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Expungements Part III

Posted by Christopher Keen | Jul 27, 2017 | 0 Comments


Why doesn't expungement work for immigration law?

Expungements aren't recognized by immigration law, generally speaking.  This is because in immigration law, a conviction that is erased or expunged merely because the individual has behaved during probation and complied with the court's orders is not recognized by federal immigration law.  In other words, you can have your record expunged, but immigration will STILL consider those expunged crimes as convictions.  

Burden of proof.

Remember that whoever has the burden of proof in immigration court may be affected by an expungement more.  For example, the Government (Department of Homeland Security) bears the burden of proving Lawful Residents are deportable in most 237 removal proceedings.  This means that they must find the certified records and submit them to the court.  If they do not know of their existence, or if the court will not issue copies, then the Government may have a difficult time meeting their proof.  

On the other hand, if the non-US Citizen has to prove eligibility for citizenship, and there are not records of the conviction, then the Government may find that the applicant has not met his burden of proof and thus cannot grant his application.

Did expungements ever work for immigration law?

Yes!  In the past, and for many years, an expungement did work to erase a conviction for immigration purposes.  The Board of Immigration Appeals held as much in Matter of V-, 560 33/701 (B.I.A., April 10, 1943).  However in 1959, the Attorney General began to whittle down the effectiveness of expungements.  In Matter of A-F-, 8 I. & N. Dec. 429, 1959 WL 11595 (A.G. 1959), an expunged drug conviction was found to still be a basis for deportation.  

In 1996 a sweeping new immigration law, called IIRAIRA, was passed.  IIRAIRA was a watershed change of the federal immigration laws that among many other changes, modified the definition of what was considered a “conviction”.  “Conviction” was newly defined as a formal judgment of guilt by a court.  In looking at expungements, and considering IIRAIRA's new definition of “conviction”, the Board of Immigration Appeals changed the law on how immigration looked at expungements.  Starting in 1999, expungements no longer were recognized as a way to erase a conviction.

In Matter of Roldan, 22 I. & N. Dec. 512, 1999 WL 126433 (B.I.A. 1999) the Board of Immigration Appeals held that the conviction happens at the time of a finding of guilt, and an expungement pursuant to an Idaho  “state rehabilitative statute” does not eliminate the conviction for immigration purposes.  This policy has resulted in deportations for people who may have only been guilty of relatively minor offenses.  

The majority in Roldan simply got it wrong, but it is still the law. I don't agree with this decision.  I'm not the only one.  Five of the eleven board members in the Roldan case dissented at least in part with the decision.  The Ninth Circuit also reversed Roldan at least in part.  If a state court believes a person has been rehabilitated, and has sealed or erased the conviction, why do the immigration authorities have a right to hold that expunged conviction against them?  I think that full faith and credit should be given to the state's actions when a crime is expunged.  In addition, the state is much more involved with defendants, can monitor their progress more closely, and can determine when a person really deserves expungement.  Immigration authorities, by applying Matter of Roldan, ignore these factors completely.  Immigration law becomes harsh and we see long-time lawful residents facing deportation for sometimes a relatively minor offense that has been expunged.  A crime that is expunged still counts as a conviction in immigration law.  

Do I have to be a US Citizen to get an expungement?

No, there is no requirement in Utah's expungement laws to be a citizen in order to get an expungement.  But a non-US Citizen should be very careful before expunging an offense.  See below the section called “Is expungement ever appropriate for non-US Citizens?

Are there some places in immigration law where expungement may actually help?

Under the DACA program and in the priorities outlined on November 20, 2014, the Department of Homeland Security appears to leave the door open on the expunged conviction issue.  Maybe the Department will ignore a conviction if it is expunged.  Time will tell.  

If expungements won't work for immigration, how can I get a conviction to be validly erased for immigration purposes?

A conviction that is vacated and a plea that is withdrawn on a Constitutional ground, such as ineffective assistance of counsel or a violation of due process, will be recognized by immigration law.  One way this can be accomplished through Post Conviction Relief and via Utah's Post Conviction Remedies Act.  The process is time consuming, can be expensive, and has no guaranty of success.  But we have done so successfully for many clients.  Talk to a lawyer to see if you may have a good case for Post Conviction Relief.    

What if a conviction is expunged for rehabilitative reasons AND on constitutional grounds?

Sometimes a conviction is vacated on more than one reason or ground.  For instance, one can get an expungement based on the state's expungement statute, and in addition, at the same time and in the same order, the court can order that the conviction is vacated due to a Constitutional violation.  I think that if there is at least a partial basis in a Constitutional or substantive defect in the proceedings, that the expunged conviction should NOT be counted against the non US Citizen.  While I haven't seen a published court decision that agrees with me, I have had cases where the Department of Homeland Security has released my client when the crime was vacated on constitutional grounds and on rehabilitative grounds.

The Board of Immigration Appeals in another case important to this topic, in Matter of Pickering, clearly states that in order to determine on what grounds the conviction was vacated, the court looks to several factors: the law that is the basis of the order, the terms of the order itself, as well as the reasons in the motion.  So if the motion states that there was a Constitutional defect, in addition to discussing the rehabilitation of the defendant, then that should be an appropriate basis for dismissal.   The holding in Pickering mentions that if the sole reason for a dismissal is rehabilitative, then it is not going to be recognized for immigration purposes.  It does not say that even if an order is partly on rehabilitative grounds, it will not be recognized.  

Is expungement of a crime under the Federal First Offender Act recognized in immigration law?  

Yes, in Federal Court a crime that qualifies under the FFOA that is dismissed will not be considered a conviction for immigration purposes.  However, a state-expunged drug crime, even if it would have been considered a crime eligible for FFOA treatment in federal court, will still be considered a conviction for immigration purposes.  There is an exception to this for a period of time prior to 2011 in the 9th circuit.  See the Lujan-Armendariz case.  

Is expungement ever appropriate for non-US Citizens?

I have talked with several practitioners who say a non-US Citizen should never expunge a conviction until he or she becomes a US Citizen.  Whenever somebody applies for naturalization, or for adjustment of status, those records will need to be available to present to the Department of Homeland Security.  Certified copies will be needed.  In some cases, a conviction prevents a person from becoming legal, and they may need to do post conviction relief and modify, reduce, or vacate the conviction.  If the conviction is expunged, these things become very difficult to do.  While I understand that reasoning, I don't think that it applies in every case.  

Whether to expunge a case for a non-US Citizen should be evaluated on a case by case basis.  For example, one person may be a lawful resident, and may have a conviction that is preventing him from getting a job.  When their background check is done, by a large employer for example, it will show a conviction that may disqualify him from employment, or that may trigger uncomfortable questions and require tough explanations.  If he could expunge his record, he could secure better employment.  The attorney can simply evaluate the matter - will post conviction relief or other modifications be necessary in the future?  Or does the person merely need to wait a period of time before filing for naturalization or other immigration relief?  If no modifications are necessary and one is simply waiting for time to go by, the attorney can obtain sufficient extra certified copies of all relevant documents, and then expunge the record, and then have the expunged conviction documents ready to submit to the Department of Homeland Security when necessary.  This is just one example of a possible reason for a non-US Citizen to expunge a case.

Other times, I have expunged records for Lawful Residents who have problems at the border due to a particular criminal conviction.  Expungement can serve to remove the record from being seen by the immigration officers at the border, and unnecessary delays and hassles can be avoided in the future.  

In some cases, a non US Citizen may be able to expunge their record.  However this should only be done after careful consultation with an attorney who understands all these issues.  

Expungements can be tricky for the non-US Citizen.  Talk to a lawyer to review your options.

About the Author

Christopher Keen

As the founding attorney for Keen Law Offices, LLC, J. Christopher Keen received a Bachelor of Arts degree in History from Brigham Young University. He then went on to receive his Juris Doctor degree from J. Reuben Clark Law School at Brigham Young University. Since that time, he has been admitted to practice before all of the state courts in Utah.


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