“But I got that crime expunged.”
Hi, I’m Jim Hacking, Immigration Lawyer practicing law throughout the United States at our office here in St. Louis, Missouri.
Hey people, I need you to remember something, that there’s a big difference in the United States between state government and federal government, that there are 50 states and there’s all these territories and they all have their own criminal law.
And then there’s the federal government. And so, a lot of times people are charged with crimes under state law and they might get pretrial diversion, or they might get some kind of a plea with probation, and then at the end of their probation they asked to have their arrest expunged and they think that that’s going to save them at immigration.
And unfortunately, it is not. So a state court expungement, and for those of you who don’t know, expungement means to go back and to get either your arrest expunged or your conviction expunged after you complete some kind of probation or other rules set forth by the judge.
So let’s walk through this because I just had this happen in a consult over the weekend. So let’s say that you are here from Iran and you are a lawful permanent resident and you’re thinking about applying for citizenship.
And in the year before you apply for citizenship, you have a domestic violence charge. Your wife files a claim against you, and this is all under state law, let’s say that it’s in Virginia, and you deal with the Virginia prosecutor, you have a criminal defense lawyer.
Now in the back of your mind, you still want to become a citizen, but nobody tells you that you by pleading guilty to this, in fact, even just by getting arrested, that this can affect your citizenship.
But we’ll put that to the side right now because what we’re talking about is, let’s say that you go in front of the judge as a green card holder and the judge says, “Oh, okay, well you shouldn’t have done this and I’m going to put you on probation for a year. But if you go to these anger management classes and violence against women classes, then we’re going to stop your probation and we will close out the case.”
So let’s say that happens, and let’s say that you even then hire a lawyer to do extra work for you and that is to get the matter expunged.
So you complete your probation, the judge drops the charges, and you hire an attorney to go back into court and expunge, or delete, or erase from the state court system, that conviction.
Well, here’s the thing, for purposes of good moral character and for purposes of citizenship, and in fact for purposes of deportation analysis and revocation of a green card, you need to keep in mind that the state is different than the federal.
The Virginia courts are different than USCIS, and USCIS doesn’t care about what the state courts do. So the fact that you got it expunged really has no legal effect and I mean, no legal effect. You were still arrested, you were still convicted in the eyes of USCIS.
And so that could really have a negative impact on your ability to stay in the United States, especially if you travel overseas, you might trigger some kind of an analysis as to whether you should be deported from the United States.
And it also is going affect your ability to show that you are a person of good moral character for the last five years.
So again, just because the matter was expunged, or even their probation was completed, you’re still going to have to list it and it’s still going to go onto the analysis.
So, I had a guy who contacted me sort of this Iranian Virginia situation, even though I’ve changed the country of origin and the state, he was wondering why his citizenship case was taking so long.
And I was like, “Brother, I don’t think you’re getting your citizenship because you have a DV charge a year before you applied for citizenship.” So I think he’s actually going to have to wait a full five years from the end of his probation. And of course that the expungement doesn’t really matter. So it’s a sad situation.
And whenever you’re dealing with criminal law and immigration, it’s one of the most complex areas of the law that we handle.
And so you’re probably going to need some help figuring out what is to be done with this crimmigration situation that I have.
That’s what we call it, Crimmigration, criminal immigration.
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