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

[EM_Vandaveer 2,408]

http://www.visajourney.com/forums/topic/594022-after-i-130-approval-can-nvc-decide-not-to-forward-to-embassy/

I'm linking this thread as an example of how cleared in terms of criminal law does NOT mean you are fine with immigration.

In that thread OP's husband also was never convicted, but still has a permanent, unwaiverable ban because of how USCIS views his case. I'm not implying that you are in that much trouble, I am only linking it as an example.

[Harpa Timsah 13,258]

Profiling how? And why is it pertinent?

[Chris and ZhiJia 146]

No, they actually must read you your rights. It is called a Miranda warning in US law.

They really don't have to Mirandize the person being arrested. The only problem arises is that if anything is spoken after the arrest, it may not be found admissible in court, but the police can definitely arrest someone without reading them their Miranda rights. Therefore, it is always in the best interest of the arresting officer to read the Miranda rights, but it is not required.

http://www.nolo.com/legal-encyclopedia/police-questioning-miranda-warnings-29930.html

http://www.nolo.com/legal-encyclopedia/exceptions-the-miranda-rule

http://www.nolo.com/legal-encyclopedia/when-police-violate-the-miranda-rule

Edited June 10, 2016 by Chris and ZhiJia

[yuna628 9,682]

Regarding the reading of rights. You'd think it would be a slam dunk think that should protect everyone from unlawful arrest?

The fact is.. well it's murky.

http://www.eppersonattorney.com/2015/04/happens-police-officer-doesnt-read-rights/

https://www.flexyourrights.org/faqs/police-didnt-read-me-my-rights/

http://www.nolo.com/legal-encyclopedia/police-questioning-miranda-warnings-29930.html

http://www.pandullolaw.com/Criminal-Defense-Blog/2015/January/Arrested-and-Not-Read-Your-Rights-Myth-versus-Fa.aspx

We don't have all the facts of the case before us to know if this individual had the charges dismissed due to solely not having ''miranda'' rights or if there were other misconduct. I suspect there are some other factors at play, but don't know certainly. Not having Miranda rights read is a common occurrence at least in the city I grew up, especially when it related to drug searches in vehicles.

If he was not read Miranda and then was questioned without then having his rights read or an attorney presented... there would be the problem. But if he was simply taken in without Miranda most cops will get away with this easily. The OP used the term ''motion to dismiss in the interest of justice'' or a ''clayton motion''... I'm sure one of our more familiar posters in law matters would be able to clarify on that... but I suspect it's because the furtherance of having a court case would have been too much effort even under reduced charges and as the individual is from another country unlikely to get far in the court system. Some factors may be the seriousness of the crime, the harm it caused, and that the effort to convict would cause more harm than good. Stuff like that..and lots of questions. Was the pot obtained in a state where it's 'legal' and brought to a state where it's not (an immigrant might not know this so an attorney might argue that), was it a small amount (fairly yes), was the person doing anything else harmful at the time (no).

Still doesn't matter though. An arrest record of some sort will be there.. and besides all that, they will have to admit to possessing/using.

Edited June 10, 2016 by yuna628

[Pinkrlion 2,724]

No, they actually must read you your rights. It is called a Miranda warning in US law.

They do not have to read you your rights to search your vehicle, they only need permission from the owner of the vehicle or the driver. He must be Mirandized when arrested.

Edited June 10, 2016 by Pinkrlion

[kris&me 572]

Actually was probably because they did not want an international incident

if any police officer smells drug or a drug sniffing dog, they can search

dismissed the case but still there is an arrest record

i think the lawyers on here will tell you to expect issues

i would go the CR 1 and do the waiver

[JFH 12,190]

Dismissed 'in the interests of justice' does not mean the slate has been wiped clean. It merely means that it has been decided that pursuing the case would be futile as there has already been more punishment (4 days in jail) than a conviction would warrant. There's no way it was handled as a felony if 4 days of jail was considered sufficient. That's a misdemeanor. They probably decided 4 days was enough as you were not a resident and would be leaving the country anyway. Had they proceeded with a trial and imprisonment they would then have to deport. Very expensive procedure.

You haven't denied that you were in possession of marijuana, which suggests that you were. For immigration purposes, this matters a lot. It shows a blatant disregard for the law.

[Lemonslice 4,894]

Have you ever been arrested in another country?

[JR loves JR 196]

My husband was mistakenly identified and arrested for a CIMT. (Long story, he was wearing the same color shirt as the actual suspect and on the same bus. Both men were arrested and my husband cleared once they got his identification). He has to disclose the arrest during every immigration application process. He had to provide a letter from the arresting agency as well as his police certificate during his K-1 interview. And the CO spent more time questioning him on this event than anything else. And yet he was clearly innocent and the letter clearly states that it was mistaken identification. He didn't even see a judge.

In your case, I'd expect the CO to focus on this event. So be sure that you have all the paperwork you can gather. Spend some time thinking about the details of the event because "I don't remember" is not an acceptable answer. I'd also research the common reasons that charges get dismissed for the sake of justice. And be prepared to have a one year ban for drug use. Oh and be sure to tell the truth.

[JFH 12,190]

A one-year ban is lenient. My husband's criminal record (theft convicted over 20 years ago) has resulted in a LIFETIME ban from the UK. That's why I am having to move.

OP, have you considered the alternative? How about your fiancée moves to the UK? Or was she also involved in this incident? If it's about being together, surely it doesn't matter where.

[Brokenness 3]

The issue is no longer whether you were arrested. The perception of abusing illegal substances is what the immigration CO would be upset with. For example, is you had no arrests and the CO asked if you use marijuana, an affirmative answer could result in denial. Same with cannabis being found in your urine during the medical, this would also be grounds for denial. Neither have anything to do with being arrested, but the proof that you use cannabis. Therefore the evidence of this arrest (either lawful or unlawful) isn't the concern on the CO, but rather the fact that you have now documentation that you are associated with cannabis. This is very unfortunate as the world's perspective on this plant is changing, but currently there will be questions from the CO about this. You should read the holds that pervious individuals have concerning cannabis and their concern will be that you no longer use cannabis and have not done this for > a year. Prepare to demonstrate that someway during your interview and be prepared to have doubt placed on any of your responses.

[Rc123rc 528]

In simple terms, everything about the arrest you can throw out the window. Get it out of your head. Point of fact is you had cannabis on you. It has to be disclosed. Failure to do so with cause even more problems. A lot of suggestions point to CR-1 and try and get a waiver. Arguing further about lawfulness or miranda rights or not is pointless. Time to take a deep breath, accept the reality check and take the advice given. Good luck, I can sympathize with you but it is what it is.

[Jawaree 718]

Rights must be read or the case gets thrown....its the law....now USCIS looks at what time (if a felony)

you could have received if the cop did not mess up on the Miranda. You will be taking a chance coming

on VWP so its best she file the K1 & come to see you in the meantime, you will need a disposition on this

case to present when asked for it, once its in the mix get you a waiver atty that can argue this, be very

careful in future decisions , just don't make this worst

[elmcitymaven 9,712]

Please do not come to VJ for legal advice, which is what you really need here. You will get a lot of conjecture, some of which may be legally correct but not applicable to your case, some of which may be completely incorrect, and some of which may be correct and applicable -- but without knowing all the specifics of your case, we cannot tell. It's also against the TOS to give legal advice on here (just a friendly reminder to everyone about this).

This is one of those cases where a consultation with a well-qualified attorney is going to be much more useful, for your own sake.

[Caykay1 71]

You overstayed which is not a ban from the USA. I will be more worried about the arrest because it doesn't look good either it was for trespassing or for speeding or for murder. Seek legal advise.