An immigrant or visa-holder who commits a crime while in New Jersey is still eligible to have his/her criminal record expunged, provided he/she meets the standard requirements for expungement. The process of expunging a New Jersey criminal record for a foreigner is the same for all, regardless of immigration status. However, an expungement does not erase the crime—it only isolates it so that a limited number of individuals or government agencies can view it. An immigrant/foreigner with a criminal record should absolutely consider getting his/her record expunged. Note that in some cases, expunging a record may not be enough; an immigrant may also need to apply for a criminal waiver.
How Expunging a Criminal Record Can Help an Immigrant/Foreigner
By having one’s criminal record expunged, a person can legally deny that the crime took place on most applications and in most interviews. This means it will no longer affect a person’s job eligibility, access to housing, availability of financial aid, or admission to colleges or professional certificate programs.
In addition, police cannot see an expunged criminal record. That means a person who is detained by police can legally deny having had any past convictions (although a person should always seek advice from an attorney before speaking with police in such circumstances).
When Immigrants MUST Disclose Expunged Criminal Convictions
Unfortunately, a noncitizen applying for a visa, legal residency (green card), or U.S. citizenship must disclose all convictions, even if the record has been expunged. More than that, he/she must admit to any run-ins with the law, including:
- Crimes for which one was not arrested.
- Any incident (even if non-criminal) that resulted in an arrest, citation, or being detained by a law enforcement officer.
- Any charges for committing, attempting to commit, or assisting in committing a crime or offense (even if it did not result in a conviction).
- Criminal convictions.
- Enrollment in alternative sentencing, a rehabilitative program or diversionary program.
- Having been issued a suspended sentence, placed on probation, or parole.
- Any other instance in which one was sent to jail or prison.
Why Get an Expungement if I Must Disclose the Conviction Anyway?
Even though the Department of Homeland Security is able to access criminal records after they have been expunged, there are still many benefits to doing so. For example, until such time as one needs to renew a visa, apply for a green card, or apply for citizenship, the conviction can still limit job, housing, and educational opportunities. In addition, judges grant expungement when overlooking a person’s criminal history is “in the public interest,” a fact which can be leveraged in the application for the visa/green card/citizenship.
Crimes For Which a Foreigner Can Be Deported
An immigrant or foreigner can be deported if he/she is convicted of what the Department of Homeland Security calls a “crime of moral turpitude” (or “CMT”). This is concept is very vague and not well defined. Courts have ruled that a CMT includes any kind of “fraud, larceny, and intent to harm persons or things.” This may include offenses such as shoplifting, identity theft, aggravated assault (but not simple assault), robbery, burglary, and most types of domestic violence or abuse. In some cases, DWI/DUI can also be considered a CMT. Of course, serious felonies such as murder, rape, or manslaughter can also result in deportation.
Defenses Against Deportation
A foreign person who is at risk of deportation should hire an attorney right away to defend his/her right to remain in the U.S. An attorney can use knowledge of the statutes to explain why a particular crime does not constitute a CMT. The right attorney will understand both criminal and immigration law, so as to ensure one’s best chance of avoiding deportation.
Crimes That Make One Inadmissible to the U.S.
Other crimes that do not necessarily make one a priority for deportation may still limit one’s ability to apply for a visa, legal residence (green card) or U.S. citizenship. Such a person is deemed “inadmissible.” A person who commits a crime within the first five years of entering the U.S. can be deemed inadmissible. In addition, a person who commits two crimes while in the U.S. can also be deemed inadmissible. Specific crimes that make one inadmissible include:
- A crime of moral turpitude, as described above.
- Controlled substance violation.
- Conviction of or participation in controlled substance trafficking.
- Prostitution or other commercialized vices.
- Human trafficking (including conspiracy to commit and aiding and abetting in such crimes).
- Severe violations of religious freedom while serving as a foreign government official.
- Money laundering.
- U.S. security violations such as espionage, terrorism, or sabotage.
Waivers for Inadmissible Crimes
A foreign person who has a criminal record that may render them inadmissible can obtain a waiver for certain crimes. The waiver requests that the government overlook the conviction and attests that the person filing is not a safety or security threat. Crimes for which an immigrant can obtain a waiver include:
- Prostitution or other unlawful commercialized vices.
- A crime of moral turpitude (CMT), excluding murder or torture.
- Simple possession of 30 grams or less of marijuana.
- Multiple criminal convictions with a total sentence of at least five years.
In order to be eligible for the waiver, one must be a spouse, parent or child of a U.S. citizen or legal resident (green card holder) AND show that a denial of the waiver would result in serious hardship for the relative. Alternatively, the person can also be a VAWA (Violence Against Women Act) self-petitioner.
In addition to that, the applicant must also meet the following criteria:
- The crime was committed at least 15 years ago.
- The person can show that remaining in the U.S. would not endanger the national welfare, safety, or security of the United States.
- The person can demonstrate that he/she has been rehabilitated.
Why Get an Expungement if I Can Get a Waiver?
As mentioned above, until such time as one plans to apply for a green card or citizenship, the expunging the criminal record can open up job opportunities and educational opportunities that can later be leveraged to show that one has become a productive member of American society. Testimony and other materials used to obtain the expungement—including a ruling that isolating the criminal record is in the public interest—can also be used to increase the odds of getting the waiver, which in turn increases the odds of getting the green card/citizenship.
Is a Waiver More Important than an Expungement?
A foreigner living in the U.S. who is convicted of a crime may need both a waiver and an expungement, depending on the circumstances. For example, a person who already has his/her green card and does not plan to apply for citizenship can get an expungement to avoid the stigma and other consequences of a criminal record. However, a person who is a U.S. visa holder and intends to apply for a green card should seriously consider both.
Who Should I Contact for Help With Expunging A Criminal Record Or Obtaining a Waiver?
If you or a loved one is concerned about the impact that a criminal conviction will have on one’s immigration status, you need help from an attorney experienced in such matters. The lawyers of the Rosenblum Law Firm have helped foreign nationals and legal residents with all manner of legal matters, including criminal defense, expunging criminal records, and more. Email the Rosenblum Law Firm or call 888-815-3649 today for a free consultation about your case.