New York Lawyer's Legal Updates

Disclosure Of Criminal Record In Connection With Immigration Benefits

Author: Deportation Attorney Alena Shautsova

Many people who are filling out Immigration forms are asking this question: do I need to disclose my expunged conviction?; or Do I need to disclose my charges if they were dismissed?; or Do I need to disclose my juvenile conviction?

Many are confused, because often their Criminal Defense attorneys instruct them that once a conviction was expunged or dismissed, they have a “clean record.”

The situation is such that for Immigration purposes, a person must disclose all the arrests, charges and convictions whether or not they were expunged, happened 20 years ago or had a “juvenile” status. Why? Because a non-disclosure of these item will often lead to a separate , immigration fraud charge. Even if someone’s record is “clean” and those “happenings” cannot be held against the person, the Immigration authorities still would like to know if the person was in fact charged with anything and what was the resolution of such charges. Often, these questions arise in connection with an application for adjustment of status or naturalization, or a visa. So, the answer should be “YES” with an explanation and proof that the charges were resolved in a certain way.

Further, recently ICE released FAQ regarding its enforcement priorities specifying that “Expunged convictions will be assessed on a case-by-case basis to determine whether, under the particular circumstances, including consideration of public safety, the expunged conviction should make an alien a priority for removal. For purposes of the November 20, 2014 memorandum, an adjudication of juvenile delinquency is not treated as a conviction and will not, on its own, serve to render an alien an enforcement priority. If a juvenile, however, is tried and convicted as an adult, such conviction will be treated as a "conviction" for purposes of priorities determinations.” It tell us that the same conviction may be treated by Immigration authorities differently for different purposes. For example, in some cases, a person with a juvenile conviction would not need to worry about it at all as such a conviction will not make him/her inadmissible. But if applying for different types of benefits, such a conviction might present a problem.

To sum it up, a person with the record of arrests, charges, convictions, expungement, etc. shall consult with an attorney prior to submitting any types of applications for immigration benefits; shall always disclose the facts of the arrests, convictions, etc. if asked to do so; and shall obtain proof of the resolution of the charges, and in a case of a plea, minutes of the guilty plea so that an attorney will be able to fully evaluate the situation.

26 June 2015
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