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If I seal or expunge my criminal record, will that protect my immigration status?

The short answer is no for a sealed record, but likely yes for an expunged record.

If you seal a criminal record, it does not erase it for immigration purposes. Therefore, the Department of Homeland Security (DHS) can still use that criminal record to seek to remove you from the U.S. or bar you from certain forms of immigration relief.

If you expunge your criminal record, that means that although you were arrested or prosecuted, the charges were eventually dropped and you were not convicted. As there is no conviction, it is difficult for DHS to use that criminal record against you. There are a few instances where DHS does not need a criminal conviction for a crime in order to argue that you should be deported because of it. Those circumstances involve crimes related to controlled substance traffickers, controlled substance offenses and crimes involving moral turpitude. In very specific and rare circumstances, DHS can try to deport you if they can prove that you admitted to a criminal offense that involved a controlled substance or a crime involving moral turpitude. This would only apply if you are present in the U.S. without having been admitted or paroled (i.e. without inspection) or if you are an arriving alien (someone at the border trying to come into the U.S.).

When you expunge a criminal record, most of the time, it will be nearly impossible for DHS to obtain any documents related to the crime. Therefore, it will be very difficult for DHS to prove that you admitted to anything related to the crime, and therefore, it is very unlikely that an expunged criminal record will negatively effect your immigration status.

The conclusion is not the same for a sealed record. Usually, a person seals a criminal record when they were arrested and ultimately pled no contest to a crime. This plea usually results in a withhold of adjudication and possibly probation. After the person pays all their court costs and applicable fines and successfully completes probation, they can sometimes seek to seal their record from public view. If this criminal case involves an offense that makes someone removable from the U.S., i.e. a controlled substance offense or crime involving moral turpitude, DHS can seek to obtain the sealed record and use it to try to deport the person. In addition, if the person seeks any form of immigration relief, the person seeking relief, NOT DHS, will need to prove that the sealed offense does not bar relief. In order to prove this, the person will need to produce documents to establish that their offense is not a bar to relief. Obtaining documents from a sealed criminal case can be difficult, time consuming and expensive.

The best way to make sure that your criminal case does not negative effect your immigration status is to hire an experienced criminal defense attorney who also knows immigration law. The experienced criminal and immigration attorneys at Shorstein, Lasnetski & Gihon can protect your immigration status during the course of a criminal prosecution. You can save time and money by hiring one attorney, or one firm who does both. Call us today.