Inevitably, when an individual makes an application for a benefit with the Immigration Service, whether it is an application for a green card or an application for naturalization or some other benefit, the question about the individual’s criminal record including arrests and convictions will be raised.
Commonly, the Immigration Service will ask a series of questions regarding any possible arrest as part of security-related questions listed on the application.
In most instances, where a criminal record exists, the Immigration Service will require the individual to present the dispositions of arrest for any and all arrests. However, an arrest record can be dispositive in the officer’s final decision on the application – either by operation of law or simply because the officer will make a discretionary determination that the applicant lacks the good moral character required for the sought benefit. In some instances, the criminal conviction can not only require the officer to deny the application, but have the case referred to the immigration court for removal (deportation) proceedings.
The question then becomes if you have a criminal conviction, how do you know whether it will affect your application for an immigration benefit or even worse yet, whether that conviction makes you deportable?
First and foremost, whenever the issue of a criminal conviction is involved, we caution our readers to seek the advice of one of Spar & Bernstein’s most experienced attorneys.
Criminal convictions can be tricky with the Immigration Service and can place an applicant in a pretty precarious position. Most people understand that a felony conviction is serious, but even certain misdemeanor convictions can lead to the denial of an application or worse yet render an individual deportable. If you have a criminal record, before you submit that application, find out what the consequences may be.
Second, many applicants wonder whether they must disclose an arrest or conviction when completing an application with the Immigration Service. It is imperative that an individual be forthright in all criminal arrests and convictions.
By the time of the first interview, the Immigration Service will have the applicant’s complete arrest record. The failure to disclose an arrest can cause the Immigration Service to believe that the applicant has intentionally made a misrepresentation on the application, and on that basis alone, the Immigration Officer can deny the current application. Any future applications can also be denied for making any prior or current misrepresentations to the Immigration Service.
Third, even where a conviction is vacated or expunged, an applicant is still required to list all arrests and convictions. In that case, the applicant should present the disposition of arrest showing the conviction with proof that the conviction has been vacated or expunged. Unfortunately, simply because the conviction has been vacated or expunged by a federal, state or a foreign court, it does not mean that the conviction has been vacated or expunged for immigration purposes.
It sounds like it cannot be true. After getting a conviction expunged or conviction, it would seem intuitive that the conviction is expunged or vacated for all purposes including background checks for employment as well as immigration purposes. However, this is not necessarily the case where immigration benefits are involved.
The Board of Immigration Appeals (Board), the highest administrative body for interpreting and applying immigration laws, has established definitive case law with respect to when an expunged or vacated conviction is eliminated for immigration purposes. Through case law, the Board has made it very clear that the mere declaration that a conviction has been expunged or vacated by a federal, state or foreign court is not enough to eliminate the conviction from the Immigration Service’s consideration.
In fact, in order for an expunged or vacated conviction to be eliminated for immigration purposes, the court’s declaration expunging or vacating conviction must be based on the merits of the criminal case. The decision to expunge or vacate a conviction must be supported by a procedural or substantive defect in the underlying criminal proceedings.
If a court orders a conviction expunged or vacated based on constitutional grounds, then the conviction will be eliminated for immigration purposes because this would be an example where there was a defect in the underlying criminal proceedings.
On the other hand, if the court declares a conviction expunged or vacated based on a rehabilitative statute, the conviction would not be eliminated for immigration purposes because it had nothing to do with the underlying case. Rather it had to do with the individual’s action after the conviction. The same would hold true if a judge ordered a conviction expunged or vacated because of an immigration hardship. Accordingly, the conviction continues to exist for immigration purposes and would not keep an individual from being denied an immigration benefit or being removed (deported) from the United States, if in removal proceedings.
If you have a conviction that you think can be expunged or vacated before a New York State court, we strongly urge you to schedule a consultation and bring your documents with you to one of the experienced and knowledgeable attorneys in Spar & Bernstein’s criminal law department. The criminal attorneys can review your criminal records and determine whether your criminal conviction can be expunged or vacated on the merits of the case. Moreover, the criminal attorneys will work closely with the immigration attorneys at Spar & Bernstein so that if your criminal conviction is expunged or vacated, it will be on a basis for which the conviction will be considered eliminated for immigration purposes.