Overstayed because falsely accused, have to wait for court date

[VanessaTony 3,567]

on my record of the first incident it says "Dismissed- Speedy Trial Provisions" and "Counsel assigned"...

Okay. Note it says "speedy trial provision" instead of "innocent". So you were only "dismissed" because they didn't have enough time to get their stuff together, that's what USCIS will see, unless you have any evidence to the contrary.

Try and get a copy of your court file before you leave. Hopefully it will show further evidence of your innocence (if USCIS tries to hold it against you).

Edited March 15, 2013 by Vanessa&Tony

[Cathi 5,755]

I would ahve thought all countries keep records of prosecutions, successful or not.

I know in my husband's country they keep records of all court cases, successful or not. But my husband isn't from Europe

[Cathi 5,755]

What I don;t understand is that you continue to argue and plead your case to a forum full of people who have only tried to give you advice. The fact of the matter is that you have some serious legal and immigration issues, and no matter how much you attempt to try to find a loophole, there just isn't one. This is not a legal advice forum, you should take the information and good advice of the members here and hire an attorney. Nothing will change the fact that you were out of status in October when the first incident occurred, and nothing will change the fact that you are still out of status and accruing more days of overstay. You seem like an intelligent guy, but from what I read you are lacking in the common sense department. No one here is saying that you are wrong for wanting to settle this, they are saying you were given bad advice and now it is time to find a new attorney. People get accused wrongly every day for things they didn't do, unfortunately you are one of those people. Court records in this country are not destroyed for good reason, it is for future reference, if a person commits another crime they have the previous court records to refer back to, even if there is no conviction on the previous arrests. the US is not the only country that keeps court records.

[Boiler 45,525]

What I do not get is he apparently has a master's, has had 9 months or so to research this issue and has not even grasped the basics.

Does not add up.

[Teddy B 17,252]

What I do not get is he apparently has a master's, has had 9 months or so to research this issue and has not even grasped the basics.

Does not add up.

Exactly!

And this part from the first post blows my mind.

The case was dismissed without any trial (90 day speedy trial)in beg. October. I didn't find a job since. I was planning on leaving for Europe cause I knew otherwise I would overstay my (visa/OPT).

Problem is that the day when the case got dismissed, I was then allowed to contact her again. So I did, and told her I forgave her for what she did and that I wanted to know what she thought about the entire situation. I really thought she would feel extremely sorry about what she did and that she would appreciate the fact that I forgave her. She never answered my emails.

Why would you ever want to contact this woman again after what she did to you?? My reaction would be to get as far away from her as possible.

[Villanelle 4,122]

It is absolutely DISGUSTING that the US keeps records of ARRESTS. WHY? Just give me one good reason why they do that? If they arrest you again for something similar but have no proof, that doesn't mean you did it this time and it certainly doesn't mean you did it the last time. So why keep records of arrests?

Why put dismissed cases on criminal records? Why put dismissed cases, WITHOUT TRIALS, on criminal records?!

WHY would USCIS judge OVER a US Court what happened even though they didn't do any investigation?! If they US court decided there wasn't enough evidence to go to trial...

on my record of the first incident it says "Dismissed- Speedy Trial Provisions" and "Counsel assigned"...

The US as well as most other countries in the world keep records because thats what a responsible society does. It documents things.

Anytime you have an interaction with an official agency- a school, the DMV, the police, a court, they are going to document it and the record will never be destroyed. Sometimes this is of great benefit to you and sometimes its a burden.

As for no investigation being done- and you simply being arrested. Yes. In regards to violating orders of protection it is just that black and white. Your girl brought down to the police an order or protection showing it was issued at 10am and an email you sent at 2pm. That was it. They did not need to investigate it any further or come hear your side of the story. You were immediately arrested. In regards to OPs there is no grey. Only black and white. The laws are very clear.

If I have a restraining order against you and Im in a store and I see you come in, I can say to the cop in the corner- I have an OP against that man- go arrest him. They will. They must. It doesnt matter if I dont have the paper on me or not. They will arrest you and bring you down to the station, verify the order exists, fingerprint you to make sure you are he. It doesnt matter if you claim, I didnt know she was in there or give any kind of excuse. Its just that black and white.

If its verified that you violated it- youre arrested. You fell into the 'black' because she showed proof that it was issued at 10am and an email that you sent after it was issued to you. Yes, she took advantage of being in the black and embellished her claim by tacking on false allegations about other incidents they couldnt verify. They forwarded all her allegations to the DA who chose to charge you with all of them.

On the flip side there are plenty of people who have OPs who are constantly harassed even with the order and can not get the person charged because they fall into the 'white'. The person can drive by their house a thousand times and unless the officer catches them in the act, they cant charge them with violating it. They can call and hang up a thousand times and unless theres a record of the call, no charges.

Your situation is different because technically you were not in the 'black'. But the police did nothing wrong in promptly arresting you and charging you as they should have. She misrepresented to them when it was initially served. Youre stating the DA knows this. So now the DA can either drop the case, or allow it to go to trial where the DA will try to prove that it was served at 10am and you did violate it and you would have to prove it wasnt.

What would happen if somehow the Criminal Case DA was ready and did ask for a trial and that I win the trial? Would that change anything? I mean I would still have 2 arrests and two cases, one dismissed and one won.

Of course the outcome of the cases matters. It is very important that you show you did not violate the temporary order of protection. You are a decent and law abiding citizen. You did nothing wrong. Do not allow a mark on your record stating anything to the contrary.

Why do you say I would likely not be able to get any non-immigrant visa to the US again? The punishment clearly is 3-year ban for Overstay in between 180 days and 365 days, and 10-years for over a year.

What would be the point of a 3-year ban, if you wouldn't be able to get another visa AT ALL?

Why do you say I would have to fill in an I-130 petition? I looked it up and it says it is for aliens who have relatives in the US who are permanent residents or who are citizens. I never said I had any of these. I don't.

Other people on this thread said that if I did have the OP that I would have to fill a form to prove I am of good moral.

But I don't intend on having that OP, I'm going to fight it. At least for my name, my honor.

If you pass the 180 days you'll have the ban. But you know that. Brother is saying your choices for new visas are going to be limited. The ones that you can apply the waiver for showing hey I do have a good moral character (if the OP is granted against you) you need to also show you have serious reason to be in the US- hence the only one would be the H1B. Wanting to come for vacation is not serious reason. A family based visa may also qualify as serious reason for being here. Maybe right now youre not thinking family, but if you are planning on working/living in the US in the future, there is a good chance you may end up with a USC or LPR spouse.

I think things may not be as bad as they seem. You need to ensure your criminal case is closed and you are cleared of any wrong doing. You need to try your hardest to ensure the OP is not issued, if that involves hiring a prvt attrny for that matter then do it. If it is issued, its not the end of the world. A qualified immigration attrny can help you try to obtain future H1B visas when your ban is up. You must make sure you disclose everything that happened to them in advance though and they fill out the proper waivers, because if they dont, youre going to have more problems if it seems like you tried to misrepresent things by omitting it.

Im not sure if you initially disclosed to the school or OPT program when you stopped working for the company in June. If you havent, you may want to look into that. There may be penalties for failing to report that you stopped working. You do not want that. The last thing you need is for them to think you are trying to conceal your overstay. (Im not familiar with the OPT programs or who you report to- but Im assuming you have some kind of contact?)

[newacct 688]

Did you read the link I previously posted? http://www.temple.edu/isss/immigration/overstay.html Specifically this part (located at the bottom of the table):

This is very interesting. I found an official version from the USCIS site here, and the Example 3 here is very helpful as it explains that an F-1 who drops out has unlawful status, but does not accrue unlawful presence.

Edited March 15, 2013 by newacct

[Teddy B 17,252]

This is very interesting. I found something from USCIS site here that explains the difference between unlawful status and unlawful presence. Example 3 is very helpful as it explains that an F-1 who drops out has unlawful status, but does not accrue unlawful presence.

It's the same as a Canadian tourist that doesn't receive an I-94, which is most. They are technically in the states on B2 tourist status, but without an I-94 they are considered D/S or Duration of Status. Canadian tourists without an I-94 can overstay, be out of status, but cannot accrue illegal/unlawful presence unless given a specific exit date. No illegal presence, no mandatory bar.

[Unluckyguy 2]

You really are looking at trying to fight the wrong thing, the overstay is not as big as the fact that you have two charges on your record.

I have charges, NOT convictions. I was falsely accused. I can prove it. I NEVER had the chance to DEFEND myself. I'm planning on fighting for the Family Court one since I CAN fight that one. The two criminal cases I never could which is totally corrupt!

As if the fact that I was arrested or had a dismissed case meant I was guilty of anything. If I was guilty the DA would have been ready, believe me, and then I would've been convicted. If that was the case, I wouldn't be on this forum, It would be NORMAL that it would prove to be used against me when trying to apply for another visa.

BUT, I am NOT guilty.

I don't understand your logic.

[Unluckyguy 2]

Did you read the link I previously posted? http://www.temple.edu/isss/immigration/overstay.html Specifically this part (located at the bottom of the table):

So because you have D/S on your I-94, I don't believe you've overstayed, technically, yet. So get this done and get out. Hopefully you should be okay on the overstay. The criminal stuff WILL still matter.

Doesn't apply to you. This is if ICE catches up to you (which can happen if you're arrested, they can put you in holding for ICE) they can then put you in removal/deportation proceedings. That's when this would apply to you.

What do I need to get done? I'm sorry I don't understand what you say I have to get done.

Hum, the second time I was arrested I had overstayed my visa as I said since I had accumulated more than 90 days of unemployment. But, there is no way they could know I didn't actually work during all that time. They would have to take the time to go through the payroll of the company I worked for, which doesn't exist anymore (I called my ex-boss 3 days ago). I really don't think they can do this for each of the approximately million of people on OPT in the US.

I really don't believe that the criminal stuff would be of ANY problem. I haven't been convicted of anything. The first case got dismissed and the second will get dismissed. This is the best thing you can get when being falsely accused. The DA SHOULD drop the charges but he is using the speedy trial provision ( all 90 days), he is dragging the case. I can't do anything about it, apparently the DA can do whatever he wants! Yes, it's crazy.

Now I would understand that if had a Restraining Order against me that USCIS would have something against me. BUT, if I accepted to have a Restraining Order against me WITHOUT ADMITTING, which apparently I can do, then that is different. Also, the REstraining Order would last 1 year whereas there would be a 3-year ban. So, When I would apply for a visa in 3 years there wouldn't be any Restraining Order against me anymore.

Am I wrong?

[Unluckyguy 2]

Okay. Note it says "speedy trial provision" instead of "innocent". So you were only "dismissed" because they didn't have enough time to get their stuff together, that's what USCIS will see, unless you have any evidence to the contrary.

Try and get a copy of your court file before you leave. Hopefully it will show further evidence of your innocence (if USCIS tries to hold it against you).

? Don't you feel that if a case got dismissed because they didn't have enough time (We are talking 3 months! That's long enough!) would look more like I am innocent than guilty?

Then I want to ask you: What is the best thing that can happen to someone who is falsely accused?

I am NOT inventing it, the DA CAN drag the case and use ALL 90 days and then the case gets automatically dismissed without a trial. I urged my attorney so many times to force the DA to have a case, but my attorney told me there was nothing they could do, the DA HAS THE RIGHT to use all 90 days to then have the case dismissed. He DOESN'T HAVE TO DROP THE CHARGES. So, I end up with a dismissed case on my records, when I NEVER had a trial! IF this ISN'T corruption, what is?

[LIFE'SJOURNEY 970]

I have charges, NOT convictions. I was falsely accused. I can prove it. I NEVER had the chance to DEFEND myself. I'm planning on fighting for the Family Court one since I CAN fight that one. The two criminal cases I never could which is totally corrupt!

As if the fact that I was arrested or had a dismissed case meant I was guilty of anything. If I was guilty the DA would have been ready, believe me, and then I would've been convicted. If that was the case, I wouldn't be on this forum, It would be NORMAL that it would prove to be used against me when trying to apply for another visa.

BUT, I am NOT guilty.

I don't understand your logic.

This is the logic that will be used, there was enough evidence to bring charges agains you, yes you may have been found not guilty, but you were charged. USCIS uses a different set of logic than the crimminal courts. Do everyone agrees with this, no but it is what it is. Again, as I stated you have two set of charges, fighting and explaining one may have been easy but to try and fight 2 seperate charges that will be a hard one to tow.

Edited March 15, 2013 by LIFE'SJOURNEY

[Unluckyguy 2]

I know in my husband's country they keep records of all court cases, successful or not. But my husband isn't from Europe

OK, I don't see how this helps with the conversation. the question wasn't if a country did but rather WHY they do?

Is it because if you get arrested a second time they can see if you got arrested before? Well, who cares if you got arrested before?! If you were convicted then you probably went to prison or had some kind of punishment.

What is the purpose of keeping records of arrests that didn't lead to anything, no conviction?!

So that they can say the person got away with something the first time, so they are going to get them this time? Being arrested a second time for something doesn't mean you did something the first time, it certainly doesn't mean you did it the second time either.

Same thing with dismissed cases... Why keep those on record? The court had at least 90 days to prove you did something wrong, they didn't. Therefore you are STILL innocent, as in the US you are supposedly INNOCENT UNTIL PROVEN GUILTY.

I can't wait for you to try to give a rational logic/meaning to this.

[Unluckyguy 2]

What I don;t understand is that you continue to argue and plead your case to a forum full of people who have only tried to give you advice. The fact of the matter is that you have some serious legal and immigration issues, and no matter how much you attempt to try to find a loophole, there just isn't one. This is not a legal advice forum, you should take the information and good advice of the members here and hire an attorney. Nothing will change the fact that you were out of status in October when the first incident occurred, and nothing will change the fact that you are still out of status and accruing more days of overstay. You seem like an intelligent guy, but from what I read you are lacking in the common sense department. No one here is saying that you are wrong for wanting to settle this, they are saying you were given bad advice and now it is time to find a new attorney. People get accused wrongly every day for things they didn't do, unfortunately you are one of those people. Court records in this country are not destroyed for good reason, it is for future reference, if a person commits another crime they have the previous court records to refer back to, even if there is no conviction on the previous arrests. the US is not the only country that keeps court records.

How does being arrested for something a second time prove that you did it the first time, and how does it prove you did it the second time?

It doesn't prove anything. Each case is different, so why would they use something that happened in the past?!

[LIFE'SJOURNEY 970]

? Don't you feel that if a case got dismissed because they didn't have enough time (We are talking 3 months! That's long enough!) would look more like I am innocent than guilty?

Then I want to ask you: What is the best thing that can happen to someone who is falsely accused?

I am NOT inventing it, the DA CAN drag the case and use ALL 90 days and then the case gets automatically dismissed without a trial. I urged my attorney so many times to force the DA to have a case, but my attorney told me there was nothing they could do, the DA HAS THE RIGHT to use all 90 days to then have the case dismissed. He DOESN'T HAVE TO DROP THE CHARGES. So, I end up with a dismissed case on my records, when I NEVER had a trial! IF this ISN'T corruption, what is?

Look right now I assisting a good friend with the same issue, being in the wrong place at the wrong time, charges were dismissed. He missed his time to leave by 30 days, US will not issue him another visa, maybe in another 5 o 10 years if he tries again. BTW it has been almost 3 years since he left the US.

He was more inoccent than you, he had just arrived at the location where the crime happen 2 hours before, didn't know any of the people invovle.