New York Lawyer's Legal Updates

When Vacated Conviction Sill Counts For Immigration Purposes

Author: New York Immigration Attorney Alena Shautsova

You had your conviction vacated, and now you believe you have a “clean record.” It is time for your Immigration application, and you are wondering if you even need to mention that you were convicted, after all, that conviction is no longer valid...

Well, it might be true that you are “not convicted” for Criminal purposes any longer, but you might be still convicted for Immigration purposes, and even worse that conviction may make you inadmissible or even deportable.

First of all, this article does not address “alternative” criminal case resolutions such as adjudication in contemplation of dismissal, deferred adjudication or “nolo contendere” pleas.

Here, we discuss convictions only that came to be either after a jury trial or a guilty plea.

If your conviction was vacated and you would like to know if it will affect your Immigration case, you need to do the following:

  • You need to collect all available documents related to the charges;
  • You need to collect all available documents related to the resolution of the chargers: certificates of disposition, and minutes of a guilty plea, sentencing, and perhaps a probation report.
  • You need to collect all documents related to the vacatur of the conviction: motions and judge’s decision.

The last point is especially important, and here is why. For Immigration purposes, a person may be found “guilty” of a crime not only when he/she is convicted, but also when he/she admits committing the crime. Admission is sufficient; no documents are needed for an Immigration officer to find a person inadmissible.

When a conviction is vacated, an Immigration officer or a Judge will look at the reason for the vacatur to determine if that conviction still stands for Immigration purposes. Sometimes, the answer is not so clear, and depending on how well the point is argued, the scale can tip in favor of either side.

But here is a rule of thumb: if a conviction was vacated for rehabilitation or immigration purposes, it would still count as a conviction. However, if a court with jurisdiction vacates a conviction based on a defect in the underlying criminal proceedings (procedural or substantive), the respondent no longer has a “conviction” within the meaning of section 101(a)(48)(A). See Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), rev’d on other grounds, Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006). See also Matter of Marquez Conde, 27 I&N Dec. 251 (BIA 2018).

And the last point: for Immigration purposes, one always must disclose all arrests, all chargers and all convictions on Immigration applications, even if those charges were dismissed and convictions were vacated.

If you need a consultation regarding a criminal charge in connection with your Immigration case, please call us at 917 885 2261 or email at office@shautsova.com.

20 April 2018
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