Published: January 12, 2014
For certain, there continues to be a significant disconnect between criminal defense attorney perceptions and the realities of immigration law. Don’t get me wrong – I am not writing this article to scold, judge or blame the criminal defense bar, since I am well aware that keeping up with current criminal laws and procedures is challenging enough. It’s just that I happen to bear witness to this disconnect at least a couple times a week in communications with criminal defense colleagues with whom I may share a client, and we engage in discussions ranging from the deportation consequences of a criminal plea bargain, to the necessity of disclosing an expunged criminal record in an application for permanent residence (Form I-485), green card renewal (Form I-90), or Naturalization (Form N-400). The following discussion features the most common misunderstandings:
Myth: The expungement of a criminal record means it’s erased from ALL existing databases, such that the arrest and court proceeding never happened and disclosure of the arrest to immigration officials is unnecessary.
Fact: The expungement only means it’s been erased from certain databases, such as a local court’s or perhaps state police records. However, the fingerprint that was taken by the law enforcement agency in conjunction with the arrest forever leaves its mark for all future FBI analyses – no matter the success of efforts to dismiss the charge and/or expunge the record. Foreign nationals seeking U.S. residence, green card renewal, or US citizenship should take measures to obtain several certified court dispositions or records from the clerk of the court where the criminal case took place before seeking expungment, since the immigration official reviewing the application in question will for certain know that there had been arrest (regardless of expungement) and will want to verify the outcome of criminal proceedings. If no certified court disposition is obtained prior to expungement, the foreign national may very well find themselves having to ask their criminal defense counsel to unexpunge the record to facilitate final processing of their immigration related application.
Myth: The “dismissal” of a criminal case, but only after an admission of wrongdoing, and imposition of fine, supervision or other penalty, still means there is NO “conviction” for purposes of US immigration law.
Fact: Unless a criminal charge is outright “dismissed”, “stricken” or “nolle pros’d” and without an admission of wrongdoing and penalty, there is a decent chance the outcome will be viewed as a criminal conviction for immigration law purposes. Much of the time, the quick plea deal offered to a criminal defendant is irresistible at the moment its offered, since the client a) will know they will not have to do jail time, b) will not have to pay their criminal lawyer any more money for future hearings or a trial, and c) is advised, mistakenly, by either their criminal defense attorney or the judge that the outcome is not considered a conviction. Well, what’s considered a conviction for state criminal law purposes is not always the same as what’s considered a conviction for immigration law. The lesson: before accepting a plea deal, non US citizens are advised to consult an immigration lawyer so they are “in the know” about what immigration law consequences, if any, are in store.
Myth: Applicants for Permanent Residence (I-485), Green Card Renewal (I-90) or U.S. Citizenship (N-400), with any criminal record, even a conviction, can expect to have their application denied.
Fact: Foreign nationals seeking such immigration benefits are not automatically disqualified because of their criminal past, even with one or more convictions. What is determinative, of course, is the nature of the offense and conviction, and the number of convictions. The only thing an applicant for immigration benefits should be afraid of is their impulse to proceed blindly with one of these applications, premised either on mistaken advice provided by their criminal attorney, or the hope or fantasy that “everything will be o.k.” For certain, during processing of any of the above applications, all of the applicant’s arrests will come to light, and how these charges were disposed of, and the nature of any conviction(s) will determine what happens next – whether it be application approval, or application denial, with a notice for the applicant to appear in court for removal proceedings. So, again, immigration applicants with any sort of criminal past would be wise to confirm to enlighten themselves regarding how immigration authorities will view this past before embarking on what can be a scary and dangerous adventure.
PUBLISHED January 12, 2014– “IMMIGRATION LAW FORUM” Copyright © 2014, By Law Offices of Richard Hanus, Chicago, Illinois