1-485 expert needed PLEASE!

[LongJourney4Love 0]

Regarding the I-485 Question 1b: "Have you ever been arrested...for violating any laws...excluding traffic violations?"

My husband was in his first traffic accident ever. He left the scene and ran away - this was his first traffic accident in his life and he was scared out of his mind. He came to the States legally, however his Visa had expired. His "friend" in the car with him stayed at the scene, declined medical treatment and was driven home. Right after the accident, my husband hired an attorney to take care of things(we kept the receipt). He had said it was a traffic accident case and he would take care of it easily. We never heard back from him after repeated attempts at communication, so we let it go - no correspondence rec'd in the mail either. 9 months later, when we thought all was done, my husband received a summons to appear in court. The so called "friend" was suing him for injury. We contacted the car ins atty and told him the "friend" wasn't injured. They proceeded to have a Private Detective track him so we have plenty of evidence of him playing soccer, driving, etc. Then 1 month after the summons, we came home from dinner and were told by a neighbor that the police were looking for my husband b/c there was a warrant for leaving the scene with injury! Holy cow! So the first attorney didn't do his job as we thought. Now everything had escalated. After a week of interviewing criminal attorneys, and finding out our options (not many) we knew my husband would have to turn himself in. Apparently leaving the scene with injury, even though it is fraudulant) is considered a felony. So we gathered our info for the I-130, filed it and the next day with tears down my face, I drove my husband down to the local jail. After many court appearances, and sentencing he is set to get out very soon.

We rec'd the NOA2, Approval Notice. The next step is to wait on NVC to contact us, but my husband wants to complete the I-485 adjustment of status. He came here legally, but his visa expired. I do want to add that he pays his taxes every year and we have copies of all past docs from IRS. We are members of a church and just normal, nice people. QUESTION 1b on the form...would this Accident make the answer to this question YES or NO, since it was just a traffic accident? I don't want to get it wrong, as I feel any misstep could send him away from our family. Any guidance please?

[paojack 41]

I am no expert but as u said: what he did is a felony, was not a simply speeding ticket or something like that.

When I lived in the US I was told that 'hit and run' is the WORST thing u can do.

I would probably answer yes and give a full explanation of what happened. If u say no, they might find out for themselves and then u would get in trouble for not telling the truth. Good luck!!

[Ryan H 3,790]

QUESTION 1b on the form...would this Accident make the answer to this question YES or NO, since it was just a traffic accident? I don't want to get it wrong, as I feel any misstep could send him away from our family. Any guidance please?

I'm no expert, however, since he was charged with a felony, the answer to that question would probably be yes.

Edited June 26, 2011 by Ryan H

[LongJourney4Love 0]

@paojack - Thanks! Yeah the attorneys that I interviewed and the one we eventually hired said the first attorney should be reported to the Bar Assoc. He clearly did not communicate, nor perform as promised. However that is just more paperwork and stress right now. I know that the local Immigration office knows about this. The silver lining is that we did get the approval so that is a great thing. I just don't want to mark YES on the I485 and make our chances worse of keeping my family together, when legally he could mark NO and explain the circumstances. This is all so confusing for me...

[LongJourney4Love 0]

I'm no expert, however, since he was charged with a felony, the answer to that question would probably be yes.

ok, thank you.

[belinda63 2,981]

This is more than just a "traffic accident" especially if I am understanding that he has done time for it. Look at all the charges he was convicted/plead guilty to, I will bet my right arm it is more than a traffic issue.

Now whether this will disqualify him from receiving a green card I don't know but I do know that if you mark no on the form this will be lying. You don't do time for a traffic violation that is why it is a violation and not a crime. Best bet is to be honest and go from there.

[Darnell 8,478]

*** moving to AOS/work/student/tourist forum ***

[Darnell 8,478]

ok - try to distinguish between:

1. what he was arrested for vs

2. what he was charged with vs

3. any plea bargain during the hearing vs

4. what he was sentenced for

then try to ascertain 'which thing is current' for 'the title', then figure out if 'the title' is a felony offense, or not.

Sometimes, 1 and 3 are vastly different, even 2 and 4 can be vastly different.

[Jojo92122 1,924]

@paojack - Thanks! Yeah the attorneys that I interviewed and the one we eventually hired said the first attorney should be reported to the Bar Assoc. He clearly did not communicate, nor perform as promised. However that is just more paperwork and stress right now. I know that the local Immigration office knows about this. The silver lining is that we did get the approval so that is a great thing. I just don't want to mark YES on the I485 and make our chances worse of keeping my family together, when legally he could mark NO and explain the circumstances. This is all so confusing for me...

Your husband did not go to prison for causing an accident. He went to prison because he fled the scene of an accident which makes it a criminal matter.

In order for a person to go to prison, the person must be arrested. When your husband turned himself in at the police station, the police arrested him and held him in jail for trial.

You must answer "yes." If you answer "no," you probably be making a material misrepresentation that will result in a rejection of the I-485. Saying "no" will make it worse for you. You cannot spin what your husband did as an accident. He committed a crime when he fled the scene of the accident. You have to be straight in providing your answer. Trying to spin it as an accident and not a big deal will only end badly. You cannot "legally ... could mark NO and explain the circumstances."

Americans love contrition - admit the failure and show remorse. Americans hate denying the severity of an act - look at any cover-ups.

[JimVaPhuong 4,863]

Leaving the scene of an accident is a crime - not an infraction - in every state I'm aware of. In most states it is a misdemeanor. In some states it is a misdemeanor even if injuries were involved.

You must answer "yes" to the question. Whether it will result in the AOS being denied depends on whether your state classifies it as an aggravated felony. If so, then it's a Crime Involving Moral Turpitude. His AOS would not only be denied, he'd be deported for it.

In California it would not be cause to deny AOS or deport him. Cerezo v. Mukasey, 512 F.3d 1163 (9th Cir. 2008) is one precedent case.

[LongJourney4Love 0]

My husband is in jail, not prison.

He wasn't arrested right away b/c he left the scene. According to the first atty, if he had paid the traffic violation ticket, nothing else would have happened. However the atty didn't receive a ticket, my husband wasn't mailed a ticket, and the first atty said he was going to handle, which he didn't. Therefore, a warrant was issued.

He was charged with "Accident - leaving the scene with injury", although there was no true injury. We could prove this through medical record of the alleged "victim" showing a clean MRI, negative CT scan and knee xrays, in addition to the video showing him running and jumping, BUT rather than go through a trial, he and our attorney decided to plead "withhold adjudication" and essentially serve a few months in jail. Due to an immigration hold, it would have been a waste of money to post bond, so we didn't.

I think after considering all the answers above that we will mark YES and explain. We have an immigration attorney as well, but I wanted to get advice from people who have "Been there" before us. Thank you all so much for your time to review and reply. God bless.

[JimVaPhuong 4,863]

My husband is in jail, not prison.

He wasn't arrested right away b/c he left the scene. According to the first atty, if he had paid the traffic violation ticket, nothing else would have happened. However the atty didn't receive a ticket, my husband wasn't mailed a ticket, and the first atty said he was going to handle, which he didn't. Therefore, a warrant was issued.

He was charged with "Accident - leaving the scene with injury", although there was no true injury. We could prove this through medical record of the alleged "victim" showing a clean MRI, negative CT scan and knee xrays, in addition to the video showing him running and jumping, BUT rather than go through a trial, he and our attorney decided to plead "withhold adjudication" and essentially serve a few months in jail. Due to an immigration hold, it would have been a waste of money to post bond, so we didn't.

I think after considering all the answers above that we will mark YES and explain. We have an immigration attorney as well, but I wanted to get advice from people who have "Been there" before us. Thank you all so much for your time to review and reply. God bless.

So, you didn't file the I-485 concurrently with the I-130? That might be a problem. Your husband is currently out of status, hence the immigration hold. If you'd concurrently filed the I-485 then he'd be in a period of authorized stay while his AOS was being adjudicated. Without that protection, he can be placed in removal proceedings when they let him out of jail.

You should still be able to file the I-485 and have it considered to be a concurrent filing if you include a copy of the I-130 NOA1 with the I-485 package.

Have you checked to see if leaving the scene of an accident with injuries is a felony in your state?

[Darnell 8,478]

oh well. i'm out.

[Brother Hesekiel 2,235]

Yes,

having an accident, whether it's running down a baby or an old lady or just any kind of accident and then taking off to avoid taking responsibility for one's actions is not only despicable, but a felony (once convicted) and -- to the best of my knowledge -- a crime of moral turpitude because a person with decent ethical standards wouldn't do that. Thanks for mentioning that you are a member of a church, by the way.

Of course this case has to be disclosed. Doing anything but would be material misrepresentation which surely would result in a denial of the case combined with a deportation as a persona non grata. Since there has no conviction taken place yet, it's possible that the I.O. will delay decision on the AOS until the criminal case has been decided upon.

In case you think I'm judgmental -- indeed I am. How would you feel if somebody rammed you with his car and then took off? I would be furious, and spend the rest of my life trying to find the coward and bring him to justice!

[JimVaPhuong 4,863]

Yes,

having an accident, whether it's running down a baby or an old lady or just any kind of accident and then taking off to avoid taking responsibility for one's actions is not only despicable, but a felony (once convicted) and -- to the best of my knowledge -- a crime of moral turpitude because a person with decent ethical standards wouldn't do that. Thanks for mentioning that you are a member of a church, by the way.

Of course this case has to be disclosed. Doing anything but would be material misrepresentation which surely would result in a denial of the case combined with a deportation as a persona non grata. Since there has no conviction taken place yet, it's possible that the I.O. will delay decision on the AOS until the criminal case has been decided upon.

In case you think I'm judgmental -- indeed I am. How would you feel if somebody rammed you with his car and then took off? I would be furious, and spend the rest of my life trying to find the coward and bring him to justice!

While I agree with the sentiment entirely, with all due respect, in many states it's not a felony, even if there are injuries involved. It's not a crime of moral turpitude unless the state considers it to be an aggravated felony. I cited the Cerezo v. Mukasey case in the 9th Circuit Court as evidence of this. That's why I urged the OP to find out if it's a felony in their state.