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Thread: Need Advice. Pre-Trial Diversion Program.

  1. #1
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    Need Advice. Pre-Trial Diversion Program.

    So my husband & I are in the process of getting his green card. We've submitted paperwork already.
    But he had an arrest for possession of marijuana in 2010. It was under 30 grams so he would be eligible to file a waiver.
    But we aren't sure if he needs one because we think he did a pre-trial diversion program.
    We know that it was dismissed. He took a drug education course & did community service but he doesn't remember if he entered a plea.
    If he entered a plea then we need the waiver but if he didn't & it was a pre-trial diversion program then we need the documents to show that to USCIS when we have our interview.
    This is where we are stuck.
    We've called the county where he was arrested & they tell us that they don't know & that they've sent us all of his documents relating to the arrest.
    But we've shown the paperwork to two separate lawyers & they've both said that there should be more.
    We've called so many places & no one is giving us answers.
    The criminal attorney who worked the case for my husband could probably give us some answers but he's obviously washed his hands of it because he won't answer our calls & when we text his only response is, "It was dismissed."
    Who else can we try to contact to figure this out?

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    Rather than calling the county court, why not go there personally and give the court clerk the case number and ask to review the case file. They're obliged to provide it. This file would have every little minor details of the case including initial criminal complaint filed by the police, any warrants issued, court appearance notices, plea bargains and the transcript of what was said & done in front of the judge.Then you can have certified copies of the entire case file from the court at the spot.

    Most attorneys keep their case records roughly around 5-7 years.

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    Because it's in a whole different city but by the looks of it we're just going to have to take a road trip soon.
    We've already requested his entire file twice but I guess we don't have many other options right now.
    We finally spoke to the criminal attorney who worked the case & he told us that there was no pre-trial diversion program but also no plea was entered.
    He said they never went to trial & that my husband simply did community service & a drug education course & it was dismissed.
    I'm so confused. Our immigration lawyer told us it could only be one or the other but this guy is saying it was neither.
    So what would that even mean?
    On the documents that we have from the clerk's office it states that it was dismissed & the reason was checked as "other" with "community service & drug course completed" written next to it.
    I'm really hoping that this wasn't a conviction & we won't have to file a waiver, I just don't know how we're going to prove it.
    According to the immigration lawyers we've spoken to the documents we have aren't enough proof of a conviction or not.

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    FYI... even if a record is expunged immigration can see it. They aren't supposed to "hold anything against you" however it paints a picture for them (character).
    Be joyful in hope, Patient in affliction, Faithful in prayer....Romans 12:12

    No matter what happens, or how bad it seems today, life goes on, and it will be better tomorrow -- Maya Angelou

    I've learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel -- Maya Angelou

    No advice given on this site is to be considered legal advice.
    Please consult with an immigration lawyer.

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    Yes, I know that.
    But if proving that it wasn't a conviction keeps us from having to file a waiver then it's worth doing.
    It'll save us from waiting even longer for his green card and spending another $3,000.

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    Drugs only requires reason to believe.
    Nothing in life is guaranteed, especially anything to do with Immigration.

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    If what your criminal attorney told you is correct, it's possible that instead of going to trial, prosecutor handled the case in his own office, downgrading the charges as civil infraction and giving some community service + classes. That could explain:
    there was no pre-trial diversion program but also no plea was entered
    but every county, state has such varied processes, you'll only have clearer picture once you've the complete case file.

    Also beware, criminal ineligibility can occur not just based on final disposition of the case but the initial charges brought against the alien may also play a factor. For example, a felony criminal complaint that was later prosecuted & convicted as misdemeanor, USCIS may still treat it as felony for immigration purpose.

    It's better to carry an information overload in your hands rather than a half baked cake when walking into the immigration office. Do not leave anything up for chance where possible criminal aspects are involved in the immigration case.

    Quote Originally Posted by y14gemini View Post
    FYI... even if a record is expunged immigration can see it. They aren't supposed to "hold anything against you" however it paints a picture for them (character).
    Not sure what you mean by that. If there's even a remote chance of criminal misconduct found in alien's record, immigration Will for sure hold it against the alien with all its might.

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    We've now spoken to the criminal attorney & our immigration lawyer.
    They've told us it was a pretrial motion to dismiss that was granted.
    So no pretrial diversion program & no plea was entered but also no conviction.
    However, I understand what you are saying.
    Ultimately it will be at the discretion of the USCIS officer that has our case.
    & we gave them all documents relating to the arrest when we first submitted our paperwork, we left nothing out.
    Up until we spoke with a lawyer about filing the 601 for us, we thought it was a conviction & were prepared to file the waiver.
    But now we have to get a letter from criminal attorney & the county stating that it was dismissed before they went to court to prove there was no conviction.
    Hopefully the USCIS officer accepts it & things work out for us.

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