Expungements have taken a more significant role for immigrants. With enforcement taking a center stage in politics, non-citizens with criminal convictions may be exposed to immigration consequences that are very severe.
See my blog Part I on Expungements for the basics.
Part II discusses some common questions immigrants and others have about expungements in Utah.
If my conviction is expunged, do I still have to disclose it?
That all depends. Utah law states that “[u]nless otherwise provided by law or ordered by a court of competent jurisdiction to respond differently, a person who has received an expungement of an arrest or conviction under this chapter or Section 77-27-5.1, may respond to any inquiry as though the arrest or conviction did not occur.”
That means that, for example, on a job application (except maybe to the federal government) if you are asked about a conviction, if you had it expunged you can truthfully answer you have no conviction because in the eyes of the law you do not. Not so with immigration or in other limited situations.
For immigration purposes, if you are before the Department of Homeland Security, and are being asked about your criminal history, you must always disclose even an expunged conviction. This is because it falls under Utah's expungement disclosure exception where it is: “otherwise provided by law”. A question on the current Form N-400, the application for naturalization, it asks if “you have ever been arrested...or detained by any law enforcement officer,”. The form says “if any of the [questions] apply to you, you must answer yes even if your records have been sealed, expunged, or otherwise cleared.”
If an immigration officer asks you about your criminal record, you also must disclose it or face potential charges, including but not limited to misrepresentation.
If you fail to answer yes to the above question, and you have had a crime expunged, you may be found to have committed a misrepresentation, and you can be denied or worse.
Utah law permits federal agencies to request details on expunged records. Remember, an expunged record is better described as being sealed from public view, and is not deleted or destroyed merely because of the expungement. Of course, a court may destroy an expunged record as it would normally destroy old files, but the expungement does not trigger the destruction.
How does the expungement process work?
First, you must determine if you even qualify for an expungement. See above for info on whether you qualify or not. Things like the length of time that has passed since your conviction, the number of convictions, and whether you complied with the court's orders will be taken into consideration.
Then you apply to Utah Bureau of Criminal Identification for an expungement certificate. You do this by submitting a form that can be found on their website. You do need to have your fingerprints taken for the form. We do that here in my office for my clients.
After you request the certificate, if BCI thinks you are eligible, they send you a letter and then ask for a fee depending on how many certificates of expungement you need.
You will then attach the certificate to your Petition for Expungement. You can find a sample on the utcourts website. You also have to serve a copy on the prosecutor of the case.
In most cases either the prosecutor won't respond at all, or will file a non-opposition with the court. Then the judge will usually just sign the order of expungement.
If the prosecutor objects, or if the judge wants to, a hearing will be scheduled. Once the judge signs the Order, you need many certified copies of the order because you have to send a certified copy to several different places. If you do not send the certified copies to the agencies, your records will not be expunged. Most of the time you will send them to the police agency that was involved, the jail, the Department of Corrections, the DMV and don't forget to send one to BCI so they will remove it from the State database and from the FBI records. I have my immigration clients make two additional certified copies to keep for future reference.
Do I need a lawyer to do an expungement?
Absolutely not. However there are several steps to it and you may want the help of an experienced lawyer. You can do it on your own by going to BCI and starting the paperwork. However many clients find the procedure tedious and hard to understand. Many find there are not many people to answer questions that arise in the multi-step process. But the process isn't the hard part here. The difficult part is the analysis in determining how or if an expungement could affect your immigration case. I would strongly recommend that a non-US Citizen consult an attorney BEFORE applying for an expungement. Otherwise it could be costly or in some cases impossible to fix the damage an unwise expungement could cause.