To Seal Or Not To Seal:
Criminal records can ruin an immigration case, but not always as one might expect. In this article, we explore the top three mistakes immigration applicants make with criminal issues, and why some of them are so unexpected.
For each common mistake, we’ll give a fictional example based on cases we have seen in real life. Immigration cases are complicated and many factors are at play, but these simplified examples emphasize how important it is to get good legal advice before moving forward with an immigration case, especially when criminal issues are involved.
Mistake #1: Failure to Disclose
Example: In 1987, Matt gets into a bar fight and gets arrested for assault. He completes all the classes, pays the fines, and serves his jail time. In 2020, when applying for a green card, Matt figures that the case is so old it doesn’t matter anymore and doesn’t mention it on his application. After he completes the entire case process, he gets a denial notice in the mail.
Matt’s case would likely be denied because he failed to disclose his criminal case. Many people incorrectly assume that a case being old, closed, or completed means it does not need to be mentioned to immigration in an application for a benefit. The problem? A failure to disclose important criminal history to immigration can result in the immigration officer accusing you of lying about your criminal history. In many instances, simply disclosing the case could prevent this issue, and may ultimately allow the application to be approved. Failing to disclose the criminal history can result in worse complications and possibly even fraud allegations against you.
Mistake #2: Getting a Case Sealed
Example: Judy goes shopping with a group of friends. While in the makeup department at the mall, one of her friends starts hiding expensive makeup in Judy’s bag, hoping no one will notice. The security guard stops the group of girls at the door and Judy gets charged with shoplifting. The charges later get dropped after the District Attorney reviews the security footage and sees that Judy didn’t do any of the stealing. Judy is so ashamed of the charges that she gets her case sealed. She honestly discloses her case on her immigration application, but USCIS still denies her case.
Judy’s case might get denied because she can’t prove her innocence. We have seen many of our clients whose immigration cases were complicated tremendously by the choice to seal or expunge their criminal records. Even in cases where the criminal charges were just a minor misdemeanor, sometimes getting your criminal case sealed can result in major headaches for your immigration application down the road. Why is that?
When a criminal case is sealed, it means that the records are no longer available—not to you, and not to immigration. Even when you have the best intentions, like Judy did, and you honestly report your criminal history on your immigration application, a sealed case is a case that you cannot access. This may sound good, as if hiding the information away will be beneficial, but this is where people make a major mistake.
Once a criminal case is sealed, the records cannot be accessed by anyone without first filing a petition to reopen the case, where available. This can take a long time, cost money, and may not always be granted by the court. Immigration deadlines do not often leave room to get a criminal case reopened.
Immigration cases are all about proof. Proof of identity, proof of eligibility, and discretionary proof—meaning evidence that the applicant deserves to get approved. The problem with a sealed criminal case is that it cannot be used for proof. So, in Judy’s case, once her criminal case was sealed, she could not obtain records to show immigration that the charge was a big misunderstanding. Instead, all U.S. Citizenship and Immigration Services (USCIS) can see is a charge for theft of $1,000 worth of merchandise. If she is applying for a discretionary benefit—that is, one that depends on whether she “deserves” the approval—she could be denied because she can’t prove to USCIS that she is not a thief.
If you absolutely must seal your criminal case, always make sure to obtain multiple certified copies of every record in the file. You just might need them in the future, especially under a tight deadline or when the court won’t reopen the case.
Mistake #3 - Getting a Case Expunged
Example: Iram gets pulled over for driving drunk in 2004. She completes her sentence, alcohol classes, and pays all the fines. Later, hoping to get a job as a police officer, she gets the case expunged. In 2019, she applies for an immigration benefit. She honestly discloses the drunk driving case in her application. Iram’s case gets extremely complicated when USCIS asks for a copy of the court records from her drunk driving case, because the criminal court doesn’t have them anymore. She then has to contend with higher legal fees and much more stress.
Many applicants do not realize that even if a criminal case is complete, and even if it is several decades old, applicants for immigration benefits must still disclose it to USCIS. This is because the types of questions asked on immigration applications and petitions are very specific. For example, USCIS might ask if you’ve ever been accused or convicted with a crime. If an applicant answers yes, but can’t show any records of that charge, USCIS might increase its level of scrutiny on the case. Some applicants might even find themselves trying to respond to a Request for Evidence (RFE), explaining why they can’t provide the requested records. In some instances, USCIS may have the authority to deny cases in which the applicants don’t provide everything they have requested, even with proof of the expungement.
Many criminal issues do not inhibit the applicant from receiving the requested benefit, especially minor misdemeanors. Applicants should always be truthful when disclosing their criminal history on immigration applications. But if there’s any doubt at all whether an old criminal case could cause an immigration problem, be sure to consult an expert immigration attorney right away. Sound legal advice can make the difference between a successful case and one caught up in a quagmire of complications.