Criminal “convictions” have severe consequences
(07/15/08)

If you are convicted of a crime, it could mean your dream of a good life in the U.S. may be totally destroyed. The laws that govern one’s ability to enter or remain in America are very complex dealing with regulations, case laws, and immigration requirements, not to mention federal and even state laws. What may seem like a minor offence with minimal criminal consequences, can actually result in very harsh consequences in regard to your immigration status. For example, a “simple” case of shoplifting could result in deportation.

What is considered a “conviction” by immigration law may differ from what standard criminal or civil law may define as a “conviction”. Where the two are in agreement is when a person is formally pronounced “guilty” in a court of law.

However, immigration laws can consider a person “convicted” even if there is no guilty verdict. This is especially true when it’s the person’s first offence. Civil law may give this person a second chance, but under immigration law, it could be considered a “conviction”. For this to be the case, two conditions have to be met.

• First condition:
• A judge or jury finds the person guilty.
• Or the person enters a guilty plea or no-contest.
• Or the facts in the case are adequate to find guilt.
• Second condition:
• A judge has ordered the individual to be punished or restricted in his or her activities. This could be such things as a fine, probation, doing community service or enrolling in anger management or alcohol abuse classes.

For most people charged in a crime, deferred adjudication, or probation, would be considered a preferred outcome. This means that a person admits his or her involvement in the crime and their guilt is postponed until a future date. Then, if the person has remained a good citizen and not been charged with any other crime during the time of probation, the original charges are dismissed. This is good news for an American Citizen because this person would not have a conviction on their record.

However, this is not the case with someone who is in the U.S. seeking American Citizenship or on a visa. Probation would result in a conviction under immigration law. This is because both conditions exist; an admission of guilt and restrictive activity. Furthermore, this individual might have their immigration benefits suspended during their time of probation.
Often, a case that is dismissed by a court of law can be considered a “conviction” under immigration law. Only if a case if dismissed because the prosecution has failed to prove guilt or based on the merits of the case, can a “conviction” be avoided. Therefore, the reason for the case dismissal must be considered.

Many times, it depends on the procedures enacted by a state or city. In some states, for example, a case can be dismissed in a pretrial scheme and therefore the person would not be forced to admit guilt, hence avoiding a “conviction” under immigration law. Other schemes allow for the person to avoid appearing before a judge. Or do not require them to admit guilt, thus allowing the person to serve in ‘first offender’ programs. This would simply require them to participate in “self improvement” classes such as parenting, alcohol awareness or anger management. Then, the case would be dismissed when the class is completed. Therefore, this person would avoid a “conviction” because they were not required to admit guilt or not found guilty.

Because each case is unique and depends on local laws, you are advised to involve both your immigration and criminal lawyers if you should be arrested. Furthermore, to insure the best results in your case, such collaboration should take place immediately and not wait until a judgment has been rendered.

Many believe that if their conviction is expunged, or sealed, this will mean they have a “clean” record. This is not the case. If you have ever been arrested, cited, charged, or convicted for a crime, you will have to reveal the facts on all immigration forms you fill out. It doesn’t matter if your court case was expunged, deleted, or sealed; for immigration purposes, it still exists. There are very few exceptions to this rule. When background checks are made on you, law enforcement personnel can access these records. Having a conviction expunged only hides it from the public record.

Actually, when your criminal record is expunged, it makes it harder for you and CIS to prove the results of your case. Therefore, it is advisable to make several certified copies of what is known as your “Disposition Information” before your case is expunged. For this reason, many people decide to hold off on having their case expunged until they become U.S. Citizens, especially if the offense will not be a problem when they seek employment or pertaining to other civil matters.

As you can see, having a conviction on your record can result in many difficulties when dealing with immigration issues. Therefore, it is very important to have an experienced immigration attorney on your side, as well as a good criminal defense lawyer whenever you find yourself at odds with the law.