First I want to thank you very much for being there and helping us. I need an advice from you and here is the case.

My husband was at the naturalization interview on December 5th, 2001 but he was found ineligible because of a felony he was charged (the charges where dismissed after 1 year) in June 10, 1997, and he was advised to re-apply for naturalization after June 10, 2002 (the five years of good moral character).

Meanwhile his case was expunged (it was the only felony he was ever arrested for - aggravated child abuse, malicious punishment- even it sounds very bad the fact is he lost control and slapped his son with his hand) and we received this letter from INS if we want to review the case with an immigration judge.

The question is if we should pursue this case taking into consideration his expungement and section 316.10(b)(iv) of the Act: "An applicant who has committed or admits the commission of two or more crimes involving moral turpitude during the statutory period is precluded from establishing good moral character even though the conviction records of one of such offense has been expunged." or it is not worth it and better wait another year after he will reapply in June this year (the waiting kills us slow!!)

Kindest regards,
Dana

Dear Dana:

There are two statements in your post that are a little confusing. You state in one part that the "charges were dismissed" and in another part that the "conviction" was expunged. If he was convicted, then the case was not dismissed.

Secondly, you state that you received a letter from INS stating that he could "review the case with an immigration judge." Read the letter carefully. Does it say immigration judge or to file an appeal with INS?

If you will respond to these two questions, we will answer you more completely. Good luck.

I'm sorry for confusing you, with all this terms is hard for me to be coherent.

If I'll tell you that my husband was sent into PTI Program and after 1 year the charges were dismissed probably everything will make sense to you. But the arrest was still in his records this is why we proceeded with the expungement process (the decision of expungement was made after the interview with INS).

And on the letter from INS it’s says "if you desire to request a review hearing on the decision you must file a request for a hearing within 30 days" and "a request for the hearing may be made to the District Director with the INS office which made the decision". Should we proceed with this?

Hoping this time I was less confusing,

Best regards,
Dana

Dear Dana:

If the state PTI Program required that he admit the charges, then he is probably not eligible for naturalization under 316.10(b)(iv). However, many programs do not require an admission. If that is the case, then he is not ineligible as a person of bad moral character for that offense.

If there was an expungement (except for drug related offenses), the law has always been that the crime would not be considered in determining good moral character for naturalization purposes. However, with the change in the definition of "conviction" under the Immigration Reform Act of 1996, the Immigration Service has taken the position that an expungement will not help.

While we disagree with said position, and while it has not been finally affirmed by the courts, it would probably take a lot of time, and much money, to fight this issue.

Since you indicate that your husband will be outside of the 5-year period in June of this year, it will probably be much easier, and cheaper, simply to refile at that time. In addition, if you do decide to appeal the INS decision, the appeal period itself may be a year or more depending on which INS office is handling the case. Good luck.