Expunging or Sealing Criminal Records Doesn’t Improve One’s Chances of Obtaining Citizenship
What I always say to people who is not a U.S. citizen and wants to change his or her legal status, expunging or sealing your criminal background will not improve your chances of obtaining citizenship but could complicate matters. Why? Because any contact with law enforcement (arrests or convictions) must be disclosed to immigration authorities.
While expungement or sealing criminal records remove barriers to employment, housing or obtaining a professional/occupational license, if someone wants to adjust their legal status, they should hold off doing so until they’ve at least consulted an immigration attorney. Once records are expunged or sealed, it can be difficult to retrieve them should immigration authorities request to see them.
Although I am not an immigration attorney, I am well aware of the complications that can arise if someone is convicted of a crime and is not a U.S. citizen.
Two Women Seeking Citizenship
Recently, I spoke with two women, both legal residents, who want to apply for U.S. citizenship. Both had been charged with crimes and wanted to expunge their records. Their cases highlight the issues that can arise when a non-citizen is charged with a crime.
An Arrest and an Ordinance Violation
Anita (not her real name) told me that she’d been charged with domestic battery. The complainant was her estranged husband. Fortunately for Anita, the first time her case was up in court, it was dismissed.
Aside from her domestic battery arrest, Anita had a local ordinance citation for drinking in a public place. She received a supervision, a deferred prosecution that under state law is not a conviction. Anita had forgotten about the case until I found it. Although a supervision sentence under federal immigration law is considered a “conviction,” the fact that Anita had been charged with a local ordinance violation, not a criminal offense, made it unlikely her application for citizenship would be flagged.[1] Anita was already working with an immigration attorney and knew that she needed to provide the case information to him.
Five Arrests, Three Convictions
My conversation with Rena (not her real name) began with her telling me that she wanted to “expunge” her record because she was getting ready to apply for citizenship.
I first advised her that I needed to see what she had on her record. During our phone conversation, I learned that Rena’s husband, a naturalized U.S. citizen, initially came to the U.S. on a H1-B visa. I asked her if her husband hired an attorney when he applied for citizenship. Rena said he had not.
After I saw what Rena had on her record, I firmly told her that she needed to speak with an immigration attorney before doing anything about clearing her criminal record or applying for citizenship.
Rena had been arrested for retail theft five times over a period of nine or ten years. I know I asked but now can’t recall if her attorney (who represented her on all five cases) was aware of her immigration status.[2] The first two cases Rena caught were dismissed. The third time she was arrested, the judge sentenced her to supervision. Rena’s fourth and fifth arrests ended in misdemeanor convictions.
Multiple CMITs Place Legal Residents in Danger of Removal
There are several categories of criminal offenses that can place a non-citizen at risk of removal (deportation): 1) aggravated felony convictions, 2) felony drug convictions, and 3) crimes involving moral turpitude (CIMT). For purposes of Rena’s situation, I will only address CIMTs.
Crimes that meet the definition of a CMIT generally fall into three categories: 1) theft or fraud, 2) threatened or actual bodily harm to another, and 3) most sex offenses. Under federal immigration law, the commission of two or more CMITs, places an individual at risk of removal. Due to the fact Rena was sentenced to supervision on one of her cases, under federal immigration law, she had three CMITs on her record.
I did not tell Rena that her criminal record had placed her in removal jeopardy. I thought that an immigration attorney should break the news to her.
Losing One’s Green Card Due to Ignorance or Youth
Sadly, Rena is neither the first nor the last person I will speak with facing her predicament. Legal resident teens and young adults, in particular, are vulnerable because they often don’t realize that their “youthful indiscretions” (unlike those of their U.S. citizen peers), can come at the cost of losing their Green Card or, worse, their right to remain in the U.S.
How do we keep non-citizens from facing such legal jeopardy? Be informed. If youths and emerging adults realize what can happen if they are convicted of certain crimes, the hope is that they may exercise better judgment so as to avoid placing themselves in situations where their immature behavior or underage alcohol or drug use leads them to be convicted of a CIMT or something worse.
[1] Unlike a criminal charge, where a prosecutor must prove “beyond a reasonable doubt” that you committed the offense, when someone is charged with a local ordinance or city code violation, the burden of proof is typically much lower. The city prosecutor need only prove “by the preponderance of the evidence” (more likely than not) that you committed the violation.
[2] A word to the wise: if you are charged with a crime, you must let your attorney know what your legal status is if you are not a citizen. A good criminal defense attorney should know that s/he can’t give you the same legal advice as s/he would give to a U.S. citizen.