How to know if it is an Adam Walsh case?

[genj 0]

If:

- Has been more than 10 years ago.

- Has been classified as sexual assault with a result of a pre - trial intervention with 6 months of proof.

- Have been clean since then.

- It says dismissed in the criminal records.

- It was when I was 20 and this girl was 15, I did not know her age and thought was 18 due she had a fake ID.

The questions are:

- Is this an Adam Walsh case?

- What could I expect? I am waiting for my second notification.

- What could I do to overcome this problem if there is some RFE or similar?

* I answered NO in the petition due i HAVE NOT been convicted, I was just arrested and they clearely asked if there is any CONVICTION.

Edited August 20, 2011 by genj

[payxibka 10,045]

what part of it saying "CONVICTION" are you not understanding?

no conviction, no issue

[payxibka 10,045]

I am sorry to ask again about this but the thread I wrote is not there anymore and I could not read the answers well.

I also wanted to know if there is a similar case, I know it´s not convicted in gereral terms but sometimes Immigrations has other way to see things, and due this is on my criminal records I just want to make sure that there will not be any issue

Immigration may have there own terms... but in this case there terms are CONVICTIONS...

[pushbrk 12,882]

I am sorry to ask again about this but the thread I wrote is not there anymore and I could not read the answers well.

I also wanted to know if there is a similar case, I know it´s not convicted in gereral terms but sometimes Immigrations has other way to see things, and due this is on my criminal records I just want to make sure that there will not be any issue

You really haven't provided enough information to be clear. If you were arrested and the case was dismissed is the WHOLE legal story, then no problem. Sometimes a finding of "dismissed" follows a guilty plea and some form of punishment. If that's more like what happened, then it's another issue.

[genj 0]

You really haven't provided enough information to be clear. If you were arrested and the case was dismissed is the WHOLE legal story, then no problem. Sometimes a finding of "dismissed" follows a guilty plea and some form of punishment. If that's more like what happened, then it's another issue.

I did not have to answer a plea but I did have to do some community service in my local librery and when the police came to speak with me I was honest with them about me dating this girl since I did not know how old she was I did not realize it was a problem, she aparently was also dating another gentleman from work that I did not know about until after, so the prosecutor and the police were sympathetic to my situation and nobody objected to me, they reduce the charge and gave me pre trial intervention, but my concern is that since I was honest with the police when I talked about the situation immigration could see that as an admission of guilt.

[pushbrk 12,882]

I did not have to answer a plea but I did have to do some community service in my local librery and when the police came to speak with me I was honest with them about me dating this girl since I did not know how old she was I did not realize it was a problem, she aparently was also dating another gentleman from work that I did not know about until after, so the prosecutor and the police were sympathetic to my situation and nobody objected to me, they reduce the charge and gave me pre trial intervention, but my concern is that since I was honest with the police when I talked about the situation immigration could see that as an admission of guilt.

You did community service for a "reduced charge". What was the "charge"? Either way, I think you need a "legal opinion" on whether you have an AWA issue.

Pre Trial Intervention and how it works with regard to a criminal record varies by State. I don't know if USCIS can see this record.

When you speak to a lawyer, don't start out obscuring the truth like you did here. You were not "just arrested" and "not convicted". There was more to it. Don't make the lawyer's job like pulling teeth. Make full disclosure to get competent reliable advise.

Edited August 20, 2011 by pushbrk

[TheOptimist 22]

You did community service for a "reduced charge". What was the "charge"? Either way, I think you need a "legal opinion" on whether you have an AWA issue.

Pre Trial Intervention and how it works with regard to a criminal record varies by State. I don't know if USCIS can see this record.

When you speak to a lawyer, don't start out obscuring the truth like you did here. You were not "just arrested" and "not convicted". There was more to it. Don't make the lawyer's job like pulling teeth. Make full disclosure to get competent reliable advise.

Hi Pushbrk,

I first have to apologize as my fiance has opened this thread seeking to get some answers.

She made me aware of this and I am now responding as my self.

It certainly was not her intention to be misleading and apologize if it is seen that way.

In any case, I would think that since it was clearly stated that I received pre-trial intervention, that those who know about these matters would understand that I was in fact arrested and charged (You don't get to the point of being offered PTI unless that is the case).

I am very concerned about this and your thoughts on me seeking legal council is good advice and much appreciated.

It kills me that I could be seen by immigration as some sort of sex criminal as I have NEVER done anything like that before and would NEVER put myself in that situation again. It was a BIG wakeup call.

At the time, all parties involved (prosecutor, Judge, etc.) agreed that it would not be in the interest of justice to have me labeled as a sex criminal given the conditions were so murky and it was clear that my intent was not predatory.

Don't get me wrong, I am not looking for sympathy here, She was simply looking to understand what we can do to be together.

There are many here with opinions one way or the other regarding this issue. And I think that the Adam Walsh act is a good thing.

I just think that in a country like ours where you are presumed innocent, and a case is (and this is a legal technical term) "dismissed without prejudice", that this should extend to ALL areas of government. My liberties as a citizen have not been impacted in any other way as I have been successful in life, maintained my executive title and position with my organization, and have worked with varying degrees of security clearance on a number of engagements for work.

I am supremely confident that if in the worst case they issue a denial that I will be successful in seeking a waiver but it is all very frustrating.

This forum has proved to be an enormously beneficial resource in providing good insights and interesting perspectives on how to handle a great number of potential risks and obstacles for those seeking marriage with foreign nationals.

I hope that this will not be a concern and that we can be together as our emotional investment has been immeasurable.

I love her very much and it would more than break my heart if this matter has the potential to ruin what I see as a once in a lifetime shot at happiness with the most amazing women on earth.

Please forgive us if it is perceived that we were not being up front.

All of your insight is greatly appreciated.

Best of luck to all of you!

[pushbrk 12,882]

Hi Pushbrk,

I first have to apologize as my fiance has opened this thread seeking to get some answers.

She made me aware of this and I am now responding as my self.

It certainly was not her intention to be misleading and apologize if it is seen that way.

In any case, I would think that since it was clearly stated that I received pre-trial intervention, that those who know about these matters would understand that I was in fact arrested and charged (You don't get to the point of being offered PTI unless that is the case).

I am very concerned about this and your thoughts on me seeking legal council is good advice and much appreciated.

It kills me that I could be seen by immigration as some sort of sex criminal as I have NEVER done anything like that before and would NEVER put myself in that situation again. It was a BIG wakeup call.

At the time, all parties involved (prosecutor, Judge, etc.) agreed that it would not be in the interest of justice to have me labeled as a sex criminal given the conditions were so murky and it was clear that my intent was not predatory.

Don't get me wrong, I am not looking for sympathy here, She was simply looking to understand what we can do to be together.

There are many here with opinions one way or the other regarding this issue. And I think that the Adam Walsh act is a good thing.

I just think that in a country like ours where you are presumed innocent, and a case is (and this is a legal technical term) "dismissed without prejudice", that this should extend to ALL areas of government. My liberties as a citizen have not been impacted in any other way as I have been successful in life, maintained my executive title and position with my organization, and have worked with varying degrees of security clearance on a number of engagements for work.

I am supremely confident that if in the worst case they issue a denial that I will be successful in seeking a waiver but it is all very frustrating.

This forum has proved to be an enormously beneficial resource in providing good insights and interesting perspectives on how to handle a great number of potential risks and obstacles for those seeking marriage with foreign nationals.

I hope that this will not be a concern and that we can be together as our emotional investment has been immeasurable.

I love her very much and it would more than break my heart if this matter has the potential to ruin what I see as a once in a lifetime shot at happiness with the most amazing women on earth.

Please forgive us if it is perceived that we were not being up front.

All of your insight is greatly appreciated.

Best of luck to all of you!

Thanks for the explanation. I think a quick consultation with a criminal defense attorney in your own State, (perhaps the one from the actual case in question) let you know whether to be concerned. Given your explanation, I would predict the worst case is a delay followed by an eventually approved petition. More likely, it's a non-issue.

[TheOptimist 22]

Thank you for your response.

I do hope that your sentiment is viewed similarly by the powers that be..

There was no requirement for me to do any type of counseling and although i did perform community service, the requirement for the Library administration was that it could not be a violent or drug related crime.

The administration after speaking with me and understanding the nature of the case was good with me performing my community services activities there at the library.

It was so long ago, and my attorney has since retired and is not in great health. He did however state that I did NOT plead guilty and that if the prosecutor felt that I was a real risk, that he would have made me plea, and would have made mandatory that I seek some sort of help.

The thing that concerns me the most is my candor with the police in this situation. My initial reaction was concern for the girl and was willing to provide any information to help (not realizing that the end result would be a charge).

This is an embarrassing topic to discuss honestly and I have not even considered this matter in my life since it occurred. I have been through a number of background checks and while the arrest and PTI show up (When performing an SBI lookup with the state police), they have never been an issue as the record shows as a dismissed case.

As well, none of these matters show up on any internet searches, even with my SS# (although i did find someone using my SS# somewhere out in the mid west). Odd.

It also seems that as a US citizen, that the stringent analysis and definition pertaining to the term "conviction" is less than that of a foreign national. This I cannot be certain of until discussing with a good immigration attorney.

I do hope that you are correct.

Best,

The Optimist

[TheOptimist 22]

Hey Guys,

I have consulted with an attorney (35 Years in the game)

She has stated the following:

=================================================================================================================================================

I have reviewed the NJ state court website on PTI and the CIS Memorandum on the AWA as it pertains to I-129 petitions.

It does not appear that you have a conviction according to the PTI information I have read.

In addition, the Memorandum from CIS clearly says you are prohibited from filing a petition if you have a "conviction".

http://www.uscis.gov/USCIS/Laws/Memoranda/2011/April/supp-guidance-adam-walsh-actpdf.pdf

Accordingly, I am of the of the opinion that you were not required to disclose your arrest.

In addition, it was not a conviction so you are nor prohibited from filing the petition. You are not required to disclose arrests.

However, even though you have no record of conviction, the arrest may appear and you may be required to provide a certified copy of the court disposition of the case.

==============================================================================================================================================

Definitely makes me feel a bit better.

I hope that this information can be of assistance to others. Please let me know your thoughts if you feel that this information is erroneous.

[VanessaTony 3,567]

Hey Guys,

I have consulted with an attorney (35 Years in the game)

She has stated the following:

=================================================================================================================================================

I have reviewed the NJ state court website on PTI and the CIS Memorandum on the AWA as it pertains to I-129 petitions.

It does not appear that you have a conviction according to the PTI information I have read.

In addition, the Memorandum from CIS clearly says you are prohibited from filing a petition if you have a "conviction".

http://www.uscis.gov/USCIS/Laws/Memoranda/2011/April/supp-guidance-adam-walsh-actpdf.pdf

Accordingly, I am of the of the opinion that you were not required to disclose your arrest.

In addition, it was not a conviction so you are nor prohibited from filing the petition. You are not required to disclose arrests.

However, even though you have no record of conviction, the arrest may appear and you may be required to provide a certified copy of the court disposition of the case.

==============================================================================================================================================

Definitely makes me feel a bit better.

I hope that this information can be of assistance to others. Please let me know your thoughts if you feel that this information is erroneous.

You MUST disclose the arrest. The lawyer is wrong about that. If asked if you were arrested then you must admit it. You will also most DEFINITELY need court (and arrest) records so you may as well get started on that.

Also, it's important that you know that "dismissed without prejudice" isn't a good thing. It's not bad, but it means that though the case is dismissed, they have the ability to re-open the case. it could just mean they didn't have enough evidence to convict you right now, but are leaving that door just in case. USCIS has been known to use the "without prejudice" as a sign you are NOT innocent. Just an FYI. Nothing stopping you from filing the petition, but be aware you might have a question or two to answer either at the interview, or come AOS time.

Edited August 20, 2011 by Vanessa&Tony

[Kathryn41 3,205]

Several posts disrupting this thread have been removed. Please confine your discussions to the original topic and do not make personal judgments or attacks against other members.

if you find someone's posting style too blunt or abrupt, PM them privately or report the post to the Moderation team - do not derail the thread with a back and forth bickering - which is even more rude to the OP.

That being said, there are many different posting styles for many different people. I would suggest that everyone try to be civil and courteous in their posts, give others the benefit of the doubt, and if someone is obviously rude, then either ignore their rudeness or report them to a moderator.

Edited August 20, 2011 by Kathryn41

[Kathryn41 3,205]

Acceptable parts of the removed posts returned to the thread below.

I am sorry to ask again about this but the thread I wrote is not there anymore and I could not read the answers well.

I also wanted to know if there is a similar case, I know it´s not convicted in gereral terms but sometimes Immigrations has other way to see things, and due this is on my criminal records I just want to make sure that there will not be any issue

[TheOptimist 22]

Thanks for the Post.

Perhaps I should clarify that on my arrest record, it does not say dismissed without prejudice. It simply states dismissed.

I was quoting information that I found relating to matters such as these when using that term.

The other thing that I commonly see on this board is this notion that you are REQUIRED to disclose any and all arrests.

This is simply erroneous.

This is the specific language as read on the I129-F:

2:Have you ever been convicted by a court of law (civil or criminal) or court martialed by a military tribunal for any of the following crimes:

Domestic violence, sexual assault. child abuse and neglect, dating violence, elder abuse or stalking. (Please refer to page 3 of

the instructions for the full definition of the term "domestic violence.)

Homicide, murder, manslaughter, rape, abusive sexual contact, sexual exploitation, incest, torture, trafficking, espionage,holding hostage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment or an attempt to commit any of these crimes, or

Three or more convictions for crimes relating to a controlled substance or alcohol not arising from a single act.

Yes No

Answering this question is required even if your records were sealed or otherwise cleared or if anyone, including a judge, law enforcement officer, or attorney, told you that you no longer have a record. Using a separate sheet(s) of paper, attach information relating to the conviction(s), such as crime involved, date of conviction and sentence.

It also goes on to state:

Moreover, I understand that this petition, including any criminal conviction information that I am required to provide with this petition, as well as any related criminal background information pertaining to me that U.S. Citizenship and Immigration Services may discover independently in adjudicating this petition will be disclosed to the beneficiary of this petition.

There is nothing there that asks if you are arrested. Furthermore, it specifies that you are required to provide details of any criminal background RELATED to a conviction.

I read this question NO less than 20 times before answering.

So the question here is: What constitutes a conviction from an immigration perspective?

It is well known that to enter a plea in order to receive pre-trial intervention would be considered an admission of guilt. This is not the case with me.

Refer to the following:

Conviction Under Immigration Law: SIS, SES and Pre-trial diversion

Pretrial Diversion

Pretrial diversion or pretrial intervention that does not require a formal plea before the court, and results in the ultimate dismissal of the charges, is effective in avoiding a conviction for immigration purposes. Under pretrial diversion or intervention schemes, a client does not enter a plea but is placed under some form of probation-type program—while criminal charges stay in abeyance. Upon successful completion of the program, the charges are dismissed.

THIS IS THE IMPORTANT PART:

Because the client makes no formal admission of guilt on the record under pretrial diversion or intervention programs, the first prong of Section 101(a) (48) (A) of the INA is not met.

This is the law to which they refer:

The Immigration and Nationality Act (INA), in one of its rarest attempts at clarity, defines the term “conviction” as follows (INA §101(a)(48):

(A) The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—

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

(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.

There are two instances in which a criminal disposition constitutes a conviction for immigration purposes. One is the obvious case in which a formal judgment of guilt is rendered by a court. The second instance applies to what, in criminal law parlance, is called “deferred adjudication,” whereby the final or formal judgment is withheld, postponed, or "deferred" until the end of a probation period. If adjudication of guilt is withheld, the law requires two elements to be fulfilled to constitute conviction: (1) a judge or jury must find the foreign national guilty or the foreign national pleads guilty, or enters a no-contest (nolo contender) plea, or admits sufficient facts to warrant a finding of guilt; and (2) the judge ordered some form of punishment, penalty or restraint on the person’s liberty.

The legislative history of the definition of conviction shows that Congress intentionally broadened the scope of what constitutes conviction in order to include “deferred adjudications.”

As a result, the following instances have been held to be convictions for immigration purposes:

Probation sentences

Deferred sentences

Expunged convictions

Pretrial interventions such as conditional discharge if accompanied by a guilty plea or plea of no-contest

It is important to remember also that the definition requires some sort of penalty or punishment to be imposed by the court for “deferred adjudications” to constitute conviction. Punishment may include any one of the following:

A sentence of imprisonment

Fine

Imposition of costs and surcharges in sentencing

Probation is also punishment for immigration purposes

This does not mean that I do not have concerns about this. But simply that I do not fall into the category of one who has plead to the crime.

Please provide any other information that you may feel is useful as that is why I am here.

Thanks..

[TheOptimist 22]

Hi Vanessa,

I do agree with you however that I had better begin preparing the appropriate information to send over.

Could very well be that they will ask for that. Had I known that these matters would be so complicated, I would have simply disclosed it to begin with.

We are making the presumption that they will DEFINITLEY do something about that.

But I do want to thank you for your post. You have given me more food for thought. Even if I HATE your answer!

Better to be armed with the truth and be prepared than get run over while pretending the train isn't coming.

Best