DACA + Marriage + "expunged" Marijuana conviction = Permanent residency?

[dacapurgatory 2]

Hello all, thank you in advance for reading

 

I recently started my permanent residency status adjustment after getting married last year. I'm going through this with a lawyer who has been very helpful and so far has made it super easy. 

 

But as fellow DACA-ers may know, there's yet another obstacle, and this one is pretty terrifying.

 

Early 2010 back when I was attending University, I received a citation for underage drinking and "Use/Poss less than 1oz marijuna" charges. Being a stupid kid back then, I just did what all the other kids did at the time: goto court, plea guilty and take "diversion" classes assuming the charges would disappear or "expunged," since that's what the authorities told me. Lo and behold, the charges were indeed dismissed but obviously the record is out there.

 

Since graduating in 2013, I've used DACA to get ahead in life: worked my way to a respectable salary (feel free to ask what it is, if it's important), bought a house, got married and just got a puppy and a kitten with the wife. 

 

With the help of the lawyer, my wife and I have applied our way into the green card interview, scheduled for early next week. I truly felt I finally did it.

 

Earlier this week, I had what I thought would be just a simple walkthrough with my lawyer of what to expect in the interview. He verified my details / application, and the incident came up. While there were a couple email exchanges talking about this prior to the submission of the application, it appears there was a bit of miscommunication between the lawyer, the paralegal, myself and my wife. Suffice it to say that they were under the impression this was purely an "academic" incident; i.e. no police reports were filed and the University had handled it, so our adjustment of status application submission had "No" for all the crime/drug questions. I did a bad job of explaining given that until the last week, I really thought the incident was "expunged.

 

Now it appears this could be very serious and instead of getting my green card, I could face deportation...

 

While I trust my lawyer fully, I still wanted to ask the community just to get a wider perspective and become more educated on the following questions, apologies if the questions aren't super linear, I'm under a lot of stress right now.

 

1 - Will USCIS for sure find this incident in my background? Keep in mind when the incident occurred, it was filed under my nickname since I was completely undocumented at the time. Though the court records I obtained earlier this week show that I did put my legal name down (on top of putting my nickname down as an "alternate names used" in our adjustment of status application). Not suggesting I lie, I'm more just curious whether or not it will come up.

2 - I've read that other green card interview experiences just hover around questions validating the marriage, will the interview go over criminal record like this?

3 - If the incident does or needs to come up, what are the best, most likely, and worst case scenario regarding my application? If it doesn't come up, it seems like we still need to notify USCIS during our interview so that I don't end up in a fraud situation?

4 - If the most likely scenario is a rejection that's escalated to a deportation order. Should I just cancel my appointment and wait until something happens with our very outdated immigration system? If so, do they care why I cancel?

5 - The lawyer mentioned a waiver regarding the marijuana conviction for less than 30g. While that sounds like it could apply to me, reading about this waiver, and it sounded like an arduous process. Is it worth it? What are average costs? How long does it take? 

6 - More importantly, what happens if the waiver gets denied? It seems like I need to prove extreme hardship to spouse or something, which I'm not sure I can. The house is also now under my wife's name and she wouldn't be able to pay for the mortgage, and we have two pets now. Those don't feel "extreme" to me. 

7 - If I do cancel, would I have to start over if/when I resume my application or can I pick it back up where I left it?

 

Honestly I don't even care if the money I spent on the lawyer + filing fees goes down the drain, I just cannot be deported. My entire life, culture and identity is here in the US; on top of that, my home country (South Korea) will force me to conscript to the military which at my current stage in life is not a feasible option for me or my wife. I would have looked into going to another country (even had a PhD offer in New Zealand) but right now South Korea won't even issue me a passport because of conscription status. 

 

Thank you for reading again. 

 

 

 

 

 

Edited August 26, 2021 by dacapurgatory
Additional details, close parens

[HRQX 4,145]

16 minutes ago, dacapurgatory said:

permanent residency status adjustment

How did you last enter the US?

[dacapurgatory 2]

4 minutes ago, HRQX said:

How did you last enter the US?

With inspection ~20 years ago, thanks for reading and asking.

Edited August 26, 2021 by dacapurgatory
More details

[Boiler 43,434]

Did you declare your criminal history when applying for DACA?

[dacapurgatory 2]

Just now, Boiler said:

Did you declare your criminal history when applying for DACA?

I honestly don't remember but I don't recall deliberately lying, but I also don't recall sending supplemental information regarding the incident. Is there a way to check via the USCIS web?

[Boiler 43,434]

You could do a FOIA for your files.

[dacapurgatory 2]

2 minutes ago, Boiler said:

You could do a FOIA for your files.

Given the lack of time (early next week is my interview), do you mind if I ask what the purpose of knowing this is for?  

[Boiler 43,434]

They are going to be reviewing the whole of your immigration file, this may pop out if not declared previously.

[dacapurgatory 2]

30 minutes ago, Boiler said:

They are going to be reviewing the whole of your immigration file, this may pop out if not declared previously.

Got it, and yeah there's no time for me to file a FOIA, so another thing to look out on my end -.-

 

Have you had a chance to look at my questions? I'm primarily concerned with the overall picture of my situation, whether or not deportation is a possibility 

[Pinkrlion 2,607]

A misrepresentation with a drug conviction is serious, as you did not disclose it on paperwork, nor did you provide a copy of your charges and disposition with your application.  You have an opportunity during the interview to correct it.  FYI, all criminal issues are not expunged for immigration purposes.  

 

Secondly, if you did not do it for I-485, then you did not do it for DACA, so they have verification of intentional misrepresentation on 2 different applications.

 

If you need a waiver, you will need  your lawyer to address the waiver, it is a long process for drug convictions.  

[dacapurgatory 2]

11 hours ago, Pinkrlion said:

A misrepresentation with a drug conviction is serious, as you did not disclose it on paperwork, nor did you provide a copy of your charges and disposition with your application.  You have an opportunity during the interview to correct it.  FYI, all criminal issues are not expunged for immigration purposes.  

 

Secondly, if you did not do it for I-485, then you did not do it for DACA, so they have verification of intentional misrepresentation on 2 different applications.

 

If you need a waiver, you will need  your lawyer to address the waiver, it is a long process for drug convictions.  

 

Right the expunge thing my lawyer explained to me at our last meeting.. Until then, I honestly believed the incident/citation were dismissed/disappeared/never made it on paper. I filed the I-485 myself being undocumented and not having any money at the time (still am unsure if I disclosed it or not). Is ignorance a deal breaker?

 

Given the situation, are you able to make any predictions with regard to the interview? Is deportation proceedings likely? 

[Pinkrlion 2,607]

37 minutes ago, dacapurgatory said:

 

Right the expunge thing my lawyer explained to me at our last meeting.. Until then, I honestly believed the incident/citation were dismissed/disappeared/never made it on paper. I filed the I-485 myself being undocumented and not having any money at the time (still am unsure if I disclosed it or not). Is ignorance a deal breaker?

 

Given the situation, are you able to make any predictions with regard to the interview? Is deportation proceedings likely? 

Ignorance is not a deal breaker.  THe petition specifically asks about criminal history.  It is your responsibility to provide the information and the documents associated with the issue.  USCIS will make a determination of if it is an issue not you.  

 

They will explain your options at the interview.  You will not have a final decision made at the interview.  

[African Zealot 1,452]

59 minutes ago, dacapurgatory said:

Given the situation, are you able to make any predictions with regard to the interview? Is deportation proceedings likely? 

It depends. Two years ago I would say the probability was high because it appears you misrepresented yourself twice. A lenient interview officer and supervisor could accept that you were misinformed about expungement and it’s bearing on immigration proceedings. Unfortunately the way the questions are framed give little room for making an excuse. Have you EVER doesn’t make room for saying I thought expunged cases don’t matter.

 

We don’t engage in issuing probabilities and odds here however I’ll venture it’s a tossup. Good luck 

[dacapurgatory 2]

58 minutes ago, African Zealot said:

It depends. Two years ago I would say the probability was high because it appears you misrepresented yourself twice. A lenient interview officer and supervisor could accept that you were misinformed about expungement and it’s bearing on immigration proceedings. Unfortunately the way the questions are framed give little room for making an excuse. Have you EVER doesn’t make room for saying I thought expunged cases don’t matter.

 

We don’t engage in issuing probabilities and odds here however I’ll venture it’s a tossup. Good luck 

Thank you. Sigh. I don't remember any questions asking "Have you EVER used marijuana" rather more "convicted/arrested" and I honestly thought I wasn't since I was "caught" on campus. Everything I heard said it was a university-handled situation. Being undocumented, you kind of avoid any legal situations, so I took their word and showed up where I was supposed to and did what they told me to do, not really thinking about what it meant in terms of arrests/convictions/etc.

[carmel34 3,531]

15 hours ago, dacapurgatory said:

Will USCIS for sure find this incident in my background? Keep in mind when the incident occurred, it was filed under my nickname since I was completely undocumented at the time. Though the court records I obtained earlier this week show that I did put my legal name down (on top of putting my nickname down as an "alternate names used" in our adjustment of status application). Not suggesting I lie, I'm more just curious whether or not it will come up.

Chances are very high that they will find the prior conviction when they do a background check on you.  So the best advice is to come clean in the interview, before they even ask you about it.  In my opinion, being honest and correcting the omission of this important information will be more likely to lead to an approval of your AOS.  They will see an admission of making this mistake as a positive.  A lie on a federal immigration form, signed by you "under penalty of perjury" is a serious problem that you want to do everything you can to fix, and the best way to do that is to admit upfront that you did not include it.  Also take with you all of the court records to show how these cases were resolved.  Good luck with your interview!

Edited August 26, 2021 by carmel34