People who are not United States citizens very often have the burden of proof in many aspects of immigration law. This is true whether you are applying for admission to the United States at a consulate overseas or at a port of entry, or trying to obtain your green card or become a U.S. citizen. A non-citizen has the burden of proof to show they are eligible for a visa, admission or the immigration benefit they are seeking. Having the burden means that the non-citizen is responsible for proving the negative, i.e. that you are not inadmissible and not ineligible for the relief or benefit.
In the context of a non-citizen with a criminal history, having the burden means that you are responsible for obtaining your own arrest and conviction records and providing them to the government. The government can deny you admission, relief from removal or the benefit you are seeking if you are unwilling or unable to obtain the records and prove you are not ineligible for whatever you are seeking.
Normally, anyone can go to the courthouse where they were prosecuted or law enforcement agency that arrested them and request copies of the certified documents that the immigration officers will want. However, this is not the case if the non-citizen successfully had their criminal arrest expunged or criminal case sealed.
We very often help people who were arrested for a crime obtain an expunction of their record if the charges were dropped. When you successfully expunge your record, the criminal judge will order the court to destroy the evidence that you were ever arrested. We also help former criminal defendants seal their criminal court records when they have never been formally convicted of a crime and this removes the case information from public record.
However, when we are advising a non-citizen who wants to seal or expunge their record, we will very often tell them not to do so until they become U.S. citizens. This may seem like odd advice, but we advise this way specifically because the non-citizen will have to be able to access all of the records from their criminal case in order to prove they are eligible for admission to the U.S. or for a green card or to become a citizen. Sealing or expunging your record will not hide it from immigration background checks and you cannot deny that you were ever arrested or prosecuted on immigration forms simply because you successfully had your record sealed or expunged.
A non-citizen who ignores this advice and has their record sealed or expunged will face major headaches and the additional costs of trying to get the record unsealed or re-created so they can prove to immigration that they are eligible for whatever benefit they are seeking.
A criminal defense attorney who does not know immigration law may advise a non-citizen that sealing or expunging their record will help their immigration case or worse yet, remove the negative immigration consequences. This is completely incorrect and yet another reason why any non-citizen who is facing criminal prosecution should consult with and hire an experienced immigration attorney as early in the criminal case as possible.
John Gihon is an experienced immigration and criminal defense attorney at Shorstein, Lasnetski & Gihon. Call today for a free consultation to see how we can try to help you protect your immigration status in criminal court and defend you from deportation in immigration court.
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