of the CO. They didn't let us do that in 2009. They just handed us the 221g and sent our application back to uscis. This was still the original application I sent in 2008 and the CO finally let my husband sign...meaning our interveiw pprocess was complete and now the CO is working on whether or not we can submit the waiver for A the overstay and possibly B the felony charges OR worse case he is ineligable based on these convictions.

[LIFE'SJOURNEY 970]

O and remember you leave some portion blank on the application so your spouse can sign in front of the CO. They didn't let us do that in 2009. They just handed us the 221g and sent our application back to uscis. This was still the original application I sent in 2008 and the CO finally let my husband sign...meaning our interveiw pprocess was complete and now the CO is working on whether or not we can submit the waiver for A the overstay and possibly B the felony charges OR worse case he is ineligable based on these convictions.

Your husband will not be granted a visa until the court case has been resolved. He can go to the US embassy and turn himself in, they will bring him back to resolve his pending warrant. Nothing pertaining to immigration will get resolved until his legal battle with the US court system has been resolved. You'll needs to obtain a lawyer to clear this up, you can not do this as a layman. If you'll already have a lawyer then I would suggest that you'll follow his/her advise.

[belinda63 2,981]

My thoughts exactly. He has an outstanding warrant in the US and has "jumped bail". I am really surprised they did not make him surrender his passport as part of his bail. He needs to clear up these charges first as no waiver is available for "pending charges" as no one knows what/if any charges he may be found guilty of.

[BellaRose 7]

That is the issue they did not revoke the bail because he appeared twice in court prior to him leaving. I have already TRIED to ask the bailbondsman if he could come back in custody to resolve this matter and they refused to revoke the bail bond. He only has a warrant. If he turns himself in they will not bring him here on basis of "jumping bail" because he didn't.

I don't have lawyer and definately can't afford one.

[BellaRose 7]

I guess I will just wait until we find out what the CO says. You can optain a waiver if all the charges "highest possible sentence" is less than five years in prison. In this case it is more I was just wondering if there were exceptions being that the case was tried for the other defendant and he didnt get any jail time.

Thanks anyway guys.

[belinda63 2,981]

The closest thing I could find that relates to your case would be here.

(E) Certain aliens involved in serious criminal activity who have asserted immunity from prosecution.-Any alien-

(i) who has committed in the United States at any time a serious criminal offense (as defined in section 101(h)),

(ii) for whom immunity from criminal jurisdiction was exercised with respect to that offense,

(iii) who as a consequence of the offense and exercise of immunity has departed from the United States, and

(iv) who has not subsequently submitted fully to the jurisdiction of the court in the United States having jurisdiction with respect to that offense, is inadmissible.

Of course he has not asserted immunity from prosecution but I think the general jist of it is correct. He is inadmissible under an immigrant visa until the pending charges have been resolved.

Edited February 17, 2011 by belinda63

[BellaRose 7]

He is inadmissible under an immigrant visa until the pending charges have been resolved.

I guess they can get us on this "who has not subsequently submitted fully to the jurisdiction of the court in the United States having jurisdiction with respect to that offense, is inadmissible."

But these charges can not be resolved until he is admitted into the U.S. and he did go to a few of the court dates, that is why they didn't revoke bail.

This is probably why we are in AP, this needs a supervisor's opinion. Maybe we can get a waiver.

[Luckywife2007 6]

He is inadmissible under an immigrant visa until the pending charges have been resolved.

I guess they can get us on this "who has not subsequently submitted fully to the jurisdiction of the court in the United States having jurisdiction with respect to that offense, is inadmissible."

But these charges can not be resolved until he is admitted into the U.S. and he did go to a few of the court dates, that is why they didn't revoke bail.

This is probably why we are in AP, this needs a supervisor's opinion. Maybe we can get a waiver.

BellaRose,

I don't have anything that I can add to this besides just telling you that I hope all goes well and they figure something out sooner than later for your sake! You have been a trooper thus far and just remember this, your case wouldn't have came this far had you either given in and let them win OR if you would've gave up on your Sweetheart!

P.S.

Your Positive thinking is a plus girl!

Edited February 18, 2011 by Luckywife2007

[BellaRose 7]

Thanks for all the support. The fact of NOT knowing is just making me a nervous wreck So far our case has proven Murphy's Law every step of the way, but I'm definately a fighter...they haven't seen the end of me yet

Let's look on the bright side....at least I didn't have to do any physical damage to the CO (I think that's way they put them behind windows)