Denied i485 AOS, reason: Prostitution charge

[littoral1 15]

how they know u was arrested

[Lala land 0]

I told them about it, and it popped up during the FBI check. (Biometrics)

[jaycali 415]

how they know u was arrested

I told them about it, and it popped up during the FBI check. (Biometrics)

If you've ever been arrested, they know.

[Lala land 0]

I had a meeting with my attorney this morning, I have 2 options.

Re-filing my AOS and start the process all over again. So I won't be out of status and at least have an EAD card.

File for motion to re-open and Reconsider, which can take 6 to 12 months. But I'll be out of status, which means, can't work, can't drive etc.

They didn't put me in removal proceedings so I can't file for a waiver or see a judge.

What would you do??? My lawyer is giving me a week to think about what I want to do with my case.

[Newbie608 103]

I had a meeting with my attorney this morning, I have 2 options.

Re-filing my AOS and start the process all over again. So I won't be out of status and at least have an EAD card.

File for motion to re-open and Reconsider, which can take 6 to 12 months. But I'll be out of status, which means, can't work, can't drive etc.

They didn't put me in removal proceedings so I can't file for a waiver or see a judge.

What would you do??? My lawyer is giving me a week to think about what I want to do with my case.

A week? I would go ahead and refile ASAP because you never know when they'll send you a letter to leave the country. would you have to pay all the fees again?

[JimVaPhuong 4,863]

Unless you were denied without prejudice then you can't simply file again. It doesn't sound like you were denied without prejudice. I think they'd reject another filing, but your lawyer might know more than I do about this.

FWIW, while prostitution is a crime involving moral turpitude, they don't usually use the moral turpitude clause in these cases. Prostitution is it's own class of inadmissibility. A conviction isn't required. If the IO believes that the intending immigrant has engaged in prostitution within the past 10 years then they are inadmissible, and can't adjust status. Remember that adjustment of status is discretionary, and the IO has all the discretion.

Police aren't neophytes when it comes to the law in prostitution stings. They don't generally start kicking down doors until they've secured the evidence they need to take the case to court. Conversations are usually recorded, and they wait for the target to speak the magic words - what they'll do for how much money. If the police report says this conversation took place then that would probably be enough for an IO to conclude that the intending immigrant engaged in prostitution. The facts would not need to be proven in court. Immigration law doesn't require it.

[Lala land 0]

So should I reopen or motion to reconsider?

[him4life 13]

shouldnt the lawyer be the one to advise you on that decision? i swear some of these lawyers aint got a clue, thats why i dropped mine and became my own lawyer!

[Lala land 0]

Im asking for advice, she had hoped for the option to see a I-judge.

[IPv6Freely 64]

shouldnt the lawyer be the one to advise you on that decision? i swear some of these lawyers aint got a clue, thats why i dropped mine and became my own lawyer!

The lawyer not giving advice here makes me think they don't believe there is any real way to secure a positive outcome in this case.

[ceadsearc 515]

You are innocent until proven guilty in a court of law, NOT in the eyes of USCIS. You CAN be denied a benefit even if you were not convicted if USCIS believes you commited the crime. Jim and Vanessa both explained the discretionary part above.

[asdfg 18]

USCIS operates under civil guidelines (preponderance of evidence rather than beyond reasonable doubt) , so if you want to get benefit you have burden of proof and USCIS doesn't have to meet "beyond reasonable doubt" standard to rebuke you.They also have a discretion on adjudicating of applications.

However, first of all the allegation and proof of innocence was outside of USCIS jurisdiction (according to OP he was arrested, charged of crime and later charges dismissed). His innocence must have established in a criminal court if charges are dismissed and USCIS can't overrule it by having extra doubts, because case wasn't under USCIS jurisdiction and it wasn't in charge of deciding applicants alleged guilt.

Second, and if you read any number of court rulings you will find it out, USCIS officers are not permitted to abuse their discretion and if they do they get reprimanded by courts.

The applicant , if truly innocent , eligible of benefit and wrongly denied, will not only win in court if litigated but may also demand monetary compensations if under-trained officer makes grossly abusive and erroneous decision.

All above, of course, doesn't mean that it is the case with OP. We don't know who OP is, whether what he posts here is correct or not and whether he relays everything as is.

All we can say is that if he was found not guilty of charges then record of arrest and court disposition presented should suffice to overcome the requirements under relevant inadmissibility sections.

[Deputy Purple 1,294]

If you were charged but not convicted you can't be denied a benefit, because you are innocent until proven guilty.

You must include full record of disposition and send it to USCIS. If denied you can file a motion to reopen or , if placed in removal, go to court and present your case to the judge.

There is a USCIS memo , I think from 2003, and it obligates USCIS to place everyone in removal proceeding if they are denied immigration benefit , so there is no way they won't place you in removal unless they do a bigger error.

And going to court would be your best option. If not then MTR or other venues.

All above, of course, doesn't mean that it is the case with OP. We don't know who OP is, whether what he posts here is correct or not and whether he relays everything as is.

All we can say is that if he was found not guilty of charges then record of arrest and court disposition presented should suffice to overcome the requirements under relevant inadmissibility sections.

Please do not give such bad advice...

Prostitution & Drugs are exceptions to the "You must have been convicted" thing. If the IO has sufficient reason to believe that the applicant has willfully engaged in either then they are inadmissible.

I this case she was arrested by and undercover cop who had went to the hotel room where he found her after arranging the meeting. The cops don't just open the door and arrest you, they must get you to discuss trading sexual services for payment before they have a solid case. Apparently despite her contention that sex for money was never discussed the arrest report probably says otherwise. This is more than enough for her to be denied.

Edited July 22, 2012 by Bob 4 Anna

[VanessaTony 3,567]

She has been denied under INA 212(a)(2)(D). http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html

(a) Classes of Aliens Ineligible for Visas or Admission.-Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

(2) Criminal and related grounds.-

(D) Prostitution and commercialized vice.-Any alien who-

(i) is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status,

(ii) directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa, admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives or (within such 10- year period) received, in whole or in part, the proceeds of prostitution, or

(iii) is coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution, is inadmissible.

The important part in the above for the OP is the term "incidentally" which is defined as: "In an incidental manner; as a chance occurrence"

The problem here is also that there is NO mention of a conviction where there is for CIMT crimes (which as Jim explained prostitution has its own category as explained above) such as here:

(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 ....

This is something your lawyer needs to be dealing with. That's what you're paying him/her for. You need to look at whether you were denied with or without prejudice because if so, you can't just reapply, you need to file the Motion to Reconsider. I believe the Motion is cheaper but if you don't have an action plan for what evidence you're going to present for them to reconsider, then there's no point.

Please do not give such bad advice...

Prostitution & Drugs are exceptions to the "You must have been convicted" thing. If the IO has sufficient reason to believe that the applicant has willfully engaged in either then they are inadmissible.

I this case she was arrested by and undercover cop who had went to the hotel room where he found her after arranging the meeting. The cops don't just open the door and arrest you, they must get you to discuss trading sexual services for payment before they have a solid case. Apparently despite her contention that sex for money was never discussed the arrest report probably says otherwise. This is more than enough for her to be denied.

Agreed. I have posted the relevant section of the INA above which unlike CIMT does NOT mention that a conviction is required.

Edited July 22, 2012 by Vanessa&Tony

[belinda63 2,981]

Obviously they can do it because they did.