I-129F Part 3 4a, Arrest vs Detention

[Spyro0421 0]

Hey I have a question that I was hoping you guys might have an answer to.  So on I-129F Part 3 4a, there is a section that states "Have you ever been arrested, cited, charged, indicted, convicted, fined, or imprisoned for breaking or violating any law or ordinance in any country, excluding traffic violations (unless a traffic violation was alcohol- or drug- related or involved a fine of $500 or more)?".  The key part there is arrested.  

Essentially 8-9 years ago I got "detained" for alcohol intoxication + drugs (I was being stupid and just took something that my friend gave me).  I remember thinking I was going to die after taking the drug, and actually turned myself to a police officer I saw walking around because I was deteriorating mentally (retrospectively it would've been smarter to call an ambulance but hey, I was on drugs).  I was sent to a hospital, spent the night in a drunk tank and was released in the morning.  My life has since cleaned up considerably since then and I am quite successful with my own business.  I was never convicted or even charged of any crimes from that night (or anything else for that matter) and I got a paper 3 weeks later stating that I had been "detained" as opposed to "arrested".  ED drug screen even came back 100% negative except for alcohol which makes me wonder what the hell I took back then (let's say I'm not friends with that guy anymore).  Regardless, I moved on with my life and haven't thought about the incidence since.  Now that I am applying for a K-1 Visa the whole incident has come roaring back after seeing Part 3 4a.    

 

For reference, the paper I received stated "As required by the provisions of Penal Code Section 851.6, I herby certify that the taking into custody of the above subject on _________ by the _________ police department was a detention only, not arrest."  Other parts of paper says "In any case in which a person is arrested and released and no accusatory pleading is filed charging him with an offense, any record of arrest of the person shall include a record of release.  Thereafter, the arrest shall not be deemed an arrest, but a detention only."  The paper seemed to say that I was "detained" vs being "arrested".

As a result, should I click "no" for Part 3 4a since technically I wasn't arrested and there wasn't even a "law or ordinance" cited whatsoever during that whole process (since the question also talks about being arrested for specifically breaking a law).  
 

[Going through 5,671]

You would still have to put yes.

 

You are focusing only on the "arrested" part of that application...arrested doesn't necessarily mean you were put in handcuffs, and faced a trial.

Spending the night in jail is "imprisoned" and means that they have a record of your offense....whether you turned yourself in voluntarily or not.

If you were as out of it as you say in your original post, it's quite possible that you forgot a few other things as well (like if you were fingerprinted at the station and formally booked before spending the night to sober up).  Since you received formal paperwork from them in the end, that tells me that you were at least cited, so again you would have to answer 'yes'.

 

It's more worth it to put "yes" on the application (and gather whatever documentation you can regarding your encounter) than to put "no"...which can be seen as willful misrepresentation, and have that little check-box come back to bite you during your interview.

Edited August 13, 2017 by Going through

[Going through 5,671]

Also wanted to add----because it happened out of the statutory period for your filing, and the type of incident, the offense itself won't become an issue...but if you don't declare it in your application, it can become a huge issue then.

[PRC Rabbit 40]

Part 3 question 1 on the newest 129f  seems to be limited by the  Instructions.  It seems to limit the reporting requirement only for TOP's & OP's  that are  related to any of the crimes  specified below  as set forth in the instructions.  It makes sense as the specified crimes are crimes of violence, thereby affording  some constitutional protection should these new forms come to examination in subsequent  litigation. Being required to report  TOP's granted on consent for non-violent offenses where there was never any conviction, sounds unconstitutional. That's how Administrative Law crawls forward though, I hope it's challenged by some brave soul  in the future.

 

I can understand the reasoning  after practicing law in Family Court where TOP's are given automatically and often made permanent as a matter of expedience and often where there is no conviction at all. It's easier for the judge to enter a POP than to keep extending the TOP until the case is finished. I am depressed at how misleading and deceitful  USCIS'  wording is on the form such that it needs to be carefully read in conjunction with the instructions and a thorough understanding of  administrative due process.  I never wanted to practice immigration law but  I'm truly offended by USCIS' bullying under the guise of IMBRA's reporting requirements.

Edited September 7, 2017 by PRC Rabbit
spelling

[Ben & Judy Mae 54]

On 8/13/2017 at 3:33 PM, Going through said:

Also wanted to add----because it happened out of the statutory period for your filing, and the type of incident, the offense itself won't become an issue...but if you don't declare it in your application, it can become a huge issue then.

I would agree with this.  You need to mention it because the police definitely recorded the incident somewhere and the USCIS will certainly find it.  Also, "arrested" is a technical term and does not necessarily mean you were placed in handcuffs.  However, I don't think it will have an impact on your case because it is 1) not a sexual or violent offense and 2) it occurred more than 7 years ago and 3) it was a one time incident.

 

Good luck

[Going through 5,671]

2 hours ago, PRC Rabbit said:

I can understand the reasoning  after practicing law in Family Court where TOP's are given automatically and often made permanent as a matter of expedience and often where there is no conviction at all. It's easier for the judge to enter a POP than to keep extending the TOP until the case is finished. I am depressed at how misleading and deceitful  USCIS'  wording is on the form such that it needs to be carefully read in conjunction with the instructions and a thorough understanding of  administrative due process.  I never wanted to practice immigration law but  I'm truly offended by USCIS' bullying under the guise of IMBRA's reporting requirements.

USCIS gets around it by asking if one has ever been charged...not just if one has ever been convicted. (Because you can be charged but not convicted in the end, of course)

 

Personally, I don't  find the question misleading or deceitful the way it's worded.  I think the question is more to see if one is honest (as part of the good moral character issue arising from any past charge)---in most cases, they already know by the time the background check is completed whether an applicant has a less-than-stellar history, they just also want to see if the person will disclose it or try to be misleading when putting through their paperwork, imo.

[PRC Rabbit 40]

I have seen many times where cops arrest someone alleging Probably Cause but at Arraignment  the judge throws the case out without charging the defendant and defendant walks out of court immediately.  The cops only make Probable Cause determinations.  It is the Court that charges the defendant with the crime. Police can only detain/arrest upon PC and that is what Arraignment is all about. Most defendants waive their Probable  Cause Hearing because they will likely get detained longer, but everyone is entitled to it.  I still see USCIS as a bully trying to take advantage of people with their overly expansive terminology.