Immigration Myths: Criminal Convictions

 Posted on September 23, 2015 in Immigration

When an individual is convicted of a criminal offense, he or she will likely want the situation over and done with as soon as possible. However, the consequences of conviction unfortunately tend to linger. Nowhere is this more apparent than in dealing with immigration authorities, especially since myths abound about the consequences for one’s immigration status after conviction. It is imperative, however, that you do your research, and are aware of what you may potentially face if convicted.

Myth: Only a true conviction and being sentenced after a full trial counts as a conviction for immigration purposes.

False, unfortunately. United States Citizenship and Immigration Services (USCIS) guidelines state explicitly that a “conviction,” for immigration purposes, is defined as a “formal judgment of guilt entered by a jury.” However, there are other outcomes that count as a formal judgment of guilt without going through a trial—for example, a judge finding the suspect guilty (instead of a jury), a suspect pleading nolo contendere (“no contest”) or otherwise confessing.

The only ways that a criminal charge will essentially disappear for immigration purposes are threefold: it must be dismissed (ended by the court), stricken (removed from the docket), or ‘nolle prossed’, which is essentially a court exercising its discretion and deciding not to prosecute. If none of these occur in your case, you almost certainly have a conviction on your record that may affect your immigration status.

Myth: If you have a conviction expunged, it disappears as if it never happened, and immigration officials need not be told about it.

False. Even if you have a conviction expunged (struck off your record), traces remain in certain places. For example, if you are convicted of breaking an Illinois law, you will likely still have fingerprints in a federal database such as at the National Crime Information Center (NCIC), depending on the nature of the crime. If an immigration official sees this, he or she will question any statement that you have never been convicted of anything, and may wind up denying your application on fraud grounds.

The best course of action for those with expunged convictions is to obtain records, of both the expungement proceeding and the underlying criminal trial or plea. Being able to show court records to an immigration official will help to verify that the expungement actually occurred.

Myth: Any criminal conviction immediately torpedoes your chance to obtain a Visa, Citizenship, or Lawful Permanent Resident (lpr) Status.

False. USCIS officials will examine the nature of the offense(s), not how many someone has. It is, however, important not to simply assume everything will sort itself out—you must take affirmative steps to be honest and to explain why your criminal missteps should not disqualify you from obtaining your visa or immigrant status.

The only situation in which one single conviction is an automatic bar to obtaining status is if that conviction is for an act deemed to be an aggravated felony, and you have been previously removed due to the conviction. If this is the case, you will be permanently inadmissible to the United States. Aggravated felonies are crimes that have a component of assault (physical, sexual or otherwise) and/or deceit (such as fraud or embezzlement), and if possible, should be avoided via plea.

Seek Professional Legal Guidance

If you are an immigrant and have committed a crime, achieving the results you want on your own can be difficult. The help of an experienced immigration lawyer can be invaluable. The skilled Chicagoland immigration attorneys at Mevorah & Giglio Law Offices know that mistakes happen, and that you should not have your life put on hold for what may be one error in judgment made years ago. Call us today or contact us via our website to schedule your initial consultation today.

Sources:

http://uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartF-Chapter2.html

http://fas.org/irp/agency/doj/fbi/is/ncic.htm