Crimes committed long ago, in teenage years, potential inadmissibility

[JL & ML 20]

Hello,

 

My wife and I were hit hard by a big surprise: we went to the AOS interview this past Thursday (May 5) only to be told, at the outset, that I would have to come back, alone, in a month or two for a second interview regarding my criminal history. The officer strongly recommended "off the record" that I come with an attorney. This would be the first time we'd be using the services of a lawyer in this entire process. It's related to some of the questions I answered (truthfully and honestly) on I-129 three years ago. I admitted to marijuana use and being arrested once for assault, all in my home country. This was in my teenage years, almost twenty years ago. The assault charges were completely expunged, and all I got for marijuana use was a $70 ticket on one occasion. All this was before my eighteenth birthday, and in Canada, under the Youth Criminal Justice Act, such "summary offenses" (misdemeanors) are wiped from your slate once you turn eighteen.

 

The USCIS officer was satisfied that we had a bona fide marriage and told my wife she would not need to come back a second time. In other words, next time it would need only be myself and an attorney. They are going to seek grounds of inadmissibility based on these things I did as a teenager. (I have no criminal record and have undergone five or six background checks in the past few years, both for employment and immigration purposes.) The officer led me to understand that they actively seeking a reason to throw me out, and so I will definitely need legal assistance.

 

I have come to understand that I will need to obtain what's called a waiver of inadmissibility. But apparently this waiver is very hard to obtain. I will be hiring a lawyer in any case, but my question on this forum is the following: have any of you had such experiences before? I did not know this would become an issue only now, so close to the end of the process. I would have expected them to have raised the issue earlier. For those of you who have had such experiences or know of others who have had them, do you think I stand a chance, provided I adequately prepare my case with an attorney and he/she come with me to the second interview? I have also heard they weigh the pros and cons of denying me entry. We have two small children and my wife just quit her job to be home with the kids. My deportation would impose years of severe emotional and economic hardship on my family.

 

Note: I understand none of this constitutes legal advice; I'm just asking if anyone else had been through something similar.

 

Thank you very much.

[Boiler 45,467]

VJ has a waiver section and hopefully on of the Mods will move your post.

 

It sounds like you have multiple issues, expunged suggests you were found guilty otherwise there would be nothing to expunge. Drugs is usually a big issue, depends on the details.

 

Sounds like they did you a big favour with their suggestion.

 

One thing that does confuse me is that you show K1 so how did this not all come up when you interviewed in Canada? Normally that is where you would have been asked to submit a waiver assuming your issues require one.

 

 

[Lil bear 4,189]

Moved to Waivers forum for best assistance ( Thx Boiler ! ) 

Edited May 8, 2022 by Lil bear

[JL & ML 20]

Thanks very much for your prompt reply.

 

3 hours ago, Boiler said:

It sounds like you have multiple issues, expunged suggests you were found guilty otherwise there would be nothing to expunge. Drugs is usually a big issue, depends on the details.

Yes, I'm sorry, I realize I used the wrong term, nothing was expunged; I believe the term in Canada was "unconditional discharge." Complete exoneration. Don't know what else to call it. It was so long ago.

 

3 hours ago, Boiler said:

Sounds like they did you a big favour with their suggestion.

I think so, too.

 

3 hours ago, Boiler said:

One thing that does confuse me is that you show K1 so how did this not all come up when you interviewed in Canada? Normally that is where you would have been asked to submit a waiver assuming your issues require one.

I was wondering the same thing. All this dates back to our I-129F three years ago. The lady at the K1 interview did bring it up briefly, but it was along the lines of, "So that past arrest, is everything cleared up there? It's all okay?" "Yes," I replied. "Oh, alright then," she said, smiling. That's about all I remember. That interview was very brief, and I got my K1 in the mail a few weeks later.

 

My understanding is that they want to be satisfied that I am not a drug user. The officer this past Thursday mentioned something about a sworn statement at my next interview in a month or two. The last time I smoked marijuana was in 2006 or 2007. I have never had any drug-related charges. My past arrest was related to a brawl I got into, and again, those charges were withdrawn, I was exonerated, discharged, whatever you want to call it. I went to that courthouse in person in 2019, and I and called them, too. I asked if they had anything on me. Each time I inquired, they found nothing. ALl this was all before I turned eighteen years old, almost twenty years ago. But as to the marijuana use, all I ever got was a ticket when I was about 16 years old for smoking it, a $70 ticket that I paid.

 

Therefore, I think USCIS will want a sworn statement that I am not a drug user nor have been for a very long time. I hope the help of a lawyer will make a difference, and that it's not just a lost cause, that they haven't already made up their minds about me and are just not telling me. That's why I'm wondering if anyone else has been through something similar before, regarding criminal charges long past that have either been withdrawn or pardoned, or anything of the kind, and if it's still possible to immigrate.

[Boiler 45,467]

This sounds weird yes an issue at the Consulate and once I have seen it as an issue at the PoE when the Consulate missed something, obviously not an uncommon situation but I am a bit lost as to what the issue is for adjustment 

[Ontarkie 14,218]

Your court records still exist. The clerk only checked the online system and didn't want to go and dig through the big books. Your records are not digital and they would need to look through the books and find out where they are located and request that they are pulled. You will need to call the court house where you have your hearing and give the the closest dates you can remember for them to find them. 

 

You should have had to turn in a copy of them to even get your K1 Visa. Seems someone dropped the ball during your interview and now they are looking into your history and can't find the documents that should have been in your file. This is a big mess for sure. Get that lawyer and get that court record.

[Crazy Cat 41,836]

18 hours ago, JL & ML said:

That's why I'm wondering if anyone else has been through something similar before, regarding criminal charges long past that have either been withdrawn or pardoned, or anything of the kind, and if it's still possible to immigrate.

At least one member's K- was denied after the interview for failure to disclose expunged arrests.  He was the petitioner. 

[Villanelle 4,122]

So the first thing you want to do is sit down and write out everything you can remember being asked and the answers given. Have your wife do the same separately so you don't influence each others recollection. Do this asap as memories fade and can be unreliable in general. You can make notes as well as to the tone or attitude you perceived as well. 

 

Now regarding the waiver it's not as big a deal as it seems. It's just costly as you need an attorney to prepare it. I know it may seem overwhelming to establish 'hardship' when its Canada but most waivers are approved IF the attorney or self preparer knows how and what to write.  Yes, it can be a hardship if you have 2 USC children and a stay at home wife. An experienced attorney can make it work. 

 

I would also suggest reading through some of the guidelines for drug use and inadmissibility. Some resources online are long winded policy and others are reader friendly blog type explanations by attorneys or legal groups.

 

Now a few things you seem to be confused about. There is no sworn statement about not using drugs, that's not how it works. You can also find information about drugs in the medical guidance from CDC. 

 

When it comes to drugs it's a 2 fold issue. One is the criminal aspect the other is a health aspect. 

 

Only the panel physician/ civil surgeon can make the determination if you are a drug user (which makes you medically ineligible).  They do this by asking questions in the medical and if needed sending you for drug testing and or a psych evaluation. 

 

So question 1- did you disclose at the medical the drug use? If so and your medical was approved it was determined you have no drug issue preventing you from receiving the visa. If you can't remember you can attempt to contact whoever did your medical. Im not sure if they would give you a copy of it but they may be able to give you information contained in it in some fashion.  If you didn't disclose the drug use in the medical that could be the issue now. 

 

Another thing that stands out in your post is how you said "I admitted to marijuana use and being arrested once for assault, all in my home country." It is not clear if you disclosed (admitted) to drug use or a drug charge/crime. You said you paid a 70$ fine which means criminal element was involved, different from admitting to simply using it. This could be the issue as well. 

 

Both of these scenarios should be able to be handled by an attorney with experience but in different specific ways. So yes, it is going to be important to have an attorney with you who has an understanding of the overall situation and can make sure you don't put your foot in your mouth answering questions making things worse. Or possibly clarify something you might have said already that triggered you down this path providing that's what happened. 

 

You also mentioned the last time you used marijuana was 2006 2007. That's not 20 years ago. You also said I have no drug related charges which umm isn't a ticket for 70$ a drug charge? It wasn't 70$ for littering because you tossed the stub on the floor when you were done right? 

 

They also may ask for an updated medical which you shouldn't have any issue getting. This is another cost to you though. 

 

If you have to do the waiver it can take 6months to a year for it to be processed. The only good news is most likely you will be past 2 years of marriage by the time the GC is approved so no ROC. You will definitely spend more money on waiver fees then ROC would've cost but it does help offset the total cost. You also will have a longer wait for Naturalization as you need to be a GC holder for 3yrs and that clock doesn't start until the card is actually issued.  

 

Make sure to submit your EAD renewal as early as you can as you probably will be needing it for a while if this isn't resolved in the upcoming interview with the attorney. 

 

You can use your states bar association website to find an attorney. You want one who is familiar with inadmissibility/waivers and Canada specifically. 

[JL & ML 20]

Dear @Villanelle, thank you so much for your detailed and thorough reply! I apologize for the lack of clarity. We were hit by so many things at once - COVID first, which hit everyone and added unbelievable complexity to people's lives... plus two small children, job changes, and I'll spare you the rest, just ordinary setting up a new life in a new country with a new spouse.

 

Looking through the files I sent USCIS yesterday, I found some inconsistencies, which explains further their confusion (and also lends favour to the "use a lawyer from the start" argument). I almost thought it was a hopeless case yesterday, but I also know the USCIS officer at the interview has the authority to approve or deny the permanent residency on the spot, and so if he said come back for a second interview, indeed we are being given grace here.

 

Thank you for all the useful points, I they are all gold.

 

1 hour ago, Villanelle said:

So question 1- did you disclose at the medical the drug use? If so and your medical was approved it was determined you have no drug issue preventing you from receiving the visa. If you can't remember you can attempt to contact whoever did your medical. Im not sure if they would give you a copy of it but they may be able to give you information contained in it in some fashion.  If you didn't disclose the drug use in the medical that could be the issue now. 

I don't remember anything about drug use at the medical. Was there a questionnaire? Again, at any rate, it was so long ago, and so I know no traces were found. My medical went through without a hitch, and I didn't hide anything, I simply followed the instructions to a tee.

 

1 hour ago, Villanelle said:

Another thing that stands out in your post is how you said "I admitted to marijuana use and being arrested once for assault, all in my home country." It is not clear if you disclosed (admitted) to drug use or a drug charge/crime. You said you paid a 70$ fine which means criminal element was involved, different from admitting to simply using it. This could be the issue as well. 

Yes, we were so overwhelmed, not everything was as consistent as I thought, in spite of how thorough we were. Having a lawyer from the start would have helped us prepare better. 

 

1 hour ago, Villanelle said:

You also mentioned the last time you used marijuana was 2006 2007. That's not 20 years ago. You also said I have no drug related charges which umm isn't a ticket for 70$ a drug charge? It wasn't 70$ for littering because you tossed the stub on the floor when you were done right? 

Good catch. The arrest for assault and subsequent discharge was in 2004, so almost twenty years ago. Correct, marijuana use went on until 2006 or 2007. As regards the fine for smoking marijuana in a park, what I meant was that in U.S. parlance, it was considered an infraction in Canada's eyes, not a misdemeanor, since the only condition was the payment of the fine; no court appearance, no jail time, etc.

 

1 hour ago, Villanelle said:

They also may ask for an updated medical which you shouldn't have any issue getting. This is another cost to you though. 

No trouble at all.

 

1 hour ago, Villanelle said:

If you have to do the waiver it can take 6months to a year for it to be processed. The only good news is most likely you will be past 2 years of marriage by the time the GC is approved so no ROC. You will definitely spend more money on waiver fees then ROC would've cost but it does help offset the total cost. You also will have a longer wait for Naturalization as you need to be a GC holder for 3yrs and that clock doesn't start until the card is actually issued.  

Yes indeed; in fact we are already past the two-year mark for marriage/green card/ROC!

 

1 hour ago, Villanelle said:

You can use your states bar association website to find an attorney. You want one who is familiar with inadmissibility/waivers and Canada specifically. 

Thank you for this helpful reference - will look there today.

[JL & ML 20]

14 hours ago, Ontarkie said:

Your court records still exist. The clerk only checked the online system and didn't want to go and dig through the big books. Your records are not digital and they would need to look through the books and find out where they are located and request that they are pulled. You will need to call the court house where you have your hearing and give the the closest dates you can remember for them to find them. 

Thanks, I just asked again today, my mom found all the old police documents from so long ago, I sent them to the court, they said they still didn't find anything; again, as you said it might be because they are not willing to rummage through paper files. At any rate, lawyer up! It will work out

[Villanelle 4,122]

 

Yes^^^ you were very lucky. I was originally worried you might have said something in the interview turning it into something larger unintentionally. This is why I suggested reading the guidance on drug charges. Marijuana is the only drug with waiver available but there are strict guidelines about what can be excused with a waiver.  I assume the amount (weight) wouldn't be an issue as you must have had a minimal amount to only get a ticket. But other guidelines say no trafficking which can broadly apply if you described in the interview that you 'bought it for a friend and was driving it to him.' Hes in another town so now one could argue you are/were involved in trafficking. Perhaps they simply need a document showing the amount/weight to satisfy the requirements they have to follow. 

 

But most likely this is going to fall under a misunderstanding (on your part) about how this was to be disclosed. At the medical I believe you either fill out a basic questionnaire or they might have just asked you various questions. Depends on the dr office procedures i suppose. But one of the questions is have you EVER used any drugs. If you did answer honestly the dr would have asked for more details.  If you explained you smoked once or twice its the Drs discrdiscretion how to handle it.  In Jamaica its absolutely 1 yr ban with drug testing.  Other places are more lenient.

 

If they did a drug test and it came back negative the dr most likely determined you had no drug issue making you medically ineligible. As I said there are various steps for someone to be ruled medically ineligible or not. it seems none occurred or you would have remembered.

 

Again they may ask for an updated medical. They shouldn't but they can say they need it or can't find it or perhaps they want it because it will help support the approval when it comes back acceptable/ no drug issues.

 

If you are currently using I would suggest you stop as even if it is legal where you live it is still a problem for immigration as federally its illegal and immigration is under federal.

 

2 hours ago, JL & ML said:

 

 

Good catch. The arrest for assault and subsequent discharge was in 2004, so almost twenty years ago. Correct, marijuana use went on until 2006 or 2007. As regards the fine for smoking marijuana in a park, what I meant was that in U.S. parlance, it was considered an infraction in Canada's eyes, not a misdemeanor, since the only condition was the payment of the fine; no court appearance, no jail time, etc.

This is why you need someone familiar with Canada specifically.  I am not, but I understand it's similar to the UK with a system of infractions or cautions or what not.  Many people have issues in determining if whatever it was is considered a 'charge' or 'crime' or however the US describes it.  This is why the instructions use broad wording along the lines of ever been arrested detained charged by any authority even if you were told records are expunged or removed.  

 

It's always best to just disclose everything and let them sort it out which it appears you tried to do. You said you found some discrepancies which you should discuss with the attorney.  I am assuming as Boiler already posted it was somehow overlooked at the K interview.  When asked about arrest records you said you submitted them and I suppose the Officer didn't realize there were 2 'criminal' issues that needed to be addressed. 

 

But you want an attorney who knows the criminal system in Canada and how your offense should be viewed by USCIS. Make sure the attorney you choose is also familiar with the district you live in for immigration court purposes.  The US is divided into several circuit district courts and they don't always agree. If you are on a border of 2 districts most attorneys will be familiar with both.  

 

Again depending on how it's viewed will determine what needs to be done about it if anything. 

 

Most lawyers won't speculate but I am not a lawyer so heres my speculations. Perhaps others have additional input.

Starting with the best case:

Scenario 1 would be they determine it's a non issue due to how it converts and you didn't misrepresent at any point.

 

Scenario 2 would be it does convert to something and as I said they just need documentation to show it can be  waived and then you have to go through the waiver processing. This can also include them determining you did misrep in some form and would be addressed with the waiver as well. 

 

There are also various policies about being underage as well as what can be described as a get out of jail free card for excusing certain minor offenses but I am not sure how that would apply here if it could at all. 

 

Where you are in the process impacts what applies to you. If it's an issue for 485 approval various policies apply but if it's about the k approval thats a different problem with different policies. Which brings us to Scenario 3 the worst one. 

 

Scenario 3 is they decide your K was issued incorrectly. They can revoke the K approval.  Thats ok. Would suck big time but not the end of the world.  You would have to submit a 130/485 package immediately. You will lose your current work authorization and would have to wait for a new EAD to be issued. You can attempt to expedite the EAD.  Your attorney might be able to transfer the pending 485 to the newly filed 130 but to do so requires both sides to be active.  Meaning once the 129f approval is canceled you can't switch. So the 129f needs to still be active.  A 130 needs to be filed and be in active status.  A transfer request can be made and is almost always given as a courtesy but they are under no obligation to do such. Not all attorneys are familiar with such unless they specialize in removal proceedings or other complex issues.

 

Other people in similar situations choose to speak to their employer for some time off. Then there are those who say nothing because unauthorized work is forgiven and they will not need to update their work authorization with their employer for some time so they figure they will have a new EAD card by then.  The employer would be the one facing penalties for you working w/o valid EAD. Not sure what your profession is as in some there can be long term repercussions if it's discovered you worked w/o auth and didn't update them on the change in your work status. If you have a contract there may be a clause about such in it.

 

The good news is they seem to have determined the marriage is bonafide which means this is most likely just a paperwork type issue rather than a prove you are telling the truth type issue if that makes sense. You used wording of they are going to seek inadmissibility based on what you did as a teenager which implies the 129f is fine and the issue lies with the 485 guidelines of drugs/crimes/misrep etc but you can also be found inadmissible because your underlying petition (129f) is voided because it was done wrong. 

 

That's why I suggested writing out everything you can remember being said in the interview. You may be interpreting what was said wrong,  hearing what you assumed or simply not able to read between the lines and decode what the Officer was trying to tell you 'off the record' about why you would want to bring an attorney with you.  I would also bring your spouse even if they don't specifically demand her to come if possible. They might not want to speak to her but it's better if she's there in case they do.

[JL & ML 20]

Hi @Villanelle thanks again. Basing myself on what I disclosed on I-485, in spite of all this the officer still felt I had a chance and invited me to come back with a lawyer, otherwise he would have denied me right then and there. So that's the only thing that's making me hopeful (and it's the only chance I have, anyway).

 

30 minutes ago, Villanelle said:

If you are currently using I would suggest you stop as even if it is legal where you live it is still a problem for immigration as federally its illegal and immigration is under federal.

I stopped using in 2006 or 2007. I know it's hard for people to believe that people can change, but I truly did change, my life was transformed, call it what you will, but I'm not the person I used to be. There's no legal term for that maybe, but it's the truth.

 

30 minutes ago, Villanelle said:

But you want an attorney who knows the criminal system in Canada and how your offense should be viewed by USCIS. Make sure the attorney you choose is also familiar with the district you live in for immigration court purposes.  The US is divided into several circuit district courts and they don't always agree. If you are on a border of 2 districts most attorneys will be familiar with both.  

Duly noted!

 

30 minutes ago, Villanelle said:

There are also various policies about being underage as well as what can be described as a get out of jail free card for excusing certain minor offenses but I am not sure how that would apply here if it could at all. 

I am hoping this can be at least considered a factor. In Canada, under the Criminal Youth Justice Act,, *most* offenses, if any, are wiped from your slate once you turn eighteen. I just spoke again with the court today, located in Ontario, where I had my appearance, and in spite of all the information I provided them, they still couldn't find anything on me. Maybe it's just a paper file buried away somewhere and hard to find.

 

30 minutes ago, Villanelle said:

Scenario 3 is they decide your K was issued incorrectly. They can revoke the K approval.  Thats ok. Would suck big time but not the end of the world.  You would have to submit a 130/485 package immediately. You will lose your current work authorization and would have to wait for a new EAD to be issued. You can attempt to expedite the EAD.  Your attorney might be able to transfer the pending 485 to the newly filed 130 but to do so requires both sides to be active.  Meaning once the 129f approval is canceled you can't switch. So the 129f needs to still be active.  A 130 needs to be filed and be in active status.  A transfer request can be made and is almost always given as a courtesy but they are under no obligation to do such. Not all attorneys are familiar with such unless they specialize in removal proceedings or other complex issues.

Interesting, thank you.

 

30 minutes ago, Villanelle said:

That's why I suggested writing out everything you can remember being said in the interview. You may be interpreting what was said wrong,  hearing what you assumed or simply not able to read between the lines and decode what the Officer was trying to tell you 'off the record' about why you would want to bring an attorney with you.  I would also bring your spouse even if they don't specifically demand her to come if possible. They might not want to speak to her but it's better if she's there in case they do.

Helpful. I don't know why he would tell me to come back and bring an attorney unless he meant what he said. I mean, if USCIS has already decided to expel me from the U.S. for mistakes I made when I was a teenager, deemed serious in their eyes but committed by a person very different from the one I am today - I understand they're under no obligation to do anything and that my being here is a privilege, not a right; they have their own designations as to the seriousness of things, but again - if they deem these teenage mistakes of mine committed 15 to almost 20 years ago to be grounds for inadmissibility, and they've already made their decision about denying me permanency, then why not deny me immediately and order me to leave the country? It's a special form of malice to make your enemy think he has a chance, just to watch him struggle and squirm before you utterly annihilate him, and I don't suppose this to be their intention here. The officer looked me right in the eye and said, "Come back with a lawyer. I really recommend it." I have to take him at his word as it's all I have to go by, and that means if I bring a lawyer, I have a chance to stay in this country and not be indefinitely be separated from my new family and be the cause of years of emotional and financial hardship for them.

 

My wife wants to be there, too. She will come. We might even bring our two children, aged sixteen months and four months. And if I can bring character witnesses, I will definitely invite friends and family members, too.

Edited May 9, 2022 by JL & ML
clarify text at the bottom of the page

[Boiler 45,467]

they can at worst refer your case to an Immigration Judge but that is a process that takes years, and from what you have said the worst case scenario is that you will be asked to file a waiver

[Villanelle 4,122]

 

 

 

 

On 5/9/2022 at 3:28 PM, JL & ML said:

My wife wants to be there, too. She will come. We might even bring our two children, aged sixteen months and four months. And if I can bring character witnesses, I will definitely invite friends and family members, too.

Don't bring an entourage! Your wife is fine and if you need to bring the children because you don't have child care available thats ok. But this is not a hearing where character witnesses are required.