World Journal Weekly Q & A - February 13, 2011

Q & A 1.

Q&A 1.

Nephew in Psychiatric Hospital with Previous Arrest and Jailing for Drug Possession Has Expiring Green Card  - What Should He Do?

Wang reader asks:

My nephew came to U.S. when he was 10 years old and obtained his green card when he was 14.  However, he did not apply for citizenship when he turned 18. He started doing drugs when he was 18 and by the age of 23, he was arrested and jailed for the possession of drugs.   In jail, he was found mentally unfit and all the charges were dropped and he was released.  Four years ago he was sent to a psychiatric hospital.  He remains there as of today.  He is now 28 years old and his green card will expire in early 2012. His parents are divorced.  His father is unemployed for the past 3 years and could not support him.  The county has custody of my nephew.  His mother has returned to Taiwan and is not doing so good either.  Who can file his green card renewal for him at this time?  Since he was arrested before, will he be deported when his green card is expired? What should he do if he wants to stay in the United States?

Dear reader:

It would appear that your nephew has two choices  - either do nothing or have his father file an I-90 application for replacement green card in late 2011 or before the card expires. 

An alien whose green card is expiring and fails to ask for a new green card through form I-90 still holds the status of a permanent resident since the status continues until it is terminated by a removal order.  He will not, however, be in compliance with the sections of law which require an alien over the age of 18 to carry a valid permanent resident card and to register as an alien.  The penalties are not large and probably avoidable through your nephew's being in a mental institution thus making it difficult for him to comply with those sections of law.  Alternatively his father could file an I-90 application on his behalf since your nephew himself appears to be mentally unfit.  Possession of drugs requires a person to have been in a criminal state of mind to be convicted.  If his mental illness compromised his state of mind at the time of the possession, that could be a favorable factor upon the question of his deportability. 

If he was mentally fit and actually convicted and only released later because of a deteriorating state of mind, further questions would have to be asked to determine his state of deportability.  The fact that his father is unemployed has no effect inasmuch as an I-90 application is only to renew a green card and not to apply for it again.  Ability to support is not a part of the I-90 process.  Likewise mental state is not a question asked on the I-90 form and should have no effect on renewal of a green card.  His father, however, will have to request U.S.C.I.S. to make special arrangements to take your nephew's biometrics since those are required for the processing of an I-90 application.

 

Copyright © 2003-2012 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.