Jump to content
MajkC

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

36 posts in this topic

Recommended Posts

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.

Share this post


Link to post
Share on other sites

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?

Share this post


Link to post
Share on other sites

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.


Entry on VWP to visit then-boyfriend 06/13/2011

Married 06/24/2011

Our first son was born 10/31/2012, our daughter was born 06/30/2014, our second son was born 06/20/2017

AOS Timeline

AOS package mailed 09/06/2011 (Chicago Lockbox)

AOS package signed for by R Mercado 09/07/2011

Priority date for I-485&I-130 09/08/2011

Biometrics done 10/03/2011

Interview letter received 11/18/2011

INTERVIEW DATE!!!! 12/20/2011

Approval e-mail 12/21/2011

Card production e-mail 12/27/2011

GREEN CARD ARRIVED 12/31/2011

Resident since 12/21/2011

ROC Timeline

ROC package mailed to VSC 11/22/2013

NOA1 date 11/26/2013

Biometrics date 12/26/2013

Transfer notice to CSC 03/14/2014

Change of address 03/27/2014

Card production ordered 04/30/2014

10-YEAR GREEN CARD ARRIVED 05/06/2014

N-400 Timeline

N-400 package mailed 09/30/2014

N-400 package delivered 10/01/2014

NOA1 date 10/20/2014

Biometrics date 11/14/2014

Early walk-in biometrics 11/12/2014

In-line for interview 11/23/2014

Interview letter 03/18/2015

Interview date 04/17/2015 ("Decision cannot yet be made.")

In-line for oath scheduling 05/04/2015

Oath ceremony letter dated 05/11/2015

Oath ceremony 06/02/2015

I am a United States citizen!

Share this post


Link to post
Share on other sites

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?

Share this post


Link to post
Share on other sites

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.


Met online October 2010


Engaged December 31st 2011


heart.gifMarried May 14th 2013 heart.gif



USCIS Stage


September 8th 2014 - Filed I-130 with Nebraska Service Center


September 16th 2014 - NOA1 received


March 2nd 2015 - NOA2 received :dancing:



NVC Stage


March 28th 2015 - Choice of agent complete & AOS fee paid


April 17th 2015 - IV fee paid


May 1st 2015 - Sent in IV application


May 12th 2015 - Sent in AOS and IV documents


May 18th 2015 - Scan Date


June 18th 2015 - Checklist received


June 22nd 2015 - Checklist response sent to NVC


June 25th 2015 - Put for Supervisor Review


Sept 15th 2015 - Request help from Texas US Senator Cornyn and his team


Sept 23rd 2015 - Our case is moved from supervisor review to NVC's team for dealing with Senator requests


Nov 4th 2015 - CASE COMPLETE!!!! :dancing:



Embassy Stage


Dec 16th 2015 - Medical exam


Dec 21st 2015 - Interview


Dec 21st 2015 - 221(g) issued at interview for updated forms


Jan 13th 2016 - Mailed our reply to the 221(g) to the US Embassy, received and CEAC updated the next morning


Jan 20th 2016 - Embassy require more in-depth info on asset for i-864


Feb 1st 2016 - Sent more in-depth info on assets as requested. Received the next morning


Feb 16th 2016 - Visa has been issued :dancing: :dancing: :dancing: :dancing: :dancing:



In the US


April 5th 2016 - POE Newark. No questions asked.


April 14th 2016 - SSN received


May 10th 2016 - First day at my new job :dancing:


May 27th 2016 - Green Card received


June 7th 2016 - Got my Texas driver's license

Share this post


Link to post
Share on other sites

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.


Entry on VWP to visit then-boyfriend 06/13/2011

Married 06/24/2011

Our first son was born 10/31/2012, our daughter was born 06/30/2014, our second son was born 06/20/2017

AOS Timeline

AOS package mailed 09/06/2011 (Chicago Lockbox)

AOS package signed for by R Mercado 09/07/2011

Priority date for I-485&I-130 09/08/2011

Biometrics done 10/03/2011

Interview letter received 11/18/2011

INTERVIEW DATE!!!! 12/20/2011

Approval e-mail 12/21/2011

Card production e-mail 12/27/2011

GREEN CARD ARRIVED 12/31/2011

Resident since 12/21/2011

ROC Timeline

ROC package mailed to VSC 11/22/2013

NOA1 date 11/26/2013

Biometrics date 12/26/2013

Transfer notice to CSC 03/14/2014

Change of address 03/27/2014

Card production ordered 04/30/2014

10-YEAR GREEN CARD ARRIVED 05/06/2014

N-400 Timeline

N-400 package mailed 09/30/2014

N-400 package delivered 10/01/2014

NOA1 date 10/20/2014

Biometrics date 11/14/2014

Early walk-in biometrics 11/12/2014

In-line for interview 11/23/2014

Interview letter 03/18/2015

Interview date 04/17/2015 ("Decision cannot yet be made.")

In-line for oath scheduling 05/04/2015

Oath ceremony letter dated 05/11/2015

Oath ceremony 06/02/2015

I am a United States citizen!

Share this post


Link to post
Share on other sites

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)

Share this post


Link to post
Share on other sites

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 by NuestraUnion

“When starting an immigration journey, the best advice is to understand that sacrifices have to be made; whether it is time, money, or separation or a combination of any or all.” - NuestraUnion

Share this post


Link to post
Share on other sites

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)

Share this post


Link to post
Share on other sites
 
Didn't find the answer you were looking for? Ask our VJ Immigration Lawyers.

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
- Back to Top -


Important Disclaimer: Please read carefully the Visajourney.com Terms of Service. If you do not agree to the Terms of Service you should not access or view any page (including this page) on VisaJourney.com. Answers and comments provided on Visajourney.com Forums are general information, and are not intended to substitute for informed professional medical, psychiatric, psychological, tax, legal, investment, accounting, or other professional advice. Visajourney.com does not endorse, and expressly disclaims liability for any product, manufacturer, distributor, service or service provider mentioned or any opinion expressed in answers or comments. VisaJourney.com does not condone immigration fraud in any way, shape or manner. VisaJourney.com recommends that if any member or user knows directly of someone involved in fraudulent or illegal activity, that they report such activity directly to the Department of Homeland Security, Immigration and Customs Enforcement. You can contact ICE via email at Immigration.Reply@dhs.gov or you can telephone ICE at 1-866-347-2423. All reported threads/posts containing reference to immigration fraud or illegal activities will be removed from this board. If you feel that you have found inappropriate content, please let us know by contacting us here with a url link to that content. Thank you.
×