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QUESTION 1:

How likely will my case be dismissed or the charges dropped?

I am a permanent resident for 8 years (divorced with IR-1 status on green card) and want to marry a Peruvian citizen and bring her into USA to live with me. Is it best to change my status from permanent resident to US citizen to speed up this process? What is the waiting time (prox.) to get our I-130 approved with me being a permanent resident vs. me being a USA citizen? I am visiting her in December in Peru; would it be best to start the process at US Embassy or consulate in Lima while there? I could use some advice.

RESPONSE FROM ATTORNEY KIMBERLY J. TRUPIANO:

There are other questions I would want to ask you in a consultation so please realize that this is not advice. Some questions would include: Was your wife was ever in the United States before? If so when and how did she enter the United States each time? How long did she stay in the United States? Does she have any criminal history? (We ask everyone this!)

The advantage of applying for her as a United States citizen is that you can avoid having her wait in line. To see the expected wait time for her if you apply for her as a legal permanent resident, you should refer to the Visa Bulletin. If you applied for her as a legal permanent resident, it would fall under Second Preference – A (that is, F2A). As you can see, the visas that are currently ready to finish their consular processing for countries like Peru were first filed (priority date) on April 15, 2014. The line does not move month to month so you would have to look back to at some prior Visa Bulletins to see how fast this F2A line has been moving.

Once you marry her and she is your spouse, if you file a solid Alien Relative Petition as a legal permanent resident (that is, with lots of organized, relevant evidence of comingling of funds and other evidence that this is a real marriage – we would help you with this list of evidence if you hired my law firm), then later your I-130 could be converted to an immediate relative status (so she would not have to wait in line anymore). So that would help you get it up in line faster. You have to keep in mind that to obtain naturalization it can take around 6-8 months assuming there are no complexities. I would have to run some more questions by you before I could determine your eligibility since there are more factors of eligibility besides just being a legal permanent resident for over five (5) years.

Generally, if the naturalization application is done well, it takes around six (6) months for adjudication with USCIS. Then, the consular processing for a spouse visa takes around three (3) months after you have provided the support documents necessary. While your I-130 is being processed, we would be working with you on that list if you hired us. Please feel free to call us at 801-266-0166 for a free 20-minute free consultation to finish answering any questions you might have. Like I stated above, this is not advice and I would need to ask many more questions to establish your fiancé’s eligibility for the visa you want to seek for her and your eligibility for naturalization.

QUESTION 2:

Will a criminal deferral for shoplifting be a problem applying for a new B1/B2 visa?

I was caught shoplifting on August 2014, a terrible mistake. I had a public lawyer and went court at same day with Community Service and a deferral. The Judge told me that within 6 months my case would be dismissed and I could came back to USA. When filling a new DS-160 do I have to tell that I was arrested? Do I have to explain the case to immigration officer at USA Consulate? Thank you!

RESPONSE FROM ATTORNEY KIMBERLY J. TRUPIANO:

Even deferred State convictions are “convictions” under immigration law. So this could be an inadmissible offense. I don’t know if it is a misdemeanor or not. I would need to see the State record of conviction. What was the maximum amount of days in jail allowed for this conviction? How many did you get (even suspended)? What statute did the conviction fall under? Yes, you do have to disclose it.

Hopefully, it will fall under the petty crime exception under INA § 212(a)(2)(A)(ii)(II). That is, retail theft is usually considered a petty crime exception which would make you inadmissible for a non-immigrant visa. However, there is this exception – even if a conviction is a crime involving moral turpitude, a single, first-time conviction may qualify for the Petty Crime Exception, meaning that the offense does not trigger inadmissibility.

The exception provision reads in relevant part, that the ground of being inadmissible for having a conviction or having admitted to a crime involving moral turpitude (or attempt or conspiracy to commit) shall not apply to an alien who committed only one crime if— . . . (II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed). -INA § 212(a)(2)(A)(ii)(II). So I would need to know more about the conviction to see if it falls under that exception.

It is too bad that the State court judge gave you immigration law advice. Just because your case is “deferred,” like I said, it will very likely still be a conviction in the eyes of federal immigration law. Nevertheless, look to see if it falls under the petty crime exception to allow you to be admitted back to the United States.

Of course, your admissibility to the United States also depends on discretion so you should be sure to finish all conditions of your probation on that case and be ready to prove that when you apply for admission to the United States again.

This is not legal advice but general ideas that I have gleaned from your question and from my practice of the law. I would need to have a consultation with you to obtain more information to give you concrete legal advice. We offer a free intake process to gather preliminary information, pull the court docket if applicable, and then a 20-minute free consultation. Contact us if you want to arrange a consultation.

QUESTION 1:

How likely will my case be dismissed or the charges dropped?

I wanted to attend an event that needed a background check and found out that I’ve had a warrant since May 2014. I live in the state of Utah and this warrant has been issued for a year and half now. I scheduled to go to an arraignment to get it taken care of. It is for a Class A misdemeanor, practicing massage without a license. I was not practicing massage. I was practicing Reiki. I believe that the cop came to get a Reiki session from me to try to solicit prostitution and when he realized that I wasn’t doing anything illegal decided to charge me with unlicensed massage. I never advertised myself as an LMT but I was a student of massage therapy enrolled in an accredited school at the time. I have a clean record. Currently I am a full-time student with a 4.0 in a STEM field.

RESPONSE FROM ATTORNEY KIMBERLY J. TRUPIANO:

As to your criminal defense, I have had Reiki several times for energy work and plenty of massage over the last 30 years, and they are not the same. But I was curious what DOPL thought of it, and I found this decision that is directly on point with your case.

It states in relevant part:

“The Division of Occupational and Professional Licensing and the Massage Therapy Licensing Board have reviewed the practice of Reiki to determine whether Reiki is a modality of massage therapy. . . . It is the position of the Division that to the extent that Reiki is used as a ‘spiritual healing art’ and does not involve the methods outlined in the scope of practice of Massage Therapy, then Reiki is not a modality of massage. However, should a Reiki Practitioner while performing the ‘spiritual healing art’ involve the use of any of the methods outlined in the scope of practice of Massage Therapy, then the Reiki Practitioner must be licensed as a Massage Therapist.”

This opinion is also referenced in the bottom-right on the DOPL page for licensing for massage. I found it again referenced in a Powerpoint issued by the State of Utah, Department of Commerce, Division of Occupational And Professional Licensing, Bureau of Investigation, Lynne Anthony, Investigator. In that she also reiterates that Reiki is not the unlawful practice of massage therapy.

So the question is, did you touch his body in any way that would be construed as massage therapy? Read this decision because it outlines the definition. If not, then I would say you did not practice massage without a license.

As to failing to appear, I would have to talk with you about why you did not appear. Often the court will issue a warrant without ever sending notice to the person charged, so many people never even know, like in your situation, until they later find out through other means.

Please remember that this is not legal advice but general ideas that I have gleaned from your question and from my practice of the law. I would need to have a consultation with you to obtain more information to give you concrete legal advice. We offer a free intake process to gather preliminary information, pull the court docket if applicable, and then a 20-minute free consultation. Contact us if you want to arrange a consultation.

QUESTION 2:

If the prosecution in a criminal trial asks for a continuance due to an unavailable witness, will it automatically be granted?

I’m the defendant in a misdemeanor matter. I recently learned that my attorney appeared at a pretrial conference and stipulated to a continuance of my trial date; the continuance had been requested by the prosecution on account of a witness being unavailable for the original date. However, I was never informed of the conference or request for continuance. I only found out when I pulled a copy of the docket from the court.

Had I objected to the continuance and won, it seems to me that I would have had a great advantage at trial. Is there any chance that I could have retained the original trial date? Or would the prosecution have been granted the continuance regardless of my objections? I’m somewhat troubled that I was never informed of the conference.

RESPONSE FROM ATTORNEY KIMBERLY J. TRUPIANO:

If you felt that you were ready for trial and only the State was not ready, I would have objected to a continuance. If a witness is not available, the question is why. Is the witness out of the state or the State just forgot to have a subpoena served?

It is true that attorneys should try to work with opposing counsel on requests for continuance as much as possible; however, with criminal cases where your liberty and criminal record is at issue, I do not feel that the defense should be very liberal with them so long as the defense is ready. I do not mean that a defense attorney should never agree even if the defense is ready, but I just do not think we need to be very liberal about it.

It may be true that the judge would have likely granted the continuance, but the prosecutor would have been put on notice that he needs to get in gear because you have invoked your rights to a speedy trial. Maybe I have just been lucky but I have not seen a judge become irritated with me for objecting to a continuance in cases where my client and I come prepared and the prosecutor is not and where a case has really gone on several months or longer.

The defense’s stipulation to a continuance through counsel cannot really be withdrawn now. However, some thoughts I have are this – from here on out you can stay really in touch with your case and your attorney and let him or her know that you want to proceed with trial as soon as possible and that you want to be sure your side is ready as well (e.g., you are prepared if you intend to testify, your attorney has issued subpoenas to any of your witnesses, your attorney has prepared the witnesses for the anticipated questions and testimony, and you have all of the evidence under the Rules of Evidence ready to go, your attorney has written the defense’s submission of the jury instructions, and any pre-trial motions are prepared, etc.). As you can see, if your side is not ready, it is good to stipulate to a continuance!

This is not legal advice but general ideas that I have gleaned from your question and from my practice of the law. I would need to have a consultation with you to obtain more information to give you concrete legal advice. We offer a free intake process to gather preliminary information, pull the court docket if applicable, and then a 20-minute free consultation. Contact us if you want to arrange a consultation.

QUESTION 3:

I have a review hearing scheduled for Friday the 21st, they are saying to bring proof of 48 hours of community service.

I have a review this Friday and have to bring proof of 40 hours of completed community service, So on the court paper that I had to go get today, it says all the hours are due friday…. i have completed none of these. BUT on my court date a few months ago I got paperwork from my COURT appointed attorney stating to “Bring hours for a review hearing on Oct23, BUT at the bottom of said paper he also put proof of hours are due November 20th 2015…. I dont know what to do…

RESPONSE FROM ATTORNEY KIMBERLY J. TRUPIANO:

I would show the court document you have to your attorney and indicate that there was a misunderstanding. You should not be found to have violated a condition of probation unless it can be determined that you intentionally violated that condition. Here, you had a document from the court giving you other information. So likely if your attorney represents the situation well, you could move on with your probation at this hour with no incidents.

You would want to ask for additional time to complete the community service. The fact that you have not completed any of the hours yet and you were ordered to work on it a few months ago will not look good, so it’s a good idea to be ready to explain that (through your attorney) and how you can now work on it. I would ask for additional time to complete the community service (additional to Nov. 20) to give yourself a buffer and, again, explain why you could not work on it before and what is different now.

This is not legal advice but general ideas that I have gleaned from your question and from my practice of the law. I would need to have a consultation with you to obtain more information to give you concrete legal advice. We offer a free intake process to gather preliminary information, pull the court docket if applicable, and then a 20-minute free consultation. Contact us if you want to arrange a consultation.

QUESTION 4:

What is the legal consequence of this in Utah?

My girlfiend is 13 almost 14, I’m 17 with almost 8 months until I am eighteen. We had sex and decided after it was a huge mistake. The police were told and we are both really scared, what can we expect?

RESPONSE FROM ATTORNEY KIMBERLY J. TRUPIANO:

My first question is if your girlfriend is even willing to give a statement against you. You CANNOT interfere with her in that regard! (= witness tampering!), but if she refused to give a statement about the situation to the police, that would take care of it.

Assuming she does give a voluntary statement to the authorities (police, DCFS or usually Children’s Justice Center), then, because she is 13 years old, your case falls likely under Utah Code Ann. § 76-5-402.1, Rape of a child. “A person commits rape of a child when the person has sexual intercourse with a child who is under the age of 14.” This is a first degree felony unfortunately, which calls for “25 years and which may be for life” mandatory prison if convicted as an adult. HOWEVER, because you yourself are under 18 at the time, it is possible that your case could stay in juvenile court! You should read Utah Code Ann. § 78A-6-703 regarding certification hearings. Look it up online. Information is power. You would have to show the juvenile judge at a hearing that your case does not have these aggravating factors listed in the statute. It will really depend on some good negotiation and advocacy of a great attorney regarding the favorable / mitigating factors on your side of the story (only one time?, she and her parents are not out for blood?, no force or coercion on your part?, she was not hurt physically or emotionally? your first offense in juvenile court?, etc.) early on to try to keep it in juvenile court. You and your attorney would have to prepare well before that hearing and file as much evidence as possible to show your case should stay in juvenile court.

If you end up with a juvenile adjudication for the same felony, it is not a “conviction.” See Utah Code Ann. § 78A-6-105. Additionally, if the case were to be certified to the adult court, there would be a very hefty bond required of you, probably about $100,000 for you to stay out of jail. So it is absolutely critical that you work with a very good attorney who will try to keep your case in juvenile court to avoid life-changing consequences in the adult district court for such a serious felony.

As to the consequences to your girlfriend, first, she is too young to be criminally responsible. See Utah Code Ann. § 76-2-301 (“A person is not criminally responsible for conduct performed before he reaches the age of 14 years.”). Secondly, even if she had been 14 or even 15, I have seen often that they only prosecute the older person, especially males. So either way, she should not be in trouble, rather, she will be treated as the victim.

This is not legal advice because I do not have enough information about your case. I just tried to give you some general ideas with what little you provided. If you want to have a free 20-minute consultation, please feel free to contact my office.

QUESTION 5:

I have a UT CDL but got a speeding ticket in WY in a car.

Will the charges affect my CDL? I know I will receive points on my license from UT but will it be reported on my CSA score record. The speed was 26 over and I know I’m going to risk losing my job if I don’t win this in court. Because I know if I’m caught going 15 over in a semi, I’m fired, but is it the same if I’m in a car? I’m definitely hiring an attorney but they all say there might not be a chance because the speed is too high. This is my first offense in 7 years and the officer didn’t give me reckless driving. That’s a good thing.
I need help!!!!!

RESPONSE FROM ATTORNEY KIMBERLY J. TRUPIANO:

I have a CDL as well before I became an attorney (used to be an OO in 48 states for Mayflower and then flatbed in Florida back in the 1990s), and I have had clients with CDLs that have similar issues that you have. Even though your CDL is a Utah CDL, ultimately the commercial driver is governed by federal law, specifically Federal Motor Carrier Safety Administration (FMCSA). Some relevant sections of the law governing your case would likely be like 49 C.F.R. §§ 391.23(a) and (b), 391.15, 391.27, 391.25, and 383.51 (especially Table 2). See here.

The reason you could be fired (which can be avoided) for pleading guilty to certain offenses is probably because your company tries to keep its insurance premium down so the insurance company only allows certain violations, sometimes that are even stricter than those under the FMCSA. You should ask your employer to find out which violations you can have and which you cannot have.

The FMCSA sometimes does distinguish driving with a commercial motor vehicle with just driving a four-wheeler (“motor vehicle” in general), and sometimes it does not. That is, some offenses are violations if you are driving a commercial motor vehicle and on duty and some do not care what you are driving and whether you are on duty or not. However, for reckless driving, it is not distinguished. See 49 C.F.R. § 383.51, Table 2. That is, reckless driving of even just a “motor vehicle” is a violation as well as speeding in excess of 15 mph above the posted speed limit. The regulation states that these two types of convictions are considered “serious traffic violations.” It further reads that if you pled to TWO of these types of offenses you would have your driving privilege suspended for 60 days. However, like I said, the other question is what the other (sometimes a bit stricter) requirements are for your employer’s insurance company.

Either way, the GOOD news is that (1) information is power if your attorney researches some favorable deals under the federal law, and (2) often a deal can be brokered with the prosecutor to avoid this extreme consequence using that knowledge. Please remember that this is not legal advice because I have not looked closely enough at your case regarding its applicability to federal law. I am just giving you some general ideas for now. In addition, although I am not licensed in Wyoming, I could help your attorney in WY to broker a deal if he is not comfortable looking up suitable options in the sea of federal law. I have done this many times with high success. That is, I could come up with other options that work with your employer’s insurance requirements and the FMCSA and hand those over to your WY attorney who could negotiate with the WY prosecutor. Ways to be creative with plea negotiation so the ultimate plea avoids losing your job and CDL include taking a driver class first before entering your plea, being willing to pay the full fine at sentencing, your lack of having any violations in 7 years, etc.