IMMIGRANTS AND CRIMINAL RECORDS

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1 CORI BASICS Stephen A. Russo Volunteer Lawyers Project (VLP) October 29, 2018 IMMIGRANTS AND CRIMINAL RECORDS Statistically, immigrants commit crimes at lower rates than U.S. born citizens and are underrepresented in U.S. prisons. The existence of a criminal record coupled with anti-immigrant bias create barriers to employment, housing, and other opportunities to move ahead in one s life. Criminal record history is examined when a person applies for a green card or citizenship, renews a green card, or applies for a change in immigration status. 2

2 IMMIGRANTS AND CRIMINAL RECORDS CONTD. Criminal Cases are grounds for deportation or exclusion For immigration purposes, a Continuance without a Finding or CWOF may have the same consequences as a conviction even if the CWOF ultimately resulted in a dismissal. A CWOF case is typically dismissed after a defendant has fulfilled the terms of probation. However, CWOF requires a defendant admit to sufficient facts establishing he/or she committed the crime. The admission itself may be grounds for denying an immigration benefit. 3 SEALING OR EXPUNGING DOES NOT ELIMINATE THE IMMIGRATION CONSEQUENCES OF HAVING A RECORD USCIS completes fingerprint based and other background checks that may show the arrest and/or criminal case information even if sealed or expunged. A sealed or expunged record can still be used by USCIS as a basis for denying an immigration benefit and can also result in the commencement of removal (deportation) proceedings. Sealing or Expungement does not allow one to say no criminal record when applying for immigration benefits. In fact, doing so may be considered a fraudulent or false statement and create an independent ground for denying an immigration benefit. 4

3 APPLICANTS FOR IMMIGRATION BENEFITS MUST SUBMIT CERTIFIED COPIES OF DOCUMENTS FROM THEIR CRIMINAL CASES This requirement includes sealed and expunged records FBI and Background Checks conducted by Immigration Officials are often incomplete and often do not include information on how the case ended Applicants have the burden of proving eligibility and providing documentation concerning the criminal case 5 STEPS TO TAKE BEFORE SEALING or EXPUNGING If you are not a citizen, you must talk to an immigration lawyer before sealing or expunging records. Most Immigration Attorneys Advise clients NOT to expunge records. Once a record is sealed, you can no longer look at your file at the courthouse. You can reopen the sealing of a case, but need to do so before your immigration hearing or request for evidence due date. Once a record is expunged, you will be unable to get copies of court, police, probation, or other case records. 6

4 STEPS TO TAKE BEFORE SEALING or EXPUNGING CONTD. obtain MULTIPLE certified copies of the complaint, docket, and police reports before sealing or expunging cases since you will need them in the future. Keep certified copies in multiple safe places 7 IF YOU NEED DOCUMENTS FROM A SEALED RECORD Help from Commissioner of Probation or Court action are options. The Office of the Commissioner of Probation (OCP) can unseal records. Once unsealed by OCP, the record is open and you must petition to seal the records again. NOTE: THIS PROCESS DOES NOT APPLY TO EXPUNGED RECORDS 8

5 IF YOU NEED DOCUMENTS FROM A SEALED RECORD File a Motion to Unseal your record at the court where your case was heard. In a carefully worded motion, you can include a request to reseal the record immediately after it is re-opened. A court cannot unseal your entire record, only the cases from that court. NOTE: THIS PROCESS DOES NOT APPLY TO EXPUNGED RECORDS 9 RECORD CLEARING OPTIONS THAT HELP IMMIGRATION CASES Some non-citizens may have post-conviction relief options such as vacating a judgment or pursuing a sentence modification. Sentence modification or reduction will not eliminate the conviction, but might eliminate the grounds for denying immigration relief. This typically requires consulting with both an immigration and criminal attorney. 10

6 RECORD CLEARING OPTIONS THAT HELP IMMIGRATION CASES CONTD. The new law also makes it easier for survivors of human trafficking to vacate certain criminal convictions M.G.L. c. 265, section 59. Non-citizens should see if they are eligible to vacate convictions as a result of drug lab scandals related to Annie Dookan and Sonja Farak. 11