Expungements

Expungements

Immigration Consequences of a Criminal Conviction

Certain criminal convictions can be grounds for deportation or removal of a non-citizen. USCIS also considers criminal history if an individual applies for any discretionary immigration benefit such as a work visa, permanent residence or citizenship.

While expunging misdemeanor records assist individuals in job and housing searches, the immigration effects of most convictions remain intact. For immigration purposes, expungements work only for a first conviction of certain minor drug offenses.

In 1996, Congress enacted the IIRIIRA which included a very broad definition of conviction and defines many crimes, including some misdemeanors, as “aggravated felonies” which are mandatory grounds for deportation. Generally, for Immigration purposes, crimes are considered “aggravated felonies”, “crimes of moral turpitude, or “crimes of violence”. In addition, most drug crimes are mandatory grounds for deportation of a non-citizen who is in the US.

If an immigrant is convicted of simple possession of a controlled substance, a dismissal of that conviction will erase that conviction as grounds for deportation.

What is an expungement?

When a person is arrested, that person gets a criminal record. At a minimum, there is a record of an arrest. If the person is later convicted, then the person has a record of both an arrest and a conviction. These records follow the person over the years. Prospective employers can access these records. Insurance companies, landlords, adoption agencies, and prospective creditors can too. To expunge a criminal record means to go through a court process. Upon successful completion of that process, you get a court order signed by a judge. The court order states that the offense “…shall be deemed not to have occurred.” Persons doing a background check through State Police department or through the FBI will receive a response that there is “no record.” Additionally, after you expunge your criminal record, you are legally entitled to state that the arrest or conviction never happened.

Non-citizens Should Petition for Expungements if:

  • Convicted of simple drug possession with no other convictions (including expunged convictions). Failure to expunge will result in mandatory deportation. OR
  • Convicted of a lesser offense that is similarly analogous to one eligible for dismissal under the First Offender Act this would include possession of drug paraphernalia and being present in a place where drugs are used or sold. OR
  • Convicted for a non-deportable offense (i.e. a misdemeanor that is not a violent crime or a crime of moral turpitude). But note: the individual must disclose criminal history to the Immigration Service which will consider it in any moral character determination. Lesser and even expunged offenses may still factor into a “moral character” determination which is required for citizenship, permanent residence, cancellation of removal, and other discretionary immigration benefits. Infractions, which cannot be expunged, will also be considered.

During your plea If your were not advised of the immigration consequences of a plea/conviction, (as required by state law). If not, one could argue that ineffective assistance of counsel renders the conviction legally defective for immigration purposes, under a writ of corum nobis.

Contact us to learn how our immigration law firm can assist you with immigration benefits you are eligible for.