Inadmissible?

[txladykat 1]

Ok, I have an interesting situation and after having talked to two immigration lawyers, neither can give me a straight answer.

My husband obtained a conditional green card in July 2009 and we moved from from Denmark to the states. In February of this year we learned that he had been charged with a crime back in Denmark that allegedly occurred in 2005. We ourselves contacted the FBI to find out what it was all about (he had no clue why they were looking for him) and that started the ball rolling. We eventually learned why and that Denmark was requesting his extradition. Learning this, he voluntarily surrendered to the FBI. He has been in custody since June of this year awaiting extradition. Unfortunately, at that same time we had filed the Petition to remove conditions (which is still pending). He will be returned to Denmark in 1.5 weeks to face the charges. The charge, under Danish law, is embezzlement. This is where it gets tricky. When you read the statute under Danish law for embezzlement, it does not have the same elements as embezzlement in the US - thus there is no finding of fraud. Our criminal attorney in Denmark has encouraged him to agree to a "fast track verdict" to avoid a lengthy stay/trial in Denmark. We are inclined to agree. If we accept the deal, basically once he gets there, he gets credit for the time in detention in the US and he is free to go. Now the even trickier part. First, is it considered an aggravated felony? A crime of moral turpitude? Neither? Again, trying to interpret the statute under Danish law to US law makes it very confusing. His Danish attorney is insistent that pleading guilty to the statute is not a crime of moral turpitude or fraud in Denmark - but how will the US look at it?

Now...even more confusing, does he come back to the US on his valid green card and wait for the rest of the process on the petition to remove conditions? Or do we abandon that petition and refile the I-130 with a waiver? If so, what waiver do we file? 601 or 212? If he attempts to come back into the US on his green card and he is determined inadmissible at the border, will they give him the opportunity to just catch another flight and return to Denmark?

I am soooo confused by all the different variables, I just don't know what to do. I leave in 1.5 weeks to join him in Denmark to deal with all of this because he doesn't have anyone in Denmark. He was an only child and both his parents passed earlier this year. He only had one aunt (deceased) who never married or had children, so he literally has no one over there. I hate to think of leaving him there - with no job, no house, no family. We are his only family.

[Americanfromage 0]

TREAD VERY CAREFULLY!!!!

At a minimum you are facing a lifetime ban with a waiver available. At the maximum, you are facing totally ineligibility for a waiver and a lifetime ban. ….never being able to reenter the USA, even on a tourist visa.

If the crime is a CIMT, the green card will be revoked. You will NOT be able to adjust status and deportation proceedings could begin.

If you started the procedure all over, you most likely would be denied a visa and stuck outside the USA, with a lifetime ban.

Your biggest problem is that he has ALREADY had a green card. This question was asked on immigrate2us.net, a few months ago:

Q:I understand that no waiver is available for people who have had PR status and are then convicted of an aggravated felony. What if “the crime” was committed before temporary permanent resident status was granted? I did not misrepresent myself on immigration forms. The authorities investigated and arrested me years later for something done years before. Left USA before adjusting status. Do you think a waiver would be available?

(A) Many of the rules regarding aggravated felons apply to just lawful permanent residents, so if you never adjusted status, you may possibly have relief. The laws on this topic are very complicated, though, so you definitely need to have a consultation with an attorney. It's too complex for the chat.

Here is a definition of Aggravated felony…..

 Conviction of an aggravated felony—this category, which overlaps many of the above categories, has particularly harsh consequences because convictions falling into the aggravated felony category usually bar any possible waiver of deportation. Aggravated felonies include not only crimes such as murder, rape, and sexual abuse of a minor, but also many drug or firearm offenses, regardless of sentence; any crime of violence, theft or burglary offense, or obstruction of justice offense for which an individual gets a prison sentence of one year or more; fraud or deceit offenses where the loss to the victim(s) exceeds $10,000, as well as an expanding list of other specific offenses. As a result of broad interpretations of the statutory definition of “aggravated felony,” the term may include even some state misdemeanors such as a misdemeanor drug possession offense (preceded by a prior drug offense), misdemeanor sale of marijuana, or a misdemeanor petty larceny offense with a one-year prison sentence, actual or suspended.

I am really sorry for your situation. It is VERY VERY important how you handle the case in Denmark as the outcome could affect you forever.

I wish you all the best.

[txladykat 1]

Thanks so much. I am confused by the comments on adjustment of status. We aren't adjusting status if we are removing conditions, right? I have already spoken to two immigration attorneys, neither of which can give me a clear answer, and I paid to find that out! All they told me is what I already found in my own research.

[Used to be broken 143]

Thanks so much. I am confused by the comments on adjustment of status. We aren't adjusting status if we are removing conditions, right? I have already spoken to two immigration attorneys, neither of which can give me a clear answer, and I paid to find that out! All they told me is what I already found in my own research.

Get an attorney that knows what he is doing, ask for cancellation of removal. You need an attorney who specializes in criminal immigration defense. This is nothing to play around with, do everything you can to keep him from being removed. this type of situation is well beyond the scope of a public forum. Call Carl Shusterman's office in California and get a referral to the right kind of attorney.

[Brother Hesekiel 2,235]

Your husband is a LPR and that does not change until a federal judge decides otherwise, which would only happen if USCIS files a formal petition to revoke his status.

Apparently they didn't.

If he got his Green card in July of 2009, you guys should have filed for RoC between April and July of this year.

Did you do that? Is so, he got an extension letter and will be able to enter the US again with his card + the letter. If they deny your RoC, you fight it. Worst case scenario, you file for AoS. No police report needed from Denmark for that.

If you did not submit the I-751, I would be flabergasted.

If you failed to do the easy thing, you guys will have to start over with a new I-130. Whether or not a conviction is seen as a deal breaker you'll find out. I am 50/50 on this. Luckily the result will be the same: a 10-year Green Card.

Edited October 1, 2011 by Just Bob

[Americanfromage 0]

It sounds like he is already in Demark. It is too late for cancellation of removal.

When he renters they will know he was extradited and held in jail in the states for what sounds like four months. That is the FBI’s job. The border agents will most likely take him to secondary inspection to ask him about this. If he is found not guilty in Demark, he may not have any problem. If he is found guilty, they will most likely send him back. (This is assuming the “crime” is considered a CIMT, which I believe embezzlement will be.)

When you read the news today, it seems these are the types of people they are rounding up and deporting. Those that had past criminal convictions that never went through the waiver process.

Everything is really going to depend on what happens in Demark. Before making any plea deal, I would check with a criminal immigration attorney in the states, to ensure it will not affect his immigration status, or at the least, that you will be eligible for a waiver.

[txladykat 1]

Hi Bob,

Yes we filed it in June. He got the one year extension. My concern is what will happen when he tries to come back to the US from Denmark? Plea deal is our only option. We have a very good attorney in Denmark who says unfortunately because the case is so old, we would not likely prevail at trial because of lack of documentation for money spent. Sad thing is - my husband didn't do anything wrong and disposed of copies of receipts because 6 years later he didn't think he needed them. Our attorney in Denmark said the laws are different and the burden of proof - so he urges us to take the plea deal. The plea deal would give Denmark a conviction and my husband would be released within a month of returning to Denmark for time served.

[LIFE'SJOURNEY 970]

I would be very careful of a plea bargian deal, your crimminal lawyer knows nothing about US immigration law. I would do a consultation with a US immigration lawyer, before entering into a plea. The two lawyers can correspond.

Your husband maybe be able to re-enter the US, but you'll by law are responsible to report any changes to your answers on the ROC aplication to immigration. If not during ROC, his situation will be captured durning the re-newal of his 10year card later on down the road. He will never be able to apply for citizenship. This conviction will not stay under the wire for long. If US ever find out about the conviction, the US by right can re-voke his GC at anytime.

Edited October 1, 2011 by LIFE'SJOURNEY

[txladykat 1]

We disclosed the arrest on our ROC, so I know it will come up eventually while doing the ROC. He hasn't even had his biometrics yet because it was scheduled after he surrendered to the FBI. I do want to find an immigration attorney, I just don't want to drop thousands of dollars on the wrong attorney. I have spoken with a couple who state they could handle it (most their experience is in deportation) but have never been faced with the situation, so that concerns me.

We are going to have to take the deal, otherwise, he will lose his conditional green card due to time spent overseas awaiting trial and any possible resulting conviction. If we don't take the 9 month plea offer he is likely to end up with a sentence of 5-10 years.

I think if he can come back in on his green card and one year extension it will be easier to know how to proceed at that time, but the question remains, will they even let him in again? If they don't let him in, will he be allowed to voluntarily board a plane and leave?

[LIFE'SJOURNEY 970]

If he takes the deal, then be prepare for US immigration to denie his ROC. Be prepare to fight for his GC in court. If he was processed thru the FBI, then he is probably flagged thru ICE. He will have a hard time at POE. Yes, they will allow him to board a plane back to Demark, but he maynot be able to even leave Denmark, because his GC maybe already flagged thru the FBI for airlines.

Note; the FBI flagg all system, state and local government don't have the resource to do this.

Wait has he miss his biometric appt, if so then his extension letter is no longer valid.

Edited October 1, 2011 by LIFE'SJOURNEY

[CC90 90]

I'm not well versed on these issues, but I'll leave my opinion.

Embezzlement is usually considered a CIMT. I believe USCIS will retroactively revoke or otherwise simply revoke/deny lifting of conditions his LPR status during the ROC process. Why? Because you're giving them a chance to when you file for ROC. Otherwise, they have to go out of their way to revoke it. Not to mention that the FBI would not likely agree to extradite an LPR if it wasn't considered an aggravated folony.

I would get an American immigration/criminal attorney and put them in touch with the Danish one. It's likely that USCIS will find this crime to be a CIMT as it has done before. I personally don't think a plea deal is a good idea if there's any chance of him being found not guilty. If the FBI actually extradited him as an LPR, this is a VERY HIGH indiction that it's considered an aggravated felony/CIMT. If he was outside the US for a long time during this process and found not guilty, I highly believe that this is good grounds for an SB-1 visa, which he can get without going through the lengthy IR-1. Either way, you still have a valid approved I-130, which doesn't terminate unless you get divorced.

Please don't make a decision without consulting an American immigration and/or criminal attorney.

[CC90 90]

If he takes the plea deal and tries to fly back, whether he is able to be admitted depends on if he still is in LPR status. If it has been revoked for the reasons I've stated above, then he will not be admitted. An abandoned ROC application results in the LPR going out of status, even if the extension letter is still "valid." If he misses the bio and USCIS doesn't agree to put the case in abeyance while he is out, the application will be denied and his LPR status will be invalid as of the expiration date shown on the card.

Get an attorney to petition USCIS to put the ROC case an abeyance until he returns; this will allow him to be admitted on his extension letter (assuming it's date valid) and you can fight the ROC denial.

[LIFE'SJOURNEY 970]

Please obtain a US immigration lawyer, one mistake can take you a life-time to correct.

[txladykat 1]

No, he hasn't missed the biometrics, I have been rescheduling it every month when we get the notice, so technically his one year extension is still good. We are prepared to fight in Court for the GC, just need to be able to get him back here to fight it. He has never entered on his GC so I don't know what they ask/look at it during the time of entry if you are entering with a GC....I have talked to three immigration attorneys so far and their advice - avoid a conviction of CIMT or aggravated felony - duh - I kinda knew that , but unfortunately its unavoidable. We are hopeful though, that we avoid the the aggravated felony. According to the Danish criminal lawyer - a guilt of embezzlement is not a fraud conviction. If there were a finding of fraud it would be under a different statute than the one he is currently indicted under - so that is hopeful. Our Danish attorney is also a law professor so he offered to write a letter stating such. That is a positive thing - albeit one that will need to be argued in Court I suppose. Now just to get back into the US and try to avoid a finding of CIMT. Hoping that if the Judge finds no moral turpitude involved on the conviction record, that could help. Our Danish lawyer thinks he might be able to get that on the record in court as well.

As for the extradition/aggravated felony issue, that isn't how it works. We had to go through an extradition hearing, which is akin to a probable cause hearing. If the US Magistrate finds probable cause (which she did because the burden is so low), then you are extraditable under the relevant Treaty - which allows for extradition on any case where the maximum penalty is in excess of one year. Denmark criminal laws are different than US laws - there is no distinction between misdemeanor and felony like in the US - also the burden of proof is lower so you have about a 1% chance of prevailing at trial.

It would be nice if the stop him on the outbound flight rather than after he gets to the US. Save a lot of money, time and energy

[CC90 90]

No, he hasn't missed the biometrics, I have been rescheduling it every month when we get the notice, so technically his one year extension is still good. We are prepared to fight in Court for the GC, just need to be able to get him back here to fight it. He has never entered on his GC so I don't know what they ask/look at it during the time of entry if you are entering with a GC....I have talked to three immigration attorneys so far and their advice - avoid a conviction of CIMT or aggravated felony - duh - I kinda knew that , but unfortunately its unavoidable. We are hopeful though, that we avoid the the aggravated felony. According to the Danish criminal lawyer - a guilt of embezzlement is not a fraud conviction. If there were a finding of fraud it would be under a different statute than the one he is currently indicted under - so that is hopeful. Our Danish attorney is also a law professor so he offered to write a letter stating such. That is a positive thing - albeit one that will need to be argued in Court I suppose. Now just to get back into the US and try to avoid a finding of CIMT. Hoping that if the Judge finds no moral turpitude involved on the conviction record, that could help. Our Danish lawyer thinks he might be able to get that on the record in court as well.

As for the extradition/aggravated felony issue, that isn't how it works. We had to go through an extradition hearing, which is akin to a probable cause hearing. If the US Magistrate finds probable cause (which she did because the burden is so low), then you are extraditable under the relevant Treaty - which allows for extradition on any case where the maximum penalty is in excess of one year. Denmark criminal laws are different than US laws - there is no distinction between misdemeanor and felony like in the US - also the burden of proof is lower so you have about a 1% chance of prevailing at trial.

It would be nice if the stop him on the outbound flight rather than after he gets to the US. Save a lot of money, time and energy

Glad to hear you're on top of it.

USCIS probably won't consider the letters/record about the no moral turptitude since it's rather robotic and not a lot of caselaw in this area, but the court and/or appeals board will probably give them serious weight. Try to get it in as many places as you can. This is where a good attorney on both sides comes in.

If you're able to keep rescheduling the bio, that is good; it's keeping it in abeyance. As long as the ROC hasn't been denied and his letter hasn't expired, he will most likely be admitted without hassle. They don't ask significantly different questions than they would a US citizen. Just try to make sure he's not gone longer than a year, and I wouldn't offer any significant detail about the exact reason for his absence to CBP. However, don't lie, of course.