Arrest leading to VWP overstay, case ultimately dismissed. Ongoing concern?

[MajkC 0]

During December 2014, whilst I was in the USA on the Visa Waiver Program, and as I was travelling to New Orleans, I was illegally stopped and searched in Montague county, Texas. I was arrested and incarcerated with only days left on my Visa, and thus had to overstay in order to quell the legal charges levied against me. Once released, after being incarcerated for four days, I sought legal counsel and commenced my probationary period which involved a weekly check-in by email, delineating my location within the US.

On the 22nd January 2015 my case was dismissed "in the interest of justice", however after having to pay attorney fees and the bond money, myself and my family took a further month to acquire

my return flight, constituting an overstay of less than 180 days. Now, after having got engaged to my then girlfriend, I seek to re-enter in to the USA under a K1 visa so that myself and my fiancé can

marry and start a home and business together, but I am critically aware that it has only been around 18 months since my departure from the USA.

Do you have any advice concerning this situation? Do you anticipate that this could be problematic for me entering in to the USA again so soon? I have a great fear that I could still be living in the

wake of this event, and I'd hate to think that it could limit my ability to spend my life with the one I love.

[Merrytooth 5,748]

what kind of charges?

[mallafri76 1,012]

Your overstay was less than 180 days, so I'm pretty sure that won't matter. The arrest however, may be an issue. Just because your case was dismissed, it doesn't mean the stop and search was illegal. On what grounds were you arrested?

[MajkC 0]

It is my understanding that the stop and search was illegal because the arresting officer failed to read me my rights prior to the search and my detention. I was arrested for being in possession what they deemed was 1-4g of a cannabis concentrate (schedule 3 felony).

So, to your knowledge Mallafri76, the overstay of less than 180 wouldn't negatively impact my attempt to move to the US to marry my fiancé?

[Merrytooth 5,748]

The overstay of less than 180 is the least of your concern now...

The possession of drug cannabis is a bigger problem.

[EM_Vandaveer 2,408]

The nature of the arrest is what you should worry about. You need to get documentation about the arrest & the court case as the Embassy will ask for it.

[MajkC 0]

The nature of the arrest is what you should worry about. You need to get documentation about the arrest & the court case as the Embassy will ask for it.

What documentation do you think? I have ready the dismissal which states that the case was dismissed "in the interest of justice" and also a complete conversation with the Judge confirming the receipt of my check-ins. (My bond conditions were that I checked in with her once weekly to log my location with in the US.)

Will the focus be on the nature of the arrest, even though the case ultimately was dismissed in the interest of justice?

[mallafri76 1,012]

It is my understanding that the stop and search was illegal because the arresting officer failed to read me my rights prior to the search and my detention. I was arrested for being in possession what they deemed was 1-4g of a cannabis concentrate (schedule 3 felony).

So, to your knowledge Mallafri76, the overstay of less than 180 wouldn't negatively impact my attempt to move to the US to marry my fiancé?

Actually, they don't have to read you your rights. That's just required in movies.

The overstay won't matter but the arrest will, even though the case was dismissed. I would talk to a lawyer. You might be better off going the CR-1 route rather than fiancé. With the CR-1, there are waivers for these kind of things. Not sure whether or not the same applies for a k-1.

[EM_Vandaveer 2,408]

What documentation do you think? I have ready the dismissal which states that the case was dismissed "in the interest of justice" and also a complete conversation with the Judge confirming the receipt of my check-ins. (My bond conditions were that I checked in with her once weekly to log my location with in the US.)

Will the focus be on the nature of the arrest, even though the case ultimately was dismissed in the interest of justice?

Yes. When it comes to immigration, they don't really care if it was dismissed, unfortunately. Just the fact that you were arrested on this charge may be a problem. It's up to the CO at the interview. You need to be upfront about it. Put it on your visa application etc.

It would not hurt to have a consultation with a US immigration attorney about the possible impact of this case on your immigration journey.

[MajkC 0]

Actually, they don't have to read you your rights. That's just required in movies.

The overstay won't matter but the arrest will, even though the case was dismissed. I would talk to a lawyer. You might be better off going the CR-1 route rather than fiancé. With the CR-1, there are waivers for these kind of things. Not sure whether or not the same applies for a k-1.

I see, that intrigues me to hear. Do you have any idea why the case may have been dismissed 'in the interest of justice' then? It was my understanding that it was the arresting officers' lack of adhering to process that clinched the dismissal. I would like to think that given the case was dismissed it would be looked upon sparingly in light of my visa application. (man can dream)

[yuna628 9,680]

Not withstanding the arrest (whether it was legal or not) and the overstay... your other issue is going to be the consumption of pot. While a few states have made the possession legal, it is still illegal federally. Immigration is in federal domain, and the fact you possessed pot and or consumed it is going to come up during the medical. You will be asked questions as to drug use. Unfortunately it doesn't matter if it was a one-off, a small amount, medicinal, or a million other ways to explain it... it's going to have to be explained and it is up to the panel doctor whether it's going to be let slide on the one hand... and then on the interviewing officer for the rest of it. You'll need to be digging into records and consulting a lawyer for immigration matters (and a good one).

[Unlockable 7,315]

So the obvious question is have you ever consumed it? Because it is a reason for a denial and a 1 year ban. Even if a person don't consuming it today but have years ago can result in a ban. There are people posting on this forum that is currently experiencing a ban for marijuana consumption.

Yes, your case was dismissed but you still have to share the information with immigration.

Edited June 10, 2016 by NuestraUnion

[MajkC 0]

Not withstanding the arrest (whether it was legal or not) and the overstay... your other issue is going to be the consumption of pot. While a few states have made the possession legal, it is still illegal federally. Immigration is in federal domain, and the fact you possessed pot and or consumed it is going to come up during the medical. You will be asked questions as to drug use. Unfortunately it doesn't matter if it was a one-off, a small amount, medicinal, or a million other ways to explain it... it's going to have to be explained and it is up to the panel doctor whether it's going to be let slide on the one hand... and then on the interviewing officer for the rest of it. You'll need to be digging into records and consulting a lawyer for immigration matters (and a good one).

By records, do you mean records of cases that set a precedent on the matter?

I am unsure as to the nature of the dismissal itself, but does the outcome of a dismissal not have any effect on my standing with immigration? I believe I was profiled, unlawfully arrested & heavily over charged (a schedule 3 felony which is the equivalent of being in possession of 5lbs of marijuana)

[yuna628 9,680]

By records, do you mean records of cases that set a precedent on the matter?

I am unsure as to the nature of the dismissal itself, but does the outcome of a dismissal not have any effect on my standing with immigration? I believe I was profiled, unlawfully arrested & heavily over charged (a schedule 3 felony which is the equivalent of being in possession of 5lbs of marijuana)

By records I mean any and all records that pertain to the nature of the charges brought against you, whether it was dismissed or not. There is going to be a record of arrest, and the nature of any charges brought against you, whether they were dropped or not.

No. It doesn't matter whether you believe you were unlawfully detained or if the charges were stepped down or even Nolle Prosequi. The fact that you were in possession of or have consumed at some point in your life long ago or recently, are all factors that can lead to a 1 year ban (requiring you to be cleared medically).

In addition to uncovering such information from the stateside of things, it is also required that UK immigrants obtain a police certificate from their home country.

Again it doesn't matter if the charges were dismissed. You are going to have to admit to the possession or the use of pot. This happens to people all the time. Some make it through, and some are given a temporary ban. It's up to the doctor and officer to decide.

Edited June 10, 2016 by yuna628

[Harpa Timsah 13,258]

Actually, they don't have to read you your rights. That's just required in movies.

The overstay won't matter but the arrest will, even though the case was dismissed. I would talk to a lawyer. You might be better off going the CR-1 route rather than fiancé. With the CR-1, there are waivers for these kind of things. Not sure whether or not the same applies for a k-1.

No, they actually must read you your rights. It is called a Miranda warning in US law.

Edited June 10, 2016 by Harpa Timsah