In the Immigration Law Realm, “Expungement” Does Not Mean the Criminal Case Never Happened
Published August 25, 2008
But I had the matter expunged! That is usually the first response a client will provide when I suggest that we must disclose all arrests or criminal charges when it comes to answering questions listed on an Application for Permanent Residence (I-485) or Application for Naturalization (N-400).
Although for some purposes, an expungement may properly be understood as a process that seals and makes disappear an individual’s criminal record, in the immigration law realm it does not have such an impact. The problem is that expungement may mean the criminal case is cleaned off the individual’s record for purposes of local or state law enforcement or judicial system, but it does not cause the individual’s fingerprints (if taken) be erased from a federal database of accused criminal offenders. And when an applicant is undergoing Department of Homeland Security/Citizenship and Immigration Services scrutiny on their Application for Permanent Residence or Application for Naturalization, any applicant arrest will reveal itself pursuant to the agency’s analysis and review of the applicant’s biometrics (fingerprint) processing results – nothwitstanding any expungement.
Does the fact that an applicant has been arrested or convicted mean the application in question will be denied? Not necessarily. However, to the extent that an applicant fails to disclose of the existence of previous criminal charges – even dismissed charges, they may find themselves be accused of misrepresentation and be denied the immigration benefit not because of the criminal matter of course, but due to their lack of candor in failing to disclose the charges i.e. poor moral character.
In any case, a foreign national should never rely entirely on what a criminal law attorney or even a criminal court judge may advise when it comes to the immigration law consequences of criminal charges or conviction. Accordingly, non U.S. citizens who are or have been the subject of criminal proceedings should always consult with an immigration law expert prior to entering a guilty plea, and/or when seeking immigration benefits such as U.S lawful permanent residence or citizenship.
PUBLISHED August 25, 2008 – “IMMIGRATION LAW FORUM”
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