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How Expungements Can be a Headache in Immigration Cases

Djung Tran on 06/18/2013

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For most people who acquire a minor criminal record that conviction becomes both a professional and a personal thorn in their side.  On the career-side, having a criminal record can make landing a job more difficult or might prevent you from doing the work you want to do altogether, whether that’s lawful on the employer’s part or not.  On the personal side, you may feel ashamed that you have this record that shows that you broke the law, were accused of breaking the law, or were convicted of breaking the law, and having to explain it whenever it comes up.

After experiencing the ramifications of having a criminal record, most people want to eliminate this from their official history if they can, which usually means requesting that the information be expunged.  Expungement means that the record is destroyed, and anyone looking up your name in the jurisdiction in which it the record was generated should come up empty-handed.  Once an expungement petition is granted, the court administrator (usually the clerk of courts) where the record was originally generated should notify any other agencies to which the criminal record was sent, requesting that this information be removed from those databases as well.  In reality, such requests may or may not be made by the original keeper of the records, and the other agencies that received the criminal record information may or may not update their files in a timely manner, so information about the conviction(s) may still show up in other databases, such as the FBI database.

In terms of immigration, before acting to expunge a criminal record you should know this:  USCIS and the federal immigration courts often require that you disclose whether a applicant/respondent has ever been arrested or detained by a law enforcement officer, charged with a criminal offense, convicted, what the sentence was if convicted, and the sentence actually served.  Immigration agencies require this information regardless of whether the record has been expunged.  And they demand certified records of these events, or a statement from the relevant agency stating that no record is available.  This question comes up in applications for citizenship benefits, and in deportation proceedings, where the respondent usually must prove "good moral character" in order to qualify for the benefit sought.

Once the record has been expunged there is no way for the record-keeping agency to issue a certified copy of that record.  And, not infrequently, when you then request a written statement that the record is no longer available due to expungement, the record-keeping agency may refuse this request for various reasons, including not understanding the request, or due to a policy of declining to verify the prior existence of a record that has been expunged.

Then you are stuck.  Immigration authorities have received some sort of notice, whether through required self-disclosure or background checks, of your client having a criminal record, and yet you cannot provide verification of what happened.  It is because of this conundrum that I often advise clients to delay having their criminal records expunged until after they have obtained certified copies of the arrest, conviction, and sentence, as well as the sentence actually served .  A “clean” criminal record procured through the expungement process can be a headache in immigration proceedings because of the requirement to disclose ALL, even expunged criminal records.

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