Are there U.S. immigration consequences for a withdrawn criminal charge?

QUESTION: Four years ago, I received an absolute discharge in Ontario.  I have crossed into the US numerous times since then with no problems, except being stopped and questioned once but ultimately being allowed to continue.  Recently, I was arrested for "possession of a controlled substance," however, those charges are in the process of being withdrawn.  Am I still eligible to travel to the United States once these charges are withdrawn?  I have never been "convicted" of a crime.  Please let me know.

REPLY: Thank you for your question.  I cannot provide you with case-specific legal advice without first reviewing the documentation about the criminal matter, however, I have provided you with some information that should help you.

Criminal charges that have been withdrawn should not matter for U.S. immigration purposes.  Only “convictions” as that term is defined under the U.S. Immigration and Nationality Act (INA) § 101(a)(48)(A), which states: 

The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where— 

  1. a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
  2. the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

Since withdrawn charges do not involve any finding of guilt, they are not “convictions” for immigration purposes and cannot be used to render you inadmissible to the U.S. 

If you would like to submit additional information about your case and receive a complete professional analysis, please consider contacting my office to set up a consultation


I-212 vs. I-192

QUESTION: I'm from Canada but studying in Mexico.  Living on the border city, I have been crossing once every 2 weeks  to visit my mom (naturalized US citizen), my church, friends and working on some video projects for the school.  Last time I crossed with my car they arrested me and issued me an order of expedited removal and deported me to Canada because they believe I was working in the US. Now I can't enter the US for the next 5 years.

I believe my only options to reenter before 5 years is to fill Form I-212 (permission to re-apply for admission) and/or Form I-192 (unlawful presence waiver), but I am not sure.  Do I just fill one of the two forms, or are both are needed together?  If  I file both forms does it double my chances?  How do these two forms work together?

If I get  permission to reapply, do I need to apply for a B-1 or B-2 visa? Or am I exempt because I am Canadian? What will be the next step?

REPLY: Thank you for your question.  While I cannot offer you case-specific advice without first reviewing your case in more detail, I can provide you with some general information that may help you.

Individuals who have been issued orders of expedited removal are barred from entering the U.S. for a period of five (5) years unless he/she is granted permission to reapply for admission to the U.S.  This is applied for on Form I-212.  The Form I-212 application must be approved before an individual previously removed can return to the U.S. within the 5-year period, regardless of nationality/citizenship.

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Removal for Aggravated Felony

QUESTION: My mom came to California from the South Pacific islands (Tonga) on a Visa in 1981, then later she got married to my dad, had my sister in 1983 and then eventually she got her green card. She later had 5 more children, including me. She was deported in Dec 2000. She was charged with an Aggravated Felony for stealing, forging money from her babysitting/housekeeper job in 1996 and then a caretaker job in 1998. She had a gambling addiction, but it wasn't even that much money that she took from those years, but since then she's been back in the islands living good without getting in trouble. She's a church lady and a good mom, she just was addicted to gambling that's all. She also still has a bench warrant from her probation thing and its still active till this day over here, but I don't understand why probation didn't know she was deported.  Anyway, my dad just filed for her, 1st the I-130 form, and it has been approved since a month ago. Now what else do we do? Probable get a lawyer? and file for waivers maybe? We're trying to get her back here to reunite with her family.

REPLY: Thank you for your question.  It sounds as though your mother has quite a complicated immigration history.  Given this history, it will be important to have her case reviewed by a competent immigration lawyer before taking any steps toward her return to the U.S.  While I cannot offer specific advice without learning more about the case, I have provided some general information below.

Individuals who are ordered removed from the U.S. based upon a conviction for an aggravated felony are inadmissible to the U.S. for life unless he/she obtains permission to reapply for admission to the U.S.  This application is made on Form I-212.

Most crimes involving an element of theft and fraud are deemed to be crimes involving moral turpitude (“CIMT”) under U.S. immigration law.  Individuals with CIMT convictions are also inadmissible to the U.S. for life unless they obtain a waiver of inadmissibility.

There are two (2) types of waivers available for CIMT convictions. 

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The Law Office of Sarah E. Murphy Now Open!

As of March 12, 2012, I have officially left the law firm of Serotte Reich Wilson (SRW) and have started my own law practice.  I am still located in Buffalo and provide the same legal services as when I was employed at SRW.  My new contact information is:

Law Office of Sarah E. Murphy
2316 Delaware Avenue #294
Buffalo, NY 14216
Phone: 716.464.2296

Thank you to all of my followers for your continued support!


I-601 Approved!

Notice of approval of a Form I-601 - "extreme hardship" - waiver was received in the office today!  The waiver was required in order to overcome unlawful presence.  More details to come!