My friend was pulled over for sloppy driving, I was in the back carrying 3g marijuana. The police smelt it & asked to search the car. 0.25mg MDMA was found in the car so the driver was arrested & the car taken away. The officer now had to give us a ride home so searched us "for weapons" before we were allowed to get in the car. He found the 3g marijuana in my pocket; I was not arrested but issued a ticket with no fine option & a court summons for June 10th. Trouble is I am English and back in England now (I was visiting friends under a Visa waiver).I can post guilty by mail, but a conviction for a drugs offence will ruin my future chances of entering the US again – & I am hoping to begin my postgraduate studies in America, September 2011. Can’t afford a lawyer so was hoping to plea bargain with the DA by phone as I know I must avoid a conviction at all costs.1) Was I searched illegally?2) Can anyone with *IMMIGRATION KNOWLEDGE* please advise? Is deferred prosecution essential?
State/Country relating to Question: Colorado
As far as I understand, deferred adjudication would mean a guilty plea, which can be tantamount to a conviction for immigration purposes? I was hoping to return to the US over summer with a J1 visa on a work-study program so this is not ideal. However, if this was all I was offered and my probationary period was completed successfully and case sealed, could my visa and travel options still be affected in the future?
And am I right in thinking that only deferred prosecution, with no guilty plea entered, would result in no travel restrictions during my probationary period? Are there risks that even this option could result in travel restrictions, either during or after the probationary period?
Lastly, what is the likely probationary period I will be offered? 6/ 12 months or more?
Your advice on this matter would be hugely appreciated as I am fully aware that one wrong move and I could potentially be banned from the US forever! Thank you very much.
On the immigration side of your questions, a state conviction is generally a conviction for immigration purposes if it 1) there was a finding or admission of guilt and 2) there was an imposition of some type of limitation of your liberty.
So the important question is whether the Colorado deferred prosecution requires a plea of guilt or a finding of guilty by the Crim Judge for them to then give you probation to wait out.
If so, then it's a conviction.
If not, then it's not a conviction for immigration purposes.
Also generally, a conviction for a violation of a controlled substance will make you inadmissible forever. The only way out of it is if you can apply for a 212(h) waiver of inadmissibility if you can prove that your spouse, parent or child that is a US citizen or green card holder would suffer EXTREME HARDSHIPS if you are denied the visa. Tough one.
Now, one final thing. If you already have your J1 and you're coming in the future. I strongly suggest that you fly into the US by touching down in the Ninth Circuit (Seattle, San Francisco, LA). This is because federal immigration law in the Ninth Circuit has been interpreted a little different. Here, a state rehabilitative statute like the one in Colorado can be considered good for immigration because it is similar to the Federal First Offender Act. In the Ninth Circuit, the Court of Appeals has stated that the FFOA and a state similar statute clean out any first conviction of simple possession. So, here, you would be ok. Funny!
Now, as to whether you were illegally searched, is is most definitely a question for a criminal attorney helping you out to get out of the conviction in the first place and has no bearing on the immigration side. All the immigration side is concerned is whether you got a conviction or not.
I wish you good luck.
Does this mean that if I was given deferred adjudication where I had to admit guilt, that even once the probation period was over and the case sealed, I would still have a conviction and be inadmissible forever? Or would sealing the case effectively delete the conviction?
Also I am not quite sure that I understand what you were saying about the different rules in the Ninth Circuit. I do not already have a J1, was hoping to apply for one after my case had been heard, depending on the outcome. Are you saying that even if I was convicted, as it is would be my first conviction I could still fly into the US if I flew into the Ninth Circuit? Or is this only a loophole I could exploit for the time being, if I had already been granted a visa?
Thank you again for all your help.
Yes, if you admit guilt, then you have a conviction for immigration purposes and sealing would do nothing.
You got it right, the whole thing with the Ninth Circuit is a little loophole that you could have exploited if you already had the visa, because when you fly in at the airport, the deciding officer would be in the 9th Circuit and would have to apply the (very forgiving) 9thCir law.
Unfortunately, since you still have to apply for the Visa at the US consulate, they will apply the regular (tough) law and will consider a deferred adjudication with an admission of guilt as a conviction and there will be nothing you can do to change that.
So you must make sure you do not admit guilt nor are found guilty. But, I guess you could try to get the case dropped because you're out of the country, I don't know, I'm not a criminal attorney.
Sorry to be the bearer of bad news. I hope this clarifies more and I wish you best of luck.
Last question - could I apply for a visa before my court date? Under the visa waiver scheme I would still be able to travel pre-court date, as far as I am aware, but will I asked about impending court dates in a J1 visa application/ do you think this will stop me obtaining a J1 visa?
You probably would be able to enter the US on a visa waiver. But when you apply for the J1 they will ask you if you have ever been arrested/charged for any crime, so you will have to tell them that. Then they will probably put the adjudication of the J1 until the criminal issue is resolved.
I wasn't arrested, but does the ticket count as being 'charged' with the crime?
When the police stopped you, that's an arrest.
The ticket probably is a charge. Unless, in Colorado there is an "infraction" for possession of 3g of marijuana. In that case, it could be only an "infraction" (read: under criminal procedure they only have to show 50% of guilt) and not a "crime" (read: under criminal procedure they have to show "beyond a reasonable doubt.").
Do you know if you are charged with an infraction or a misdemeanor?
I wasn't read my rights at any time, are you sure it is an arrest?
I am not entirely sure, but I believe a drugs possession charge is a petty misdemeanour.
It's an arrest.
As to whether it's an infraction or a misdemeanor, one needs to look at the ticket, find in the Colorado Penal Code and see what it says. I don't have enough information based on the above information to determine if it was an infraction or a misdemeanor.
18-18-406(1) states that: "Any person who possesses not more than one ounce of marihuana commits a class 2 petty offense and, upon conviction thereof, shall be punished by a fine of not more than one hundred dollars."
Ok, it appears that a class 2 petty offense may be an infraction and not a "crime". There are three issues to be considered 1) right to a jury trial; 2) right to counsel; and 3) standard of proof.
1) the right to a jury trial seems to exist in a statutory basis, which can be sufficiently close to a crime.
2) there is no right to counsel, which can and must be argued that is the very basis of all other guarantees and its absence makes the class 2 petty offense sufficiently distinct from a crime; and
3) without further research I cannot detect easily any difference in the standard of proof.
So there appears to be sufficient differences to argue that it is an infraction and not a "crime" so you can say in your application honestly that you never had a crime and argue with the officer that it is an infraction. You are arguing pretty much what happened in Matter of Eslamizar:
Read it to understand a little better on how you can argue the fact that there is no right to counsel and maybe a lower level of proof (need more research on this) to argue it's not a "crime" so it's not a "conviction". Ok, this is all a lot of information. If you need more than this, research is involved and I suggest you hire a lawyer from this point on if you'd like. I wish you best of luck.
Hi, I just received an email update and realised I had never paid you for answering my question! Thank you again for all your help. I hired a lawyer who was able to secure me a dismissal, conditional on the completion of 48 hours community service by my next court date on October 1st. After this I can petition to have my record sealed and travel won't be a problem.The deadline for the work/study program this summer has passed, but I would still like to visit my friends in September before I start my final year of university in England. However, I was turned down for travel under the visa waiver program as I had to declare my arrest. What do you think my chances are of actually being granted a B2 visa (for Tourism, vacation, pleasure visitors) for travel for visit my friends for a month?Thanks again for all your help, and I promise this is the last thing I'd like advice on!
Oh good, I'm glad for you.
Honestly, your chances of obtaining a B1/B2 now are still not very good because they stand generally to be similar to the VWprogram. They probably want to see everything sealed first and they probably will want to give some time to see if you commit other crimes in the meantime.
But if you put together a strong package of how you are now very active in school work etc and that it was only a minor mistake in the past, then after the crime is vacated, you might stand a chance.
Please note that my answers I gave you were very involved and I would very much appreciate if I could be rewarded for the time spent answering your questions.
I hope my answer was useful and that you "accept" my answer so that I can be rewarded for my efforts in this discussion forum by pressing the green button.I do wish you all the best and please consider dropping a feedback (hopefully a positive one!). Thank you.
Almost 10 years practicing US immigration law. Hablo español, de veras! Eu falo português.
Thank you for your honesty, and for all your help in this matter :)
After paying $1200 to hire a lawyer, who got me a dismissal, and a further $700 to request that my record be sealed so that my arrest would no longer be on my file, I have just been told that I was never arrested when I was given the ticket.This is in contradiction with what you said. Have I just paid out $700 for nothing?
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