Overstayed because falsely accused, have to wait for court date

[Unluckyguy 2]

All this happened after OPT was finished.

Changing status would have been the obvious answer but probably too late for that now.

Or leaving and coming back on a tourist visa for whatever appearances you were required to attend.

All too late now of course.

No. On the night of the first incident I was still in status. I was at about 70 accumulated unemployed days. Then I got arrested and had to wait for the court dates. 90-day speedy trial. Which turned out to be more like 100 days. Then, when the case got dismissed, a week later a get falsely arrested by my ex again. So I had to stay again. The 90 day speedy trial for the second case only started in January because the DA thought he was ready and then understood my ex had lied. Also because the case got sent to Supreme Court as there was both a Family Court case and a Criminal Court case.

I didn't have the money to have an attorney so they gave me a Public Defender each time. Both times my attorneys NEVER told me about changing status. I have no idea what that means actually. Each attorneys told me to stay in the US and wait for the next court date which I did. The second attorney however did say that there was nothing I could do since I was already beyond the 90 days of accumulated unemployment. Which is true. I stayed because I thought that any day they could contact me and tell me the DA was ready and that there was going to be a trial.

If I had left the country, I would never have been able to come back in, unless I had left the country in the next 15-20 days after the first incident as I only had that many days left on my OPT. But I had no idea I could leave the country. I thought that since there was a court case against me that I was to stay in the US. I was doing interviews, but didn't get the jobs, all because they didn't realize I wasn't a US Citizen. I was planning on leaving after the case got dismissed in beg. October but I wanted to give my gf another chance. I was too nice, I forgave her and wanted her to know I did. I somehow still believed w could be together...

What is horrible is that I was always taking way too much care of her, did everything for her even her HW and some papers even though I was working. I always made her food, massaged her, took her out (I always paid everything), bought her clothes, etc... She never did any of those things to me (apart from the massage). Yet, she would go crazy about once a week/10 days. She had gotten better in the last month and a half, only going crazy once every two weeks. But then she exploded on that night. I still have no explanation apart from the fact that she is bipolar and that she took medication for a yeast infection about 15min before which apparently was burning her down there. I absolutely NEVER attacked her in ANY manner in the past, never. I loved her too much. Now when I look back at it I really wonder what I did to deserve all this...

[Villanelle 4,122]

First nobody here is saying (atleast I dont think they are) that you are doing the wrong thing by trying to fix this situation with court. What they are telling you is that USCIS does not have any provisions or waivers for this.

Your overstay for this situation is not going to be forgiven. What they are saying is you should have consulted with an immigration attorney and said hey this is going to give me overstay that is going to result in a ban. What can I do? Can this ban be waived? They wouldve told you no. They wouldve helped you find a resolution with the courts before the overstay accumulated to the point of a ban. Hindsight is always 20/20 though so theres nothing you can do now.

I really dont understand your comments about " I NEVER breach ANY Order of Protection." Exactly what are you being charged for in the second criminal case that the DA is never ready for then? According to your story-

You and she had a 'fight' you were both arrested, it was dismissed. You went home. Emailed her. She didnt answer. A week later you get an order of protection passed off from your landlord around 6pm. They claim it was handed to you at 10am. Two days later you were arrested because that day you emailed her at 2pm. From your post "They said I breached the Order of Protection."

That is what you are being charged with in the second case. (violating a temp order of protection. Yes, you most likely will be able to prove it false. But you are still being charged with it. In court, the DA has a set number of times they can continue the case until they are 'ready'. Its frustrating, but they are allowed to do it. I know it feels like they will never be 'ready', but they can only pull that so many times. Eventually it must come up on the docket.)

------

Re- your overstay. When you first posed this question you did so in a creative way. Either Im a little dense or I misunderstood or you were looking for a loophole or a bit of both.

Instead of coming right out and giving the facts, you kind of presented in the way that you wanted USCIS to see it, rather then the truth.

Meaning the facts are- you had OPT from Jan-Jan. You only worked from Jan-Jun. You wanted to know if you could pretend you actually worked from Jan-Jan and get away with it and what the procedures were- like where and what does USCIS check- how likely is it that they would call/contact the company, cause its small, etc- because that would change your amount of overstay and youd have no ban.

Instead of coming right out and saying that though, you kind of skirted around it though and said, I think the company might have left me in the system, I am a valid OPT until Jan. Im really not sure if youre still considering going down that route still or not.

I really do have to stress to you not to. While it may seem like something you can possibly get away with- you wont.

Lying and misrepresentations will cause permanent bans on future visa applications. There are no waivers for that. Records are not going to disappear.

With all of that said. If you stopped working in June, your 90 days of unemployment would have been up in Sept. The incident with your girl happened in Oct. It wouldve been while you were in overstay. Does it matter? No. But you mentioned in a post above you were in status when the initial arrest happened and Im not entirely sure you were because like I said, if you stopped working in June- 90 days= Sept, arrest in Oct is out of status.

--

If youd like to discuss exactly what is a battered persons waiver we can do that, but because you said- you were kind of kidding about being a battered man. Im going to assume youre not going to attempt to pursue that waiver. Which is probably best because like I and others have said, you most likely would not qualify for it.

----

Re- Order of protection. Of course having an OP against you is a bad thing. It means you are a dangerous person. If you try to obtain a visa that requires you to be of good moral character that OP is going to be held against you.

I already posted a link for what happens in the OP hearing. Basically both sides have an opportunity to tell their stories. You can choose to speak or not. You do not have to say anything incriminating. The victim has an opportunity to tell about the incident that occurred and why they are fearful of the person they wish to be protected from. The person who is going to be restricted has an opportunity to describe the same incident and explain why they are not a threat. The judge will then make a decision based on the testimony available and any other evidence. Pictures, police reports, etc.

They tend to err on the side of caution. No one wants to be the judge that did not issue the OP and find out the victim was then killed or injured because the alleged abuser attacked the victim again.

As Vanessa mentioned perhaps demonstrating that you are not a resident and will be leaving the country so no OP is needed, or demonstrating the woman is mentally unstable and there was no 'attack' in the first incident. Statements from the witnesses in the first incident that state she attacked you primarily and you simply defended yourself could help get it thrown out.

If it does get issued, yes. This is something that is going to be a permanent mark on future visa and GC applications. There are various assorted places (depending on the form) where you need to disclose domestic violence incidents and they will require court papers about the dispositions and status so they can see what happened, if you are a threat etc and evaluate your moral character.

Its not something you can pretend like didnt happen or think they will never know about or you can omit because it was in a family court- so how will they know. You cant omit it. Thats lying (lying = misrepresentation = inadmissible) And when you do tell them, it will be - oh my an order of protection, something bad went on here. He hurt this woman, she is scared of him. A judge found it necessary to protect this woman because he is a threat, do we really want to let him back in to the US?

Your lawyer is going to advise you to get the easiest resolution. It may not be the best long term resolution however. The quick and easiest resolution is to accept the OP with out admitting any wrong doing. It will place the OP in effect for a year or 2 maybe and then it will go away. From the lawyers POV it wont effect you because youre not living here, so you wont violate it,not intentionally, not unintentionally. You didnt admit anything in court, so its not like they can charge you with anything additional- its not like you said in open court- she hit me first then I hit her and now theyll charge you for hitting her. It doesnt matter that you cant purchase firearms with an OP, because youre not going to be here. It really doesnt effect you at all since youre leaving.

But thats the small picture. Your lawyers not an immigration lawyer. Your big picture includes immigration and in the immigration picture this OP matters. You should really go back, if you are using him to fight it and discuss with him the importance of not having it issued and see what strategy he can offer you. Perhaps he has something more to offer then what I listed above. You need to stress that for your situation it matters that it is not issued. It will effect your future immigration, so it is imperative it is not issued.

If it is, well, then you'll just have to deal with it. Gather and keep as many papers as you can. Just like you made the best case you could to try to get it not issued, when the time comes for a new visa, youd have to present a similar case to USCIS showing yes- an OP was granted but look Im really not a threat and heres all the reasons why. The judge simply chose to err on the side of caution and issue it. But this shows shes crazy and this shows she attacked me first, and this shows Im not a threat etc etc. Hopefully it will be enough to overcome it an prove your moral character is in good standing.

[BaBamSam 239]

Capri just gave a very excellent and thoughtful response. I hope that has helped you, UnluckyGuy. Again, everyone here empathizes with you and this horrible situation.

[VanessaTony 3,567]

Everyone here sympathizes, for sure, but USCIS won't. Your attorney doesn't know anything about immigration obviously. In hindsight you should have seen an immigration attorney. In hindsight you should have left the country AFTER getting some sort of documentation stating you were permitted back in to attend court dates (and only court dates).

There are many things you SHOULD have done. It's all moot now.

Long story short - YES the overstay is going to be held against you. The circumstances surrounding your overstay aren't relevant. You won't get a waiver approved because there's no waiver for the ban for a non-immigrant visa. The overstay pretty much assures you'll never get another visa to the US.

Your overstay IS your fault. It's not her fault. She didn't make you stay. The case made you FEEL like you had to stay. You THOUGHT you had to stay. You didn't look into whether or not you did. You assumed you did. So now YOU overstayed, for the right reasons so you thought, but you will pay the price.

[Boiler 45,525]

OP is like D/S

And there is the d3 waiver for NIV.

[Unluckyguy 2]

I'm not going to go into a long explanation of what you were most likely given at court but basically they were notices of hearing. Your attorney could have entered an appearance for you. A lot of people think a summons means they HAVE to attend court. It depend a lot on the type of summons, same with Notices of Hearing.

Did you ask your attorney to enter an appearance for you? did you mention to the judge that you needed to leave the country?

Also, it's not their job to tell you what you can do. It's your job to know about your status and what avenues are open to you, or hire an attorney to find out.

Assume that they reported you stopped working there, as they were supposed to. Hoping or assuming otherwise is only damaging to you.

I told my Public Defender right before the arraignment that I wasn't a US citizen. That I was close to getting over the limit. My Public defender told me to stay until the next court, until the case was dismissed. I had never been arrested in my entire life, I had NEVER had to deal with the police ever in my life. Isn't it my attorney's job to tell me what I should be doing!?

Yes, the judge told me to be there at the next court date, my attorney too. I never knew I could have my lawyer represent me and me not being there. I clearly remember my attorney telling me to stay and be present because if NOT the judge would convict me.

[Unluckyguy 2]

Everyone here sympathizes, for sure, but USCIS won't. Your attorney doesn't know anything about immigration obviously. In hindsight you should have seen an immigration attorney. In hindsight you should have left the country AFTER getting some sort of documentation stating you were permitted back in to attend court dates (and only court dates).

There are many things you SHOULD have done. It's all moot now.

Long story short - YES the overstay is going to be held against you. The circumstances surrounding your overstay aren't relevant. You won't get a waiver approved because there's no waiver for the ban for a non-immigrant visa. The overstay pretty much assures you'll never get another visa to the US.

Your overstay IS your fault. It's not her fault. She didn't make you stay. The case made you FEEL like you had to stay. You THOUGHT you had to stay. You didn't look into whether or not you did. You assumed you did. So now YOU overstayed, for the right reasons so you thought, but you will pay the price.

This can't be right. Are you sure of what you are saying or is this only your feeling?

What do you mean "The overstay pretty much assures you'll never get another visa to the US"?? Isn't it a 3-year ban? I can then apply for a visa after that. What's the point of the ban then?

[Unluckyguy 2]

OP is like D/S

And there is the d3 waiver for NIV.

?

Can you explain please? This sounds interesting.

[Villanelle 4,122]

?

Can you explain please? This sounds interesting.

What hes referring to you can find out more information here-

http://www.apsanlaw.com/law-151.THE-212d3-WAIVER--Violators-of-US-laws-may-still-be-eligible-for-a-Visa.html

Its basically an expansion of the last paragraph of the last post I wrote. Where I talked about if the OP is granted and you are labeled a 'threat' and considered inadmissible because of it, you can or rather would need to submit all that stuff I listed above, things showing youre not and youre a good person deserving of a visa along with the waiver to possibly obtain a H1B visa in the future.

Basically you have to show, the risk to society if your admitted, the seriousness of the crime or reason for your inadmissibility and your reason for coming to the US.

The waiver may or may not be approved.

[Unluckyguy 2]

First nobody here is saying (atleast I dont think they are) that you are doing the wrong thing by trying to fix this situation with court. What they are telling you is that USCIS does not have any provisions or waivers for this.

Your overstay for this situation is not going to be forgiven. What they are saying is you should have consulted with an immigration attorney and said hey this is going to give me overstay that is going to result in a ban. What can I do? Can this ban be waived? They wouldve told you no. They wouldve helped you find a resolution with the courts before the overstay accumulated to the point of a ban. Hindsight is always 20/20 though so theres nothing you can do now.

I had no idea, I thought I couldn't do any of this, that I already had a Public Defender defending me. I listened to and did everything the PD told me to do. I ONLY stayed because of this. I didn't work illegally or anything, I've been surviving on my father's inheritance. There was no incentive for me to stay.

I really don't understand your comments about " I NEVER breach ANY Order of Protection." Exactly what are you being charged for in the second criminal case that the DA is never ready for then? According to your story-

You and she had a 'fight' you were both arrested, it was dismissed. You went home. Emailed her. She didn't answer. A week later you get an order of protection passed off from your landlord around 6pm. They claim it was handed to you at 10am. Two days later you were arrested because that day you emailed her at 2pm. From your post "They said I breached the Order of Protection."

OK, like I said in the very first post, the second time I got falsely arrested for "breaching the Order of Protection" which I have not and I have both my landlord and my neighbor who can testify to this, since they were there when I got the OP after 6pm. The fact that my ex was present at 6pm with the person who was supposed to hand the papers clearly shows that my ex set up everything. Like I said that has been resolved on the first court date with the judge understanding immediately that something was wrong. So, the judge ordered to serve me with new papers. But anyways, what happened is that when I met my second Public Defender, right before the arraignment (for having been falsely arrested the 2nd time)the Public Defender told me I wasn't only arrested for that but for 3,4 other lies my ex had invented. claiming I had stalked her and even attacked her on a street I've never been, and obviously I never did that. I hadn't seen her since the very first incident. The whole thing was crazy. I can prove where I was and with whom I was on that day. They are ready to testify to that too. So this is what the criminal case is for. But like i said the DA told my attorney that he can tell my ex lied. I thought that was crazy, I thought that the DA should then drop all the charges, but apparently the DA can do whatever he wants... He prefers to drag the case so that he doesn't "lose" in a way. CRAZY.

That is what you are being charged with in the second case. (violating a temp order of protection. Yes, you most likely will be able to prove it false. But you are still being charged with it. In court, the DA has a set number of times they can continue the case until they are 'ready'. Its frustrating, but they are allowed to do it. I know it feels like they will never be 'ready', but they can only pull that so many times. Eventually it must come up on the docket.)

------

Re- your overstay. When you first posed this question you did so in a creative way. Either Im a little dense or I misunderstood or you were looking for a loophole or a bit of both.

Instead of coming right out and giving the facts, you kind of presented in the way that you wanted USCIS to see it, rather then the truth.

Meaning the facts are- you had OPT from Jan-Jan. You only worked from Jan-Jun. You wanted to know if you could pretend you actually worked from Jan-Jan and get away with it and what the procedures were- like where and what does USCIS check- how likely is it that they would call/contact the company, cause its small, etc- because that would change your amount of overstay and youd have no ban.

Instead of coming right out and saying that though, you kind of skirted around it though and said, I think the company might have left me in the system, I am a valid OPT until Jan. Im really not sure if youre still considering going down that route still or not.

I really do have to stress to you not to. While it may seem like something you can possibly get away with- you wont.

Lying and misrepresentations will cause permanent bans on future visa applications. There are no waivers for that. Records are not going to disappear.

I was asking those questions to see if it was possible for me to do so and get away with it. Now, I see that isn't an option.

With all of that said. If you stopped working in June, your 90 days of unemployment would have been up in Sept. The incident with your girl happened in Oct. It wouldve been while you were in overstay. Does it matter? No. But you mentioned in a post above you were in status when the initial arrest happened and Im not entirely sure you were because like I said, if you stopped working in June- 90 days= Sept, arrest in Oct is out of status.

But the final court date of the first incident, when the first case got dismissed, WAS in the beg of Oct. Like I said, I did what I was told to do and that was to stay until the court date. I did. 5 days later I get an OP, petition, and a Family Court summon (From my landlord's hands) telling me to go to court 3 weeks from then. 2 days later I get falsely arrested for supposedly "breaching the OP" which I didn't. That is when I learned about the other horrible lies my ex put against me. So, I stayed in the US since too, even though I was planning on leaving for Europe in mid-end October.

ALL THIS and I have NEVER been heard in court. NEVER a trial. I got falsely arrested TWICE, TWICE I got put in jail for NO REASON, NO PROOF, nothing. TWO Court cases DISMISSED that will stay FOR EVER on my CRIMINAL RECORD even though I have NEVER been ALLOWED to defend myself at a trial! HOW CAN THIS BE!?!? I can tell that if I was indeed guilty, and that I did do these things to my ex I would have left the country straight away. But, I am completely innocent, everything is invented. I can prove all of it. BUT I can't since I have to wait for the DA to be ready! And the DA will never be ready! Therefore the case will be dismissed and will show on my criminal record even though I never did ANYTHING. And now you are telling me that the fact that I stayed, to make sure that I was found innocent after a trial that NEVER happened, that I am going to be punished for having OVERSTAYED my VISA in the process! THIS IS CRAZY.

--

If youd like to discuss exactly what is a battered persons waiver we can do that, but because you said- you were kind of kidding about being a battered man. Im going to assume youre not going to attempt to pursue that waiver. Which is probably best because like I and others have said, you most likely would not qualify for it.

----

Re- Order of protection. Of course having an OP against you is a bad thing. It means you are a dangerous person. If you try to obtain a visa that requires you to be of good moral character that OP is going to be held against you.

I already posted a link for what happens in the OP hearing. Basically both sides have an opportunity to tell their stories. You can choose to speak or not. You do not have to say anything incriminating. The victim has an opportunity to tell about the incident that occurred and why they are fearful of the person they wish to be protected from. The person who is going to be restricted has an opportunity to describe the same incident and explain why they are not a threat. The judge will then make a decision based on the testimony available and any other evidence. Pictures, police reports, etc.

THIS IS great so if there is a trial, the Judge will FINALLY listen to me? Great. I want a trial then. It will be very easy since I wasn't even in the area. I have both material evidence and witnesses who are ready to testify. I need to accept the papers first though since I changed addresses they never knew where I lived so they never could serve me the papers.

How long will it take though from the time I accept the papers to the actual trial date? Will it take 1 or 2 months, or it should be pretty quick from there (i.e.: a week or two?). Because we are nearing the 1 year limit in July and I don't want to go over that at all. I want to leave now if I could.

They tend to err on the side of caution. No one wants to be the judge that did not issue the OP and find out the victim was then killed or injured because the alleged abuser attacked the victim again.

As Vanessa mentioned perhaps demonstrating that you are not a resident and will be leaving the country so no OP is needed, or demonstrating the woman is mentally unstable and there was no 'attack' in the first incident. Statements from the witnesses in the first incident that state she attacked you primarily and you simply defended yourself could help get it thrown out.

EXACTLY! Thank you! I have that. One of the witnesses of the first incident (who is also the neighbor who my ex asked if I was home when I got the OP served at 6pm in early Oct.) told me that he always saw me defending myself. That he had no idea why the police took me that day. He told them that it looked like I was blocking her in some way, but it was to control her and to try to calm her down. He told me he never told the cops I attacked her in any way. The problem is that my ex who knew she was going to be arrested claimed I attacked her and so the cops apparently had to arrest me too! Crazy.

This witness is still here and IS ready to testify.

If it does get issued, yes. This is something that is going to be a permanent mark on future visa and GC applications. There are various assorted places (depending on the form) where you need to disclose domestic violence incidents and they will require court papers about the dispositions and status so they can see what happened, if you are a threat etc and evaluate your moral character.

Its not something you can pretend like didnt happen or think they will never know about or you can omit because it was in a family court- so how will they know. You cant omit it. Thats lying (lying = misrepresentation = inadmissible) And when you do tell them, it will be - oh my an order of protection, something bad went on here. He hurt this woman, she is scared of him. A judge found it necessary to protect this woman because he is a threat, do we really want to let him back in to the US?

WOW, my attorney told me that accepting the OP without admitting WOULDN'T HAVE ANY EFFECT ON MY FUTURE IMMIGRATION APPLICATIONS. I have to change attorneys then. Clearly my attorney isn't trying to help me.

Your lawyer is going to advise you to get the easiest resolution. It may not be the best long term resolution however. The quick and easiest resolution is to accept the OP with out admitting any wrong doing. It will place the OP in effect for a year or 2 maybe and then it will go away. From the lawyers POV it wont effect you because youre not living here, so you wont violate it,not intentionally, not unintentionally. You didnt admit anything in court, so its not like they can charge you with anything additional- its not like you said in open court- she hit me first then I hit her and now theyll charge you for hitting her. It doesnt matter that you cant purchase firearms with an OP, because youre not going to be here. It really doesnt effect you at all since youre leaving.

But thats the small picture. Your lawyers not an immigration lawyer. Your big picture includes immigration and in the immigration picture this OP matters. You should really go back, if you are using him to fight it and discuss with him the importance of not having it issued and see what strategy he can offer you. Perhaps he has something more to offer then what I listed above. You need to stress that for your situation it matters that it is not issued. It will effect your future immigration, so it is imperative it is not issued.

I DID, and my attorney got VERY aggressive in an email saying that they asked an Immigration specialist about this issue and that nothing was going to happen to me. That it would have NO EFFECT on my future visa applications. That she was tired of repeating the same thing to me about this. That if I wasn't happy that I should then hire a private attorney (! yes, Crazy I know).

How much would it cost me approximately to hire a private attorney who could take care of all of this?

If it is, well, then you'll just have to deal with it. Gather and keep as many papers as you can. Just like you made the best case you could to try to get it not issued, when the time comes for a new visa, youd have to present a similar case to USCIS showing yes- an OP was granted but look Im really not a threat and heres all the reasons why. The judge simply chose to err on the side of caution and issue it. But this shows shes crazy and this shows she attacked me first, and this shows Im not a threat etc etc. Hopefully it will be enough to overcome it an prove your moral character is in good standing.

Can I plead the same way about the reason why I OVERSTAYED? Because of these court dates ONLY?

THANK YOU SO MUCH FOR YOU HELP

[Unluckyguy 2]

What hes referring to you can find out more information here-

http://www.apsanlaw.com/law-151.THE-212d3-WAIVER--Violators-of-US-laws-may-still-be-eligible-for-a-Visa.html

Its basically an expansion of the last paragraph of the last post I wrote. Where I talked about if the OP is granted and you are labeled a 'threat' and considered inadmissible because of it, you can or rather would need to submit all that stuff I listed above, things showing youre not and youre a good person deserving of a visa along with the waiver to possibly obtain a H1B visa in the future.

Basically you have to show, the risk to society if your admitted, the seriousness of the crime or reason for your inadmissibility and your reason for coming to the US.

The waiver may or may not be approved.

Based on the posts I have read on here I have decided I will absolutely NOT accept the OP in Family Court. Therefore I need to accept the papers myself. Can I go to court and accept them there without my "attorney" who hasn't done ANYTHING for me since the beginning and who has apparently given me FALSE information.

Does anybody know how much time it will take from the time I accept the papers until the actual trial date? (will it be quick, as in 1 or 2 weeks after, or will it be another 1,2 or 3 months of wait?)

Also, Can I accept the papers even though my attorney told me not to? Can I NOT GO with what my attorney says? My attorney told me to accept the OP at the next court date. I don't want to. I want to fight the case since I know I am completely innocent.

[Villanelle 4,122]

Hmm it seems like we keep going around in a loop here. I keep saying you were arrested and charged with this and you keep insisting no I wasnt and then go on to explain how you were arrested and charged with doing that but you didnt actually do it.

I get that you didnt actually do it. Everybody does. It doesnt change the fact that you are currently being charged with it.

Here in the US its innocent until proven guilty. They can have a list of charges a mile long against you. It doesnt matter. You can go to court for hearings a hundred times, all thats going to matter is in the end, the final disposition. Are you found guilty or innocent.

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I had no idea, I thought I couldn't do any of this, that I already had a Public Defender defending me. I listened to and did everything the PD told me to do. I ONLY stayed because of this. I didn't work illegally or anything, I've been surviving on my father's inheritance. There was no incentive for me to stay.

Its good you havent done anything else illegal while youve been in overstay. And again, while your reason for overstay may seem legitimate, its not an approved reason by USCIS. They only forgive overstay for those I posted before- battered people, asylees, and trafficked victims etc. Im sorry your PD did not advise you of such.

--

ALL THIS and I have NEVER been heard in court. NEVER a trial. I got falsely arrested TWICE, TWICE I got put in jail for NO REASON, NO PROOF, nothing. TWO Court cases DISMISSED that will stay FOR EVER on my CRIMINAL RECORD even though I have NEVER been ALLOWED to defend myself at a trial! HOW CAN THIS BE!?!? I can tell that if I was indeed guilty, and that I did do these things to my ex I would have left the country straight away. But, I am completely innocent, everything is invented. I can prove all of it. BUT I can't since I have to wait for the DA to be ready! And the DA will never be ready! Therefore the case will be dismissed and will show on my criminal record even though I never did ANYTHING. And now you are telling me that the fact that I stayed, to make sure that I was found innocent after a trial that NEVER happened, that I am going to be punished for having OVERSTAYED my VISA in the process! THIS IS CRAZY.

THIS IS great so if there is a trial, the Judge will FINALLY listen to me? Great. I want a trial then. It will be very easy since I wasn't even in the area. I have both material evidence and witnesses who are ready to testify. I need to accept the papers first though since I changed addresses they never knew where I lived so they never could serve me the papers.

How long will it take though from the time I accept the papers to the actual trial date? Will it take 1 or 2 months, or it should be pretty quick from there (i.e.: a week or two?). Because we are nearing the 1 year limit in July and I don't want to go over that at all. I want to leave now if I could.

Whats going to stay on your record is the fact that you were arrested and the case was dismissed. Your papers should show why it was dismissed. Either the charges were unfounded or lack of evidence or the DA chose not to prosecute or I really dont know- you have to read them. Sometimes the wording does matter, so you need to read them and obtain all necessary copies before you leave because these are records you are going to want to have for the future.

Again the DA will eventually be ready. By law they can only continue the case so many times. I dont know for sure you will have a trial. If it is like you said, he knows there is no case, he may simply drop the case. You may never have a chance to present your innocence.

Im not sure what you mean by- you never accepted the papers? what papers?

Trial dates are set depending on the courts schedule. You need to wait for a slot to open. Some courts are busier then others. Then you have to wait for both the DA and your PD to both have clear schedules. So if the DA is tied up prosecuting some big time drug dealer, youre going to wait. You can always contact the clerk at the court and inquire about the courts schedule and they can give you a general time frame or some courts have a public access system online where you can look up criminal cases. It should tell you when the pretrial is set for and when the trial is. Your PD should also be able to give you an idea since he works in that court system and Im assuming has tried many cases there. How long did it take for your first case to get before a judge? It should be the same amount of time.

WOW, my attorney told me that accepting the OP without admitting WOULDN'T HAVE ANY EFFECT ON MY FUTURE IMMIGRATION APPLICATIONS. I have to change attorneys then. Clearly my attorney isn't trying to help me

I DID, and my attorney got VERY aggressive in an email saying that they asked an Immigration specialist about this issue and that nothing was going to happen to me. That it would have NO EFFECT on my future visa applications. That she was tired of repeating the same thing to me about this. That if I wasn't happy that I should then hire a private attorney (! yes, Crazy I know).

How much would it cost me approximately to hire a private attorney who could take care of all of this?

I have no idea how much prvt attorneys would cost. You can probably find plenty of free consults in NY with immigration attnys. I posted a link previously for a site where you can email immigration attorneys for apx 5$ an email or chat online or via phone for apx 1$ a min. You have to remember this is YOUR LIFE, YOUR FUTURE. You need to take control and ensure you are making the correct and informed decisions from now on. If you feel your PD is not having your best interests at heart, seek advice elsewhere.

Personally for a serious life changing matter like this- I would seek out several consultations with multiple individuals. Youve heard what your PD had to say, Im sure youve heard what your friends and family had to say, and now youve heard from strangers on a message board. You should now move on to qualified legal professionals. If you can get some advice for free, great. If you have to pony up some cash- well, thats how it is. Do not skirt around the issues with a professional though. They can not help you unless you give them all of the facts.

(if the PD asked an immigration adviser if this kid takes the OP now in 3 yrs can he apply for an H1b and get it, I can see the adviser shrugging and saying yeah, because 1- in 3 yrs your ban is going to be over, and 2 it will be possible but its going to be hard. Enough time wouldve passed since the OP expired. Youd have to file the waiver Boiler explained showing youre not a threat. Youd have to show for the last 3 years you were in good moral standing. Its possible, but its not easy. Saying its going to have NO EFFECT is a severe mis-statement.)

[Unluckyguy 2]

Hmm it seems like we keep going around in a loop here. I keep saying you were arrested and charged with this and you keep insisting no I wasnt and then go on to explain how you were arrested and charged with doing that but you didnt actually do it.

Yes, I didn't do it and the charge of breaching the OP was dropped. Now, there are the 3 other lies she said happened that are left, that I can prove are lies but that I will NEVER be able to prove since we can't go to trial if the DA isn't ready. The DA HAS TO BE READY within 90 days (Speedy trial). That is the Criminal Case.

Family Court: That is why the judge ordered a new service of papers (THE OP itself until there is a trial, to have someone serve me the papers IN HANDS). The Family Court DA for my ex gave an affidavit of some guy who supposedly had served me the papers at 10am. I found out that this is a friend (maybe now boyfriend) of my ex. It had a description of me grossly overstating my weight and describing some marks I had on my body, obviously no one answering the door would come out naked, so obviously the description was made by my ex on the affidavit. Extremely immature (yes, she was) and criminal. Yet, she didn't get punished for that apparently.

I get that you didnt actually do it. Everybody does. It doesnt change the fact that you are currently being charged with it.

I'm not charged with breaching the OP since the first court date.

Here in the US its innocent until proven guilty. They can have a list of charges a mile long against you. It doesnt matter. You can go to court for hearings a hundred times, all thats going to matter is in the end, the final disposition. Are you found guilty or innocent.

How is is innocent until proven guilty when the DA isn't ready to go to trial after 90-days, and therefore the case is dismissed (No, the charges aren't dropped) WITHOUT a trial. Meaning, I have that on my criminal record even though there was NEVER a trial, I was NEVER heard. I NEVER could defend myself. Most of all: I am actually completely innocent.

Now I will have 2 dismissed cases on y criminal record!!! 2 arrests!!! How can that be! How can innocent people have a criminal record without having a single trial?!

Now do you understand why I stayed in the US so as to be ready any day if they called me to go to trial and defend my name?

-----

Its good you havent done anything else illegal while youve been in overstay. And again, while your reason for overstay may seem legitimate, its not an approved reason by USCIS. They only forgive overstay for those I posted before- battered people, asylees, and trafficked victims etc. Im sorry your PD did not advise you of such.

I NEVER did ANYTHING illegal knowingly. The only thing was to overstay, I sincerely never thought that it would count against me when I was falsely accused of something and had to wait for a court date. It makes NO SENSE not to waiver for people who haven't been found guilty. It's just COMMON SENSE.

--

Whats going to stay on your record is the fact that you were arrested and the case was dismissed. Your papers should show why it was dismissed. Either the charges were unfounded or lack of evidence or the DA chose not to prosecute or I really dont know- you have to read them. Sometimes the wording does matter, so you need to read them and obtain all necessary copies before you leave because these are records you are going to want to have for the future.

Again the DA will eventually be ready. By law they can only continue the case so many times. I dont know for sure you will have a trial. If it is like you said, he knows there is no case, he may simply drop the case. You may never have a chance to present your innocence.

NO, I guess you don't know everything. The DA has to be ready within 90 days for trial, if not the case is dismissed. He won't drop the case as anyone would think would be logical after 90 days of trying to be "ready".

Im not sure what you mean by- you never accepted the papers? what papers?

? I'm going to repeat then. The first papers (the Family Court papers I got served by my landlord (!)(summons, petition, OP) after 6pm a week after the first case got dismissed in early October) were found to have been not served correctly by the judge at the first court date after that incident. I did get falsely arrested for having "breached these" since they claimed they served them at 10am.

SO, the judge, ordered them to serve me NEW papers. Problem is that I changed addresses in between. So they still haven't been able to serve me papers.

Trial dates are set depending on the courts schedule. You need to wait for a slot to open. Some courts are busier then others. Then you have to wait for both the DA and your PD to both have clear schedules. So if the DA is tied up prosecuting some big time drug dealer, youre going to wait. You can always contact the clerk at the court and inquire about the courts schedule and they can give you a general time frame or some courts have a public access system online where you can look up criminal cases. It should tell you when the pretrial is set for and when the trial is. Your PD should also be able to give you an idea since he works in that court system and Im assuming has tried many cases there. How long did it take for your first case to get before a judge? It should be the same amount of time.

I have no idea how much prvt attorneys would cost. You can probably find plenty of free consults in NY with immigration attnys. I posted a link previously for a site where you can email immigration attorneys for apx 5$ an email or chat online or via phone for apx 1$ a min. You have to remember this is YOUR LIFE, YOUR FUTURE. You need to take control and ensure you are making the correct and informed decisions from now on. If you feel your PD is not having your best interests at heart, seek advice elsewhere.

Personally for a serious life changing matter like this- I would seek out several consultations with multiple individuals. Youve heard what your PD had to say, Im sure youve heard what your friends and family had to say, and now youve heard from strangers on a message board. You should now move on to qualified legal professionals. If you can get some advice for free, great. If you have to pony up some cash- well, thats how it is. Do not skirt around the issues with a professional though. They can not help you unless you give them all of the facts.

OK I will

(if the PD asked an immigration adviser if this kid takes the OP now in 3 yrs can he apply for an H1b and get it, I can see the adviser shrugging and saying yeah, because 1- in 3 yrs your ban is going to be over, and 2 it will be possible but its going to be hard. Enough time wouldve passed since the OP expired. Youd have to file the waiver Boiler explained showing youre not a threat. Youd have to show for the last 3 years you were in good moral standing. Its possible, but its not easy. Saying its going to have NO EFFECT is a severe mis-statement.)

THANK YOU VERY MUCH

[VanessaTony 3,567]

This can't be right. Are you sure of what you are saying or is this only your feeling?

What do you mean "The overstay pretty much assures you'll never get another visa to the US"?? Isn't it a 3-year ban? I can then apply for a visa after that. What's the point of the ban then?

I apologise I was wrong about the inability to get a waiver for a non-immigrant visa. The rest still stands.

The ban is the ban on applying. You can apply during the ban period but it would be automatically denied because of the ban (except for the waiver stuff). After the ban period is over you can try applying for another visa. You would not only need to prove all that stuff that was previously explained, but you've now got documented history of overstaying. Without STRONG ties they'll simply deny you entry for risk of overstay, not necessarily the criminal stuff. The overstay implies that you don't care about the rules of your visa and just do what you want, so why should they believe you when this time you say you won't overstay? I'm not accusing you of this, I'm trying to show you that USCIS honestly doesn't care WHY you overstayed, they just care that you did. You'll see on that waiver page mention of a humanitarian entry, that's the last ditch effort for entry for the court dates.

Re the criminal stuff, yes I do know that simply being accused of this, even being dismissed, can be held against you. You'll read all about this online. Even though technically you're SUPPOSED to be innocent until proven guilty, USCIS tends to assume that you're guilty, but they didn't have enough evidence to convict. So it's not like they see dismissed and think "oh, we can just ignore this". Instead they look at what you were charged with/arrested for/went to court for and determine whether or not they think you're "worth" being let in the US seeing you were arrested so they had to have had reason to arrest you. I'm not saying they DID have reason, I'm saying that that's what USCIS can think.

Your PD doesn't know immigration laws. Immigration attorneys sometimes aren't the best either, you've got to be careful you've got a good one instead of one that promises you the world - for the right price. Most likely your PD didn't ask the right questions and that's why they got the wrong answer.

http://www.temple.edu/isss/immigration/overstay.html

Edited March 15, 2013 by Vanessa&Tony

[VanessaTony 3,567]

Based on the posts I have read on here I have decided I will absolutely NOT accept the OP in Family Court. Therefore I need to accept the papers myself. Can I go to court and accept them there without my "attorney" who hasn't done ANYTHING for me since the beginning and who has apparently given me FALSE information.

Does anybody know how much time it will take from the time I accept the papers until the actual trial date? (will it be quick, as in 1 or 2 weeks after, or will it be another 1,2 or 3 months of wait?)

Also, Can I accept the papers even though my attorney told me not to? Can I NOT GO with what my attorney says? My attorney told me to accept the OP at the next court date. I don't want to. I want to fight the case since I know I am completely innocent.

You mean accept service right? Based on your other posts they're trying to serve you and want you served in court. That's totally different to "accept the OP"... two entirely different things.

Your PD is giving you the information based on their experience, just like a lot of people do here. They don't know EVERY law, they can't possibly. They know the ones they use all the time. It's like learning things in school and forgetting all the stuff that you don't use all the time but being pro at the stuff you do all the time. They usually do things in a certain way and when people need or want to do things differently they don't know whether they can or not because they haven't looked into it. Had you said to them "I HAVE to leave the country, I do NOT have a choice. what are my options with this court stuff?" they probably would have found ways to work it out for you. Sadly, because you didn't push it, because you didn't KNOW to push it, they stayed where they were comfortable and you're paying the price. That's not their fault, it's not your fault, it's just a breakdown in communication/knowledge.

I personally would not change attorney's right now, but I would start meeting with some. After all you have plenty of time to hang around and wait so you can meet with some attorney's. MOST, if not all, offer a free hour or half-hour consultation. Some will talk with you over the phone. Get many opinions. There's not much you can do about this family and criminal stuff... you said it's being dismissed but even if you got it expunged it's still accessible to immigration and needs to be disclosed to them.