16. PAST CONVICTIONS - BACK TO BITE YOU?
In case of a conviction, most people believe that: "I did something wrong - I paid my debt to society, I got an expungement - I am clean". But this is not always true for aliens - even for those who have a Green Card. One of the main reasons is that "expungement" or "sealing of record" under State Law, do not help under Immigration Law (which is Federal).
If you are not a legal permanent resident and you are applying for a Green Card - the government wants to know about any arrests in your past, any criminal charges brought against you, any convictions and any punishments imposed on you. If you do have a Green Card and you apply for Naturalization, the government still wants to know the same - about problems that happened after you got your Green Card and - again - problems that happened before you got your Green Card.
If you have a Green Card and you take a trip out of the United States, upon your return the Immigration Officer at the port of entry runs your Green Card through a computer and may get an "alert" on the screen - that you have a conviction. This could trigger a series of questions and sometime the result might be a "referral" for a hearing in Immigration Court.
What does all this mean to you?
First: Your response to questions about a criminal record must be truthful. The government presents you with written questions on Application Forms which you must fill out. Don't assume that if they ask, they don't know the answers. They know the answers, or they will know them, because everything is computerized and all computers are connected. The questions are only to give you an opportunity to lie - and to be caught in a lie, and then you are in real trouble. Therefore: Don't lie on the Forms.
Second: Do not lie to your lawyer. An experienced immigration lawyer would be able to tell you whether a particular stain on your past is a problem at the present time and what could be done - if anything - to overcome the problem. Sometimes, the best advice the lawyer could give your would be: There is no remedy to your problem. You can not get a Green Card (or U.S. citizenship). You better stay away from the Immigration Service and do not file any applications, because if you bring yourself to their attention you may end up with a Removal (Deportation) Order, and - by the way - do not travel, because they will catch you at the port of entry.
But most cases are not so hopeless. An experienced immigration lawyer would do the following:
- Establish the number of the problems that need an evaluation and the dates and places where they happened, by getting FBI and State Police Reports;
- Get the criminal record, beginning with a certified copy of the Docket Sheet;
- Sort and separate mere arrests from actual convictions;
- Classify the convictions to either Felonies or Misdemeanors;
- Reclassify the convictions into "Aggravated Felonies" and/or "Crimes Involving Moral Turpitude" or none of the above;
- Evaluate whether the criminal record creates a problem at this time. If not - file the Application for a Permanent Residency (Green Card) or American citizenship. If yes - continue with the evaluation;
- Consider the dates on which the crimes were committed (sometimes also the date of the convictions)relative to both the present date and to the dates of previous admissions of the alien to the United States;
- Evaluate whether the alien is eligible to any of the crime waivers which the law provides; If not,
- Decide whether the passage of more time would change the situation. If not,
- Advise the alien what to do and what not to do.
Most people with a conviction are not "real" criminals. They had some entanglement with the law. But aliens - with Green Cards or without them - should be careful about approaching the Immigration Service with any kind of application when they know, as they must know, that they had had a problem. Such aliens better consult an experienced immigration lawyer before filing any application.