the stressful "Decision cannot yet be made about your application"

[Miamidade 6]

Hello everybody ! I didn't think that i could search forums for that information but now i'm here. Let me explain my situation and i hope you can try to help me some how .

In 2012 i've got my Green Card. no violations\no parking tickets nothing. In 2016 i was arrested for Domestic violence (Battery attempt) but later on i took the special program (diversion program) finished it and all charges was Dropped (NOLE PROS at the end) so i was NOT CONVICTED and im still leaving with my wife. IN 2018 December i applied for US Citizenship N-400. After 6 month i was scheduled for an interview (AUGUST  17th  was the interview) . The Officer was nice, and it takes about 20 min (I've passed English tests and Civil and history) then he asked about N-400 and then  about my Arrest ! I explained him FROM MY SIDE what had happened that night and I Said BUT the Case was Dropped and dismissed but He smiled and said IT WAS NOT DROPPED , it was NOLE PROS (no prosecution). Then he  Printed me a form -  I ve Passed but Decision cant be made yet" And He said that It takes SOME time (2 weeks) you'll receive  it BY mail (the decision). Since THAT day - im checking every time online  No information ( 5 weeks have passed). "YOU ATTENDANT YOUR INTERVIEW -You DONT NEED TO DO ANYTHING THAT TIME  Estimaited Time 3 Month!" 

I cant sleep , i so stressed out. And IM so scared that it a HUGE possibility that they will DENY me. (One of my friends WITH CONVICTION of RECKLESS Driving Got his Citizenship in 2 Weeks with the same (Decision can not be made) and i'm frustrated. So i would be very happy if you can help me with this situation a lil bit!  THANK YOU! GOD BLESS AMERICA!

Edited September 25, 2019 by Miamidade

[kris&me 572]

Leaving with your wife means you left her and didn't go back

Do you mean Living with your wife ??

[Villanelle 4,122]

You will most likely be denied. You should reapply after 5yrs has passed from the date of the incident or rather the end of diversion program / date nole pros was recorded.

 

Domestic violence is a serious matter. Of course reckless driving is also serious but you cant compare apples to oranges. 

[Miamidade 6]

36 minutes ago, kris&me said:

Do you mean Living with your wife ??

Yes. sorry for the miss-spelling )

33 minutes ago, Villanelle said:

Domestic violence is a serious matter

But by the LAW if a person is NOT convicted - there is no Immigration matter !

[Going through 5,671]

1 hour ago, Miamidade said:

I explained him FROM MY SIDE what had happened that night and I Said BUT the Case was Dropped and dismissed but He smiled and said IT WAS NOT DROPPED , it was NOLE PROS (no prosecution).

The IO is correct.  Nolle Pros is as if charges had not been filed---it is not the same as an acquittal, and it is not the same as being found innocent.

 

1 hour ago, Miamidade said:

i was arrested for Domestic violence (Battery attempt) but later on i took the special program (diversion program) finished it and all charges was Dropped

The fact that you were court-ordered to attend domestic violence classes/your case was diverted, means that you were convicted.  Diversion is a form of conviction in the eyes of USCIS.  If you were not convicted of anything, you wouldn't have been ordered to complete the diversion program.

 

1 hour ago, Miamidade said:

(One of my friends WITH CONVICTION of RECKLESS Driving Got his Citizenship in 2 Weeks with the same (Decision can not be made) and i'm frustrated.

Reckless driving, while no joke either, is not taken as seriously as Domestic Battery charges, especially if you were you charged with a felony as opposed to a misdemeanor.

 

5 minutes ago, Miamidade said:

But by the LAW if a person is NOT convicted - there is no Immigration matter !

You WERE convicted (Diversion) in the eyes of USCIS.  The nolle pros happened ONLY because you completed the Diversion Program.  So, yes, it can affect your N400.  Any DV charge is taken quite seriously by USCIS.   Considering this happened within the statutory period for USCIS's Good Moral Character Requirement, there is a possibility your N400 will be denied.

Edited September 25, 2019 by Going through

[Going through 5,671]

As @Villanelle said, if denied your option is to reapply later on down the road.  I would suggest NOT reapplying right away (if you are denied) but to wait a couple of years --- and keep your  nose clean --- afterwards.

 

In hindsight, it would have been better if your original N400 filing happened when you were a couple of  years (at least) outside of the GMC statutory period..because depending on what you were originally and officially charged with, DVs can also be termed as a CIMT (which is also worse to have to deal with immigration-wise).  For example, aggravated battery is usually, if not always, a CIMT. Simple assault and battery is not usually considered a CIMT.

 

I never committed DV, but with my own CIMTs in the past I purposefully chose to not apply for the N400 until I was offense-free for at least 10 years afterwards from the date of my arrival in the US...which was coupled with the amount of time I'd been offense-free back in my home country.  This was purely to keep putting as much "distance" as I could between the original disposition of my charges (which happened in 1992) and my citizenship filing.  I would suggest you try to put some distance between your completed diversion program and your next N400 filing (if it comes to you being denied).  Of course, I'm not suggested you wait 10 years---in your case (and without knowing all the specifics of  your charges) I would suggest at least 2, though.

 

Also, the final outcome of a case is not always the only determining factor for an approval---even with charges withdrawn, diversion, etc.  USCIS will take into account not just the final disposition of your case, but also what the maximum penalty under what you were charged for is in your State of jurisdiction.  USCIS will also take into account how long ago the crime(s) occurred.  

 

It is also quite possible that your N400 will be approved---again, I don't know all the specifics of your charges, so I can't really say either way.

[SusieQQQ 11,586]

This may be no comfort to you,but it’s not the first case I’ve seen where a LPR mistakenly thought nolle pros would be ok to proceed with the n400 and found hassles. Bottom line is an LPR should always seek the advice of an immigration lawyer before agreeing to anything other than a straight dismissal of the charges.

[afrocraft 313]

Hold up. Why are most people so negative about the prospect of approval in this case? 

4 hours ago, Villanelle said:

You will most likely be denied. You should reapply after 5yrs has passed from... the end of diversion program / date nole pros was recorded...Domestic violence is a serious matter.

Crime of moral turpitude? With no conviction?

2 hours ago, Going through said:

DVs can also be termed as a CIMT (which is also worse to have to deal with immigration-wise).  

Here's how the USCIS Policy Manual defines a conviction:

C. Definition of Conviction

1. Statutory Definition of Conviction for Immigration Purposes

Most of the criminal offenses that preclude a finding of GMC require a conviction for the disqualifying offense or arrest. A “conviction” for immigration purposes means a formal judgment of guilt entered by the court. A conviction for immigration purposes also exists in cases where the adjudication of guilt is withheld if the following conditions are met:

• A judge or jury has found the alien guilty or the alien entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt; and

• The judge has ordered some form of punishment, penalty, or imposed a restraint on the alien’s liberty.

It is not always clear if the outcome of the arrest resulted in a conviction. Various states have provisions for diminishing the effects of a conviction. In some states, adjudication may be deferred upon a finding or confession of guilt. Some states have a pretrial diversion program whereby the case is removed from the normal criminal proceedings. This way the person may enter into a counseling or treatment program and potentially avoid criminal prosecution.

 

If the accused is directed to attend a pre-trial diversion or intervention program, where no admission or finding of guilt is required, the order may not count as a conviction for immigration purposes. 

[afrocraft 313]

4 hours ago, Miamidade said:

...In 2012 i've got my Green Card. no violations\no parking tickets nothing. In 2016 i was arrested for Domestic violence (Battery attempt) but later on i took the special program (diversion program) finished it and all charges was Dropped (NOLE PROS at the end) so i was NOT CONVICTED and im still leaving with my wife. IN 2018 December i applied for US Citizenship N-400....

i would be very happy if you can help me with this situation a lil bit!  THANK YOU! GOD BLESS AMERICA!

As you can see from my post above, there are important legal questions about how your state treats nolle pros that must be researched before your case is decided. That's probably the reason for the lengthy delay. In any case, USCIS has 120 days from interview to make a decision on the N-400. I'd reset my expectations accordingly.

[Villanelle 4,122]

M. Unlawful Acts

An applicant who has committed, was convicted, or imprisoned for an unlawful act or acts during the GMC period may be found to lack GMC. ^[63] This provision may apply to cases where an offense is not specifically listed in the other relevant GMC provisions but rises to the level of preventing the applicant from establishing GMC. ^[64] This provision does not require the applicant to have been charged or convicted of the offense.

An “unlawful act” includes any act that is against the law, illegal or against moral or ethical standards of the community. The fact that an act is a crime makes any commission thereof an unlawful act. ^[65] https://www.uscis.gov/policy-manual/volume-12-part-f-chapter-5

[Villanelle 4,122]

(b) Finding of a lack of good moral character. (1) An applicant shall be found to lack good moral character, if the applicant has been:

(i) Convicted of murder at any time; or

(ii) Convicted of an aggravated felony as defined in section 101(a)(43) of the Act on or after November 29, 1990.

(2) An applicant shall be found to lack good moral character if during the statutory period the applicant:

(i) Committed one or more crimes involving moral turpitude, other than a purely political offense, for which the applicant was convicted, except as specified in section 212(a)(2)(ii)(II) of the Act;

(ii) Committed two or more offenses for which the applicant was convicted and the aggregate sentence actually imposed was five years or more, provided that, if the offense was committed outside the United States, it was not a purely political offense;

(iii) Violated any law of the United States, any State, or any foreign country relating to a controlled substance, provided that the violation was not a single offense for simple possession of 30 grams or less of marijuana;

(iv) Admits committing any criminal act covered by paragraphs (b)(2) (i), (ii), or (iii) of this section for which there was never a formal charge, indictment, arrest, or conviction, whether committed in the United States or any other country;https://www.ecfr.gov/cgi-bin/text-idx?&node=se8.1.316_110

[afrocraft 313]

7 minutes ago, Villanelle said:

(iv) Admits committing any criminal act covered by paragraphs (b)(2) (i), (ii), or (iii) of this section for which there was never a formal charge, indictment, arrest, or conviction, whether committed in the United States or any other country;https://www.ecfr.gov/cgi-bin/text-idx?&node=se8.1.316_110

Admits, yes. Was there a confession here?

[Villanelle 4,122]

Well he did say he gave "his side of the story"..... 

[Miamidade 6]

1 hour ago, afrocraft said:

Admits, yes. Was there a confession here?

As I explained to the IO, I was sleeping , it was 2 aM . My wife and her friend , decided to go out, when I woke up, I was disagree about that and I said that I don’t want her to go out with him .... I held her hand and then they left ... cops came / domestic violence ( but our daughter was sleeping next room ) ...

[JFH 12,190]

1 hour ago, Miamidade said:

As I explained to the IO, I was sleeping , it was 2 aM . My wife and her friend , decided to go out, when I woke up, I was disagree about that and I said that I don’t want her to go out with him .... I held her hand and then they left ... cops came / domestic violence ( but our daughter was sleeping next room ) ...

You’re lucky you didn’t get a kidnapping charge too. In our state and in others, preventing someone from leaving is kidnapping. It sounds like you grabbed her wrist or arm to stop her going out. You can’t do that. She’s an adult and is allowed to leave her home whenever she wants, with whomever she wants.