Criminal "Convictions" with Possible Severe Immigration Consequences
Posted Jan 25, 2008
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The immigration consequences of criminal convictions may sometimes be so severe as to completely destroy one's hopes and dreams for life in the United States. The area of law that governs the impact a criminal history has on one's ability to enter or remain in the U.S. is a complex interplay of state, federal, immigration, and administrative laws and regulations combined with case law. Many foreign nationals and, sometimes, their criminal defense attorneys do not realize that some crimes that may be considered fairly minor, with minimal criminal penalties, can result in extremely harsh immigration consequences. Long-time MurthyDotCom and MurthyBulletin readers may recall from past articles, including Beware: Serious Immigration Consequences of Shoplifting (June 21, 2002), that even a "simple" crime, such as shoplifting, may result in one's removal (formerly deportation) from the U.S. This article is in response to questions and inquiries received at the Murthy Law Firm from foreign nationals and their criminal defense attorneys on the particular question of what constitutes a conviction for immigration purposes and how can the effects be minimized, if it is impossible to avoid having a conviction.
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The Immigration Context : A Conviction Here May Not be a Conviction Everywhere
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The definition of "conviction" under immigration law and for immigration purposes is not the same as the definition under criminal law or for other civil purposes. Under immigration law, as with criminal law, a conviction exists where there has been a formal judgment of guilt entered by a court. Additionally, under immigration law, a conviction can exist in situations where the adjudication of guilt has been withheld. This is often done for first-offenders. If the adjudication of guilt has been withheld, it is still considered a conviction for immigration purposes if two elements are met. The first element is that a judge / jury finds the foreign national guilty, or the foreign national enters a guilty / no-contest plea, or admitted facts sufficient for a finding of guilt. The second element is that the judge has also ordered some form of punishment or restraint on liberty (like probation, community service, alcohol or anger management classes, fine, etc).
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Deferred Adjudication : a Conviction for Immigration Purposes
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In many cases a deferred adjudication would be a welcomed outcome to a U.S. citizen charged with a crime. In these situations, a common pattern is that the criminal defendant must admit to the crime, then the individual is placed on probation and the judgment of guilt is deferred until some specific date in the future. If the defendant complies with the terms of the probation and avoids any further arrests, the charge/s then are dismissed. For a U.S. citizen, there would not be a conviction. The deferred judgment in this case will still result in a conviction for immigration purposes, however, because there was an admission of guilt and the judge ordered a period of probation (which is a punishment / restraint on liberty) and, thus, both requirements for a conviction under the immigration interpretations are satisfied. As a separate matter, if the defendant has any applications or petitions for immigration benefits pending during the probation period, they are likely to be put on hold until the probation is served and the criminal case is closed.
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Dismissal : Even a Possible Conviction for Immigration Law Purposes
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Unless a case is dismissed on its merits by the Court, or for failure on the part of the prosecution to prosecute the case, it is fairly common for a dismissal to be regarded as a conviction under immigration law. When there is a dismissal of a criminal case, it is always necessary to look at the procedure that led to that dismissal in order to assess if there is a conviction under immigration law. The exact procedures vary by state and even by locality. There are states where, for instance, a pretrial diversion scheme allows for a case dismissal without one's admitting his or her guilt, and, thus, a criminal case would not result in a conviction for immigration purposes. Examples would be some of the various scenarios in which defendants never appear before a judge, or do not have to admit to guilt in order to participate in first-offender type programs. There may simply be a requirement to take some special classes (such as anger management, alcohol awareness, or parenting) in exchange for the dismissal of a case once an person completes his or her assignment. Such a defendant would not have a conviction because there was no admission of guilt and there was no finding of guilt.
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Case-Specific Interplay of Federal Immigration and State Criminal Laws
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Since the analysis is case specific and depends on local procedure, it is often necessary for the immigration lawyer and the criminal lawyer to coordinate with one another. To obtain the best possible outcome, it is advisable to do this in advance, following the arrest, rather than after the judgment has been entered.
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Expungement of Criminal Record Does Not "Erase" Conviction
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It is a very common misconception that an expungement, or sealing of one's criminal record, will result in a clean record. In fact, if one has ever been arrested / charged / cited / convicted, s/he will have to reveal this fact whenever any immigration forms are filled out and/or any immigration benefits are sought. This will hold true even if the conviction is expunged, sealed, or otherwise deleted from the individual's criminal record. The fact that one's record has been expunged does not erase the arrest or conviction for immigration purposes, except in very limited exceptions. The record still exists and is accessible to law enforcement officials and as part of background checks. It is simply no longer a public record available to everyone.
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A criminal record that has been expunged makes it more difficult for a defendant and for the USCIS to verify the disposition information. Because of this, it is a good idea to obtain several certified copies of the disposition information prior to the expungement. Some individuals choose to wait until they are U.S. citizens before completing the expungement process, if the particular charge will not create problems with employment or other matters.
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Conclusion
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The issue of conviction is only one piece in the sometimes complex analysis with regard to immigration consequences of any criminal history. There may be many other aspects of the criminal history that need to be analyzed in order to make an accurate determination in a particular case. It is important for one in this situation to seek professional advice from an attorney experienced in U.S. immigration law as well as a criminal defense attorney who are both knowledgeable on the issues involved.
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