Chris Keen

2016

Immigrants:  Expungements will not protect you!

There are lots of valid reasons people want to get an expungement of their criminal offense in Utah.  Criminal cases are public, and having your criminal record out there for everyone to see  can be embarrassing.  Employers may see the record.  The record is, in fact, public and may appear on the internet for anyone to find.  Expungement can be good, because people like to feel that they are free from their past mistakes after they have paid the price.  I have seen clients who seem to have an immense burden lifted from their shoulders once they expunge their criminal records.  However in the context of immigration law, expungements do not have the effect that some people may think, of erasing their conviction in the eyes of the Government.  In immigration law, an expungement generally has no effect on the case in their eyes.   

Much has been written on Utah expungements in general, but there is not a lot out there on the interrelationship between expungement law and immigration law.  Over the years I have experienced and researched quite a few different scenarios and I hope for some of you it will be helpful for me to address a few of the issues.  

When a non-US Citizen discovers that his or her conviction may cause some serious problems for their immigration status, one of the first remedies some often seek, unfortunately, is expungement.  This is almost never the correct answer in the immigration context.  Expungement does not, in most cases, remove the immigration consequences of a conviction.

A disclaimer:  This information is only current as of January 2016.  Utah makes adjustments to its expungement laws from time to time, and immigration rules are constantly changing, and in fact may be changing with how expungements are viewed in the immigration context.  

EXPUNGEMENTS IN GENERAL

What is an expungement?

In Utah, an expungement is a process of sealing the criminal records, so that the public cannot view or copy the records.  The police agency that made the arrest will seal the police report, the jail will seal any custody records, the courts will seal the criminal records, etc., each agency taking its own actions to comply with the judge's order of expungement.  Utah's Bureau of Criminal Identification even notifies the FBI to remove the incident from the NCIC database.  If your records are expunged, and you subsequently do a background check, the check should show no record instead of listing your convictions.

What an expungement is NOT

An expungement doesn't change history.  It doesn't erase an actual event from reality.  I had a client who expunged his record call me and say that he still found his criminal record on a private internet website.  Eventually it was removed but this illustrates how it's hard to put the proverbial cat back in the bag when something appears on the internet.  The good news is the courts will seal an expunged record, the jails will, the police departments will.  The wild card is what may be floating around on a private internet site.  That cannot be erased by an expungement.  

Do I qualify for an expungement?

The expungement rules can be confusing.  First, some crimes cannot be expunged in Utah.  

Capital Offenses like Murder

First Degree Felonies

Violent Felonies

Automobile Homicide

Felony DUI

Registerable Sex Offenses

In addition you cannot get an expungement if you have a pending criminal case, or if you have:

Two or more Felonies;

Three or more Class A Misdemeanors;

Four or more Class B Misdemeanors;

Five or more total crimes of any offense level, not counting infractions and most traffic offenses

Some clients may appear to not qualify at first due to having too many convictions, but it's worthwhile to have an attorney review the case.  I have helped clients who have more than the allotted number of offenses to vacate an offense, dismiss an old plea in abeyance that had not yet been dismissed, or lowered the offense level of one or more of their offenses, and then they have become eligible for expungement!  

How much time do I have to wait before I can get an expungement?

There is also a waiting period before you can expunge a criminal conviction.  (Note that if an arrest or investigation doesn't result in a conviction and charges aren't going to be filed, you can get an expungement after 30 days).  The times below do not start at the time of the offense!  The time starts accruing after the case is completely finished.  That means that not until probation is completed can you expunge a case.  

10 years:  DUI and Possession of a Controlled Substance

7 years:  Felony

5 years:  Class A Misdemeanor

4 years:  Class B Misdemeanor

3 years:  Other Misdemeanor or Infraction

Utah'S 3 Classification of Crimes

Offense Level Max Sentence

Felonies

1st Degree Felony:   5 years to Life in prison

2nd Degree Felony: 1-15 years in prison

3rd Degree Felony:   0 - 5 years in prison

Misdemeanors

Class A Misdemeanor: 365 days jail

Class B Misdemeanor: 180 days jail

Class C Misdemeanor: 90 days jail

Infraction                               No jail time, fine up to $750

Note:  If charges were dismissed or never filed, you only have to wait 30 days for an expungement.  Example:  One client was arrested for DUI and other crimes.  The prosecutors declined to file the charges in the district court.  Once 30 days had passed, my client filed for expungement of his arrest record.

What is an “infraction”?  In Utah, an infraction is an offense level that carries no possible jail time, and a maximum fine of $750.  It can still be expunged according to the rules.