N-400 Deffered prosecution to drop DUI charge/ Dismiss

[moe1985 8]

Quick question guys,

How does USCIS view deferred prosecution? Do they see it as conviction/ guilt? Even though the charges are being dismissed after completing community service and paying fines?

Please share your thoughts and thanks everyone!

Edited February 22, 2015 by moe1985

[blest.but.strest 50]

Quick question guys,

How does USCIS view deferred prosecution? Do they see it as conviction/ guilt? Even though the charges are being dismissed after completing community service and paying fines?

Please share your thoughts and thanks everyone!

It all depends if you pleaded guilty or not guilty in order to be offered deferred prosecution. If you pleaded guilty at any time during your case, even if your charges are dismissed at the end of the deferred prosecution program, it will still be an admission of guilt at the eyes of USCIS. An admission of guilt can cause minor or major problems for you when filing for citizenship depending on the crime.

If you have never pleaded guilty(NOT guilty) and the state dismissed your charges then you are fine, you will have no problem, just make sure you have all the documents proving that the charges were dropped.

Edited February 22, 2015 by blest.but.strest

[moe1985 8]

Thank you, I think pleading guilty is one of the condition that needs to be met before granting deferred prosecution!

It all depends if you pleaded guilty or not guilty in order to be offered deferred prosecution. If you pleaded guilty at any time during your case, even if your charges are dismissed at the end of the deferred prosecution program, it will still be an admission of guilt at the eyes of USCIS. An admission of guilt can cause minor or major problems for you when filing for citizenship depending on the crime.

If you have never pleaded guilty(NOT guilty) and the state dismissed your charges then you are fine, you will have no problem, just make sure you have all the documents proving that the charges were dropped.

Edited February 22, 2015 by moe1985

[blest.but.strest 50]

Thank you, I think pleading guilty is one of the condition that needs to be met before granting deferred prosecution!

That's not a good thing, you should get a lawyer to talk to the prosecutor in order to grant you deferred prosecution without having to plead guilty, that would be ideal. Your lawyer can explain to the prosecutor that you are filing for immigration benefits and that a guilty plea can have a negative effect on your petition with USCIS. Many prosecutors will make the exception if you do not have a criminal past.

[moe1985 8]

Thank you so much for the info, I will surely have my attorney aware of this!

That's not a good thing, you should get a lawyer to talk to the prosecutor in order to grant you deferred prosecution without having to plead guilty, that would be ideal. Your lawyer can explain to the prosecutor that you are filing for immigration benefits and that a guilty plea can have a negative effect on your petition with USCIS. Many prosecutors will make the exception if you do not have a criminal past.

[blest.but.strest 50]

Thank you so much for the info, I will surely have my attorney aware of this!

Yes and have your lawyer INSIST that even if the charges are dropped at the end, just you pleading guilty initially is considered a admission of guilt and/or conviction, and that doesn't fly with USCIS.

Take care and good luck

[Cathi 5,609]

In your previous topic you were adamant that you were not guilty. Why would you plead guilty and agree to community service if you weren't drunk?

[minions2 24]

why did you plead guilty when you said in your previous post that it was raining and that caused your accident? guilty means you were under the influence and that is the cause of your accident

[moe1985 8]

I have not pleaded guilty, I am just weighing my options before I go to court. My attorney wants a certain outcome rather than going to trail and gamble and deal with uncertainty to avoid trial headache and extra cost! Based on my research, if I get deferred prosecution to dismiss case after community service without pleading guilty, it will not affect immigration!

In your previous topic you were adamant that you were not guilty. Why would you plead guilty and agree to community service if you weren't drunk?

I did not plead guilty, I am trying to enter a plea ( Deferred prosecution) without pleading guilty so I could get case dismissed without affecting immigration process!

why did you plead guilty when you said in your previous post that it was raining and that caused your accident? guilty means you were under the influence and that is the cause of your accident

The Definition of "Conviction" for Immigration Purposes

1)Convictions under the INA. INA § 101(a)(48)(A); 8 U.S.C. § 1101(a)(48)(A).

2)Definition of Conviction:

a) For purposes of immigration law,a conviction is defined as the following:

i)[A] formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—

ii) A judge or jury has found the alien guilty or the alien has entered a plea of nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

iii) The judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

iv) Any reference to a term of imprisonment of a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of lawregardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.

b) The controlling factor in finding a conviction under the immigration law is an admission of the essential elements of the offense charged,followed by some form of restraint on the defendant’s liberty.

i) Probation counts as a restraint of liberty.

3)Deferred judgments

a) Deferred judgments are considered convictions if the person has to plead guilty to receive the deferred judgment. Matter of Chairez-Castaneda, 21 I&N Dec. 44 (BIA 1995).

4)Deferred Prosecutions

a) Deferred Prosecutions are likely not considered to be a conviction for immigration purposes because the non-citizen defendant never admits guilt unless the deferred prosecution is violated. Matter of Grulon, 20 I&N Dec. 12 (BIA 1989).

5)Juvenile Adjudications

a) Juvenile adjudications are not convictions for purposes of immigration law if the would qualify as juvenile adjudications under the Federal Juvenile Delinquency Act. Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981); Matter of Devison, 22 I&N Dec. 1362 (BIA 2000).

b) However,if the juvenile commits more than one offense,then the person can be rendered inadmissible. U.S. State Department regulations specify that “[a]n alien convicted of a crime involving moral turpitude or admitting the commission of acts which constitute the essential elements of such a crime and who has committed an additional crime involving moral turpitude shall be ineligible [for admission to the U.S.] even though the crimes were committed while the alien was under the age of 18 years." 22 C.F.R. § 40.21(a)(3).

c) Despite the fact that a juvenile adjudication does not render a non-citizen deportable,the same adjudication may be a discretionary factor that is used by the ICE or the Immigration Judge to deny any relief or benefits for which discretion is a factor. These include applications for permanent residency,relief from deportation and applications for citizenship.

6)Definition of Sentence Under INA§ 101(a)(48)(A); 8 U.S.C. § 1101(a)(48)(A)

a) A sentence that includes any reference to a term of imprisonment or a sentence is deemed to include the period of incarceration or confinement ordered by a court of law,regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.

b) Suspended sentences count in their entirety.

7) Withdrawals of Pleas and Reconsiderations of Sentence

a) In order to withdraw a plea or conviction for immigration purposes,you must show that the reason for the withdrawal is ineffective assistance of counsel,invalid waiver of counsel or some similar Constitutional issue or issue relating to legal invalidity of the criminal proceedings. A simple desire to avoid immigration consequences is insufficient to eradicate a prior plea. Matter of Pickering, 23 I&N Dec. 621 (BIA 2003).

b) However,a reduction in sentence need not be based on constitutional grounds in order to be valid for immigration purposes. Matter of Song, 23 I&N Dec. 173 (BIA 2001).

Edited February 24, 2015 by moe1985

[ExPatty 502]

I have to ask: what evidence do they have that would show you are guilty of DUI if you had no alcohol in your blood?

[moe1985 8]

They have no evidence other than the cop's statement that he smelled alcohol odor which, in every DUI case , cops say this statement.

I have to ask: what evidence do they have that would show you are guilty of DUI if you had no alcohol in your blood?

[ExPatty 502]

Seems like kind of a BS way to convict somebody. Good luck!

[Edkox 1]

I have my fair share of legal problems. Here is my advise, if you differed it, you have to disclosed it and let the officer make a judgement on it. I can assure this unless you will chose to not disclose it and let have a chance, but if you disclose it will bite you.

[Cathi 5,609]

They have no evidence other than the cop's statement that he smelled alcohol odor which, in every DUI case , cops say this statement.

But we all know the law is automatic guilt if your refuse the breathalyzer, and you refused.

[moe1985 8]

I have already been to the interview and disclosed the incident!

I have my fair share of legal problems. Here is my advise, if you differed it, you have to disclosed it and let the officer make a judgement on it. I can assure this unless you will chose to not disclose it and let have a chance, but if you disclose it will bite you.

No sir, I disagree. R

But we all know the law is automatic guilt if your refuse the breathalyzer, and you refused.

No sir, I disagree. Refusing the breathalyzer is not an automatic guilt ( At least NOT in my state). It all depends on the circumstances also, most attorneys dont agree with taking the breathalyzer test!

But we all know the law is automatic guilt if your refuse the breathalyzer, and you refused.

Edited February 25, 2015 by moe1985