IMMIGRATION HELP NEEDED . My husband has 2 felonies but were discharged under the first offenders act in '02 PLEASE READ !

Asked almost 2 years ago - Atlanta, GA

I am a us citizen and my husband and I married in 2002 and have two children together. After we married he was arrested,charged with possession of a controlled substance and a firearm during the commission of a crime. He was sentenced under the 1st off Act and ordered seven years of probation for both offenses, after two years he received a letter, the case had been discharge and completely exonerates the defendant of any criminal purpose and shall not affect any of his civil rights or liberties. In 2007 ICE removed him from our home in the middle of the night and later deported. We tried to live in Mex with him but the economy and violence forced him to make us leave. We need him here. Does it seem likely a waiver would be granted? What can I do? Families shouldn't be ripped apart.

Attorney answers (1)

  1. John Arnold Steakley

    Contributor Level 19

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    Answered . You need to call us immediately. In most instances, little may be done to lessen the immigration consequences of a conviction. Convictions discharged under Georgia's First Offender Act, where the intent is to render the defendant without a criminal record, are still considered "convictions" for immigration purposes, and will not help you avoid immigration consequences. Any post-conviction relief that is given in an effort to prevent immigration consequences will be ineffective, and the conviction will stand for immigration purposes.

    You are also deportable if you are convicted of two or more crimes involving moral turpitude (not arising out of a single scheme of criminal misconduct) at any time after admission to the United States. The phrase, "single scheme of criminal misconduct," usually means that the crimes are performed in furtherance of a "single criminal episode" or that the two crimes flow from and are the natural consequences of a single act of criminal misconduct.

    In most instances, only those criminal charges that result in convictions trigger immigration consequences. The Immigration and Nationality Act (INA) broadly defines “convictions” for immigration purposes. The INA defines a conviction as:
    1. A formal judgment of guilt entered by a court, or
    2. a plea of guilty or nolo contender, or
    3. an admission to sufficient facts to warrant a finding of guilt and the judge has ordered some form of punishment, penalty, or restraint on liberty to be imposed.

    The INA considers the entire time ordered in confinement (including sentences of confinement “to be served on probation”) and does not subtract any probated or suspended time or consider whether you actually spent any time incarcerated. The INA defines even those convictions entered under state rehabilitative programs, such as deferred adjudications, as "convictions" for immigration purposes.

    Adjudication is deferred when a judge allows you to enter a plea of nolo contendere or guilty. The only instance when a deferred adjudication is not considered a conviction is when the sentencing court merely orders the defendant to pay court costs.

    The INA considers an adjudication a conviction for immigration purposes if it meets a three-prong test:
    1. There has been a judicial finding of guilt;
    2. the court takes action that removes the case from those which are pending for consideration by the court, orders you fined or incarcerated, or suspends the imposition of the sentence; and
    3. the action of the court is considered a conviction by the state for at least some purpose.

    Therefore, if the court merely orders you to pay court costs, the conviction is not a conviction for immigration purposes. Georgia's First Offender Statute is a deferred adjudication program, so the INA considers a "guilty" plea entered under the First Offender Program to be a conviction.

    Criminal charges that are resolved through pre-trial diversion programs, however, are not considered convictions. Thus, by completing a pretrial diversion program, you are not making an admission of guilt, the first prong of the test will not be met, and the completion of the pretrial diversion program will not be considered a "conviction" for immigration purposes.

    The best attack is to often attack the original conviction, but you must act quickly if there is any hope.

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