How Criminal Expungements Can
And Cannot Help Immigrants
Question:
“My husband had a minor conviction about 10 years ago. He went to an attorney who expunged his conviction and said it would no longer affect his immigration status. We are about to file his application for a green card. A friend told us that he still has to admit his conviction. Is this true?”
(Submitted by Teresa N. Chula Vista, CA)
Answer:
Your friend is correct.
Without knowing more about what exactly was told to your husband, it sounds like the lawyer who helped him could be wrong.
Generally, expungements do not work for immigration purposes.
I’m amazed how many criminal defense lawyers recommend filing for expungements as solutions to immigration problems. As a green card lawyer, I can attest your husband is not the only person who has received such advice – without any explanation how the interplay between state convictions and immigration law works.
What is an Expungement?
An expungement is a legal process that erases a person’s criminal convictions from a court or law enforcement agency’s records. By removing criminal violations from general public review, and often destroying such information, an expungement order treats such offenses as if they had never occurred.
The effect of expungements is often confused with the sealing of records and the issuance of pardons.
Expungements vs Sealing Records
When criminal records are sealed, this means the records are made unavailable to the general public. Expungements refer to the process of legally destroying or dismissing a criminal record.
Expungements vs Pardons
Pardons are the forgiveness of convictions. They do not erase convictions from public records. Rather, they restore rights which have been lost due to convictions – such as the right to certain professional licenses and the right to vote. Pardons can only be granted by the governor of a state (for state crimes) or the president of the U.S. (for federal crimes), unlike expungements which are granted by a judge.
The Impact Of Criminal Expungements
In Immigration Cases
In California, expungements allow a person convicted of a crime, after the conditions of their probation are completed, to reopen and dismiss their case. However, the effects of are limited.
Most individuals pursue expungements for employment reasons. California law prohibits private employers from seeking or using information about an applicant’s dismissed or expunged convictions to determine employment eligibility.
The same approach should not be taken for immigration benefits. Your husband should tell the truth about everything in his application for permanent residence. Even old convictions from 20 years ago should be revealed.
Your husband does not want the government to think he is trying to hide anything.
Under immigration law, expungements do not allow an applicant for permanent residence applicant (or any immigration benefit or relief) to claim they were not arrested, charged, or convicted.
As the Board of Immigration Appeals ruled in Matter of Marroquin, the expungement of a conviction does not eliminate the conviction for immigration purposes.
As part of the adjustment of status process, your husband must have his fingerprints taken.
From here, USCIS runs criminal background checks on all green card applicants. Even if his records were expunged, both his arrest and conviction records will show up on the rap sheets.
So let’s talk about his conviction for a moment.
There could be a bigger problem here. You mentioned that your husband’s conviction was minor. I’m not sure what that means.
The Potential Impact Of Minor State Offenses
Perhaps you mean that the conviction is a misdemeanor under your state’s criminal rules. Or that the time served was minimal.
Under immigration law, however, a state misdemeanor with little time spent in jail may be a different matter. The conviction might be classifiable as a more serious offense, an “aggravated felony,” for immigration purposes.
BATARA IMMIGRATION LAW INSIGHTS
Crimmigration Law: The Impact Of Convictions On Deportation Cases
For example, a supposedly minor offense under state law could be deemed an aggravated felony by immigration law enforcement agencies.
The danger is that immigration aggravated felonies mean a near-automatic deportation order against an immigrant.
In addition, certain convictions are considered to be crimes of moral turpitude. These types of convictions can also disqualify your husband for permanent residence status.
Since there exists a possibility your husband’s criminal conviction, which you described as minor, could potentially result in such negative consequences, I suggest you slow down your husband’s permanent residence process.
I recommend consulting with an experienced crimmigration defense attorney before he files his application to adjust his status to permanent residency.
You cannot, and should not, assume, your husband’s arrest and conviction records will not cause you unanticipated grief following his interview.
If you have an ongoing case right now, and you have immediate case-specific questions, you may want to visit our Green Cards And Permanent Residence Attorney Services page for more information.
Or you might want to schedule a 1-On-1 Personalized Strategy And Planning Session to discuss the ins and outs of your case in depth.
