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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 95539
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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I am a natural-born Canadian citizen currently in the US. I

Customer Question

I am a natural-born Canadian citizen currently in the US. I was (very) recently charged and convicted of a felony and am set to do a year of jail (while potentially obtaining work release) and set to do 8 years of probation (possibility of early termination [~4-6 years]. The original charge was possession of child pornography but it was withdrawn and plead down to 1 count of aggravated child abuse, thus not mandating me to be a sex offender. Some questions that I have are: If after my sentence is complete, will I ever be able to return to the US if I go to Canada? Would it even be possible for me to even return to Canada (had my American citizenship declined... arrested right before being sworn in)? If I do return to Canada, would I be able to hold a licensed job (more specifically, a dentist) even though it was an American charge? Also, would there be any issues in renewing my green card (expires in 2010)? Thank you so much.
Submitted: 5 years ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 5 years ago.

I can only answer the U.S. parts of your questions. You would have to post a separate question in the Canadian Law forum for the answers to your Canadian law questions.

 

I believe that this crime is classifiable as an aggravated felony. As a result, you are deportable from the U.S. So at some point you would be placed in removal proceedings. If you leave the U.S. and go to Canada before this happens, you would be stopped from entering as a resident and would most likely be placed in removal proceedings at that time.

 

I would hazard a guess as to if you can return to Canada, I would say probably so as you do not lose your Canadian citizenship due to crimes you commit. Would not be able to even hazard a guess as to if you would be able to get licensing in Canada as a dentist.

 

And yes, when you try to renew your green card, if they haven't done it before, this is the time that they would place you in removal proceedings to process your deportation. I'm sorry, I wish the news was better. Your criminal attorney should have been aware of the immigration consequences of entering into that plea. Perhaps it is not too late to try to set aside that plea for continue to fight your case.

Customer: replied 5 years ago.

Well, I have already met with my family's immigration attorney down in Miami, and apparently, since I have been a permanent resident for over 5 years, I am not considered deportable.

 

Could you please send me a link to someone who would definitely be able to answer these questions as opposed to hazarding a guess?

 

Thank you sincerely XXXXX XXXXX response.

Expert:  Guillermo J. Senmartin, Esq. replied 5 years ago.

Unfortunately, I disagree with your attorney down here in Miami (I am down here as well). I have seen persons that have been here 20+ years as residents and they still get deported for an aggravated felony.

 

And no, I cannot give you a link. As I said, you would need to post your Canadian law questions in the Canada Law forum. I was trying to be helpful with the guess (an educated one, I might add). Sorry I was not helpful in that regard.

 

But as far as deportability, let me quote law for you so you understand how wrong your immigration attorney is. The following crimes are considered aggravated felonies and as such as deportable offenses regardless of how much time you have as a U.S. Lawful Permanent Resident:

 

INA §101(a)(43)(A) rape and sexual abuse of minor regardless of the sentence or date of conviction

 

INA §101(a)(43)(F) a crime of violence for which the term of imprisonment is at least one year;

 

INA §101(a)(43)(I) offense relating to child pornography

 

Now since your crime was reduced in nature to aggravated child abuse, you may not have to worry about (A) or (I), but I think abuse would fall under crime of violence and since you were sentenced to 1 year in prison, this would be enough to get you deported from the U.S.

 

I hope you understand the gravity of the situation. I don't like giving bad news. If you don't believe me, just do a Google search for "Aggravated Felonies" and deportation or removal. You will find plenty of material to read. If you don't trust the internet (and you shouldn't), go see another immigration attorney for a 2nd opinion (or 3rd in this case), but make sure that the immigration attorney that you see has plenty of experience in criminal matters. There are different types of immigration attorneys and the one you spoke to may have a great deal of experience in business immigration or family immigration, but very little in immigration consequences of criminal activity or removal proceedings. There is an expert on this site that has double or more the years of experience than I do in "immigration law", but most of it is in business immigration. She doesn't even touch the criminal immigration questions because she does not have experience in them.

Customer: replied 5 years ago.
Sorry to be so brute about everything, I am just trying to find the best information as possible. In regard to (F), my sentence is actually 364 days of jail (with one already done - the day I was arrested) so the sentence is actually less than 1 year. How much of a difference does this actually make?
Expert:  Guillermo J. Senmartin, Esq. replied 5 years ago.

It makes all the difference in the world. But you will need to close closely at the final court disposition of the case because 364 plus one day served would still be considered 1 year. It is worrisome that it is called a felony because a felony is traditionally anything in which a sentence of 1 year or more may be imposed.

 

The good thing is that the law states that for a crime of violence to be considered an aggravated felony, the sentence imposed must be 1 year or more. It does not matter what may be imposed (as would matter in other types of crimes and situations). So if your sentence was truly less than 1 year, you just skate by. But you REALLY need to make sure about this by looking at all the dispositions and final orders.

 

Now the other thing is that this crime could and probably would be considered also to be a Crime Involving Moral Turpitude. This makes you inadmissible to the U.S. What this means is that while inside the U.S., you would be ok, but if you left the U.S. and tried to be admitted again, they would not admit you because you would be inadmissible. It doesn't really make sense, but that is how the law is written. Staying here, you are safe, traveling and all bets are off.

Customer: replied 5 years ago.

Okay, it's just the 364. The day served would make it down to 363, even though it is a second degree felony. So it will be the county jail - not prison. Apparantly my case was observed as "highly unusual". Is there a period of time in which I would be inadmissable, or is it indefinite or even permanent? Or is that usually up to the proceedings when I try to renew my green card? Also, am I allowed to apply for American (dual) citizenship again or am I never allowed to be an American citizen?

 

Also, are there ways to argue against the "moral turpitude"? Such as (but not limited to) psychological evaluations (from a therapist or the abel screen), polygraph examinations, proof of therapy?

Expert:  Guillermo J. Senmartin, Esq. replied 5 years ago.

Ok, that is good. It is indefinate/permanent inadmissibility. The only way out would be to get your U.S. Citizenship.

 

Unfortunately, I have not seen arguments against moral turpitude work in immigration proceedings on psychological evaluations. These are things that are usually argued on the criminal court proceedings in order to get the charges dismissed, nollo prossed, or reduced.

 

As to whether or not you can apply for U.S. Citizenship, I would wait at least 5 years from the date of the commission of the crime before applying. During that time I would get involved in community projects, volunteer my time to good causes, etc. etc. Build up a case of good moral character so that when the time comes, even though they cannot automatically deny you due to the conviction because it has been longer than 5 years, they still have discretion to deny you if they think you do not have good moral character.

Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 95539
Experience: 10+ years of experience in various aspects of U.S. Immigration Law.
Guillermo J. Senmartin, Esq. and 2 other Immigration Law Specialists are ready to help you
Customer: replied 5 years ago.
Thank you for the advice. Now I just need to find out whether it's worth it or not to pursue dentistry in the hopes of practicing in Canada after hopefully obtaining American citizenship.
Expert:  Guillermo J. Senmartin, Esq. replied 5 years ago.
To make sure you get a good professional answer, just post that question on the Canada Law forum. Good luck to you!
Customer: replied 5 years ago.
I'm sorry, but I feel retarded. How do I get to the Canada Law forum? Or is it a separate website?
Expert:  Guillermo J. Senmartin, Esq. replied 5 years ago.

It is here. I could try transfering this question to the Canadian Law forum, but I am not sure if it would work. I really don't have any type of control on the backworkings of the website, I just answer the questions from the comfort of my own home.

 

You can just try posting a new question and specify Canada law. If it drops you back into here, I can transfer that new question easily to the Canada Law forum.

Customer: replied 5 years ago.
Thank you. Please try that for me and I will continue to search around. Thank you again.
Expert:  Guillermo J. Senmartin, Esq. replied 5 years ago.
You are very welcome. Good luck!

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