Applying for an Immigration Benefit with a Criminal Record

 

If you are planning on applying for your Green Card, already have a Green Card and need to renew it, or would like to apply for citizenship, but you have had some trouble with the police or immigration, DO NOT APPLY TO RENEW OR BECOME A CITIZEN WITHOUT SEEKING LEGAL ADVICE FIRST! This even applies if you are planning on applying for Deferred Action for Childhood Arrivals (DACA or "Dreamers"). 

 

I cannot stress enough the importance of making sure that your criminal record does not effect your immigration status before you apply for ANYTHING.  There are certain types of crimes that make you ineligible for immigration benefits, including renewing your Green Card that you have had for the past decade or two (or three).  You may think something you did 15 years ago couldn't possibly have an affect now, or you may have even renewed your card once or twice since your run in with the law so why can't you renew now?  In many cases you would be WRONG.  Immigration procedures have become much more stringent in the past ten to fifteen years, resulting in the placement of a record number of immigrants in removal proceedings. 

 

Let me give you an example:  I represented a young man who had had his green card since the 1980s.  When he was 18 or 19, he fell in with the wrong crowd and was convicted for possession of drugs for sale.  Eleven years after being convicted and serving his time, this young man attempted to renew his green card on his own.  He didn't believe his conviction was going to hurt him because he had served his time and changed his ways.  He was married with 4 beautiful children, owned his own home, and had been working at the same place for several years.  He was wrong.This conviction, despite it's age, rendered him removable from the U.S., and because it involved drugs, it also meant he could be detained by Immigration for the entire duration of his case.  For this case we had to reopen his criminal case and vacate it in order for him to even be ELIGIBLE to keep his green card.  If we were unable to do that, he would have been removed from the U.S. without even getting the chance to make a case before an Immigration Judge.  The whole process to OVER A YEAR and he was in immigration custody the entire time.  Thankfully, we were able to win his case, but had he sought my assitance before filing to renew his card, he could have avoided spending a year of his life in immigration custody for a crime he had committed a decade before.

 

This type of thing does not only apply to felonies or drug crimes, there are also misdemeanors which would put you in the same position as the young man I described above.  Just because criminal law calls something a "misdemeanor" doesn't mean that immigration sees it that way. 

 

All of that being said, just because you have a criminal record, does not necessarily mean all is lost.  There are several ways to amend or even erase your criminal record so that you can then apply for a benefit with immigration.  These are often complicated cases and not many immigration attorneys know how to do these types of cases as they are really considered to be criminal cases.  This type of help is called "Post Conviction Relief" and the attorney helping you has to know both the intricacies of Criminal Law in your state AND how those crimes affect your immigration status, in order to be able to help you.  Make sure that the immigration attorney you are working with has experience with this, or is at least working with a criminal attorney, so that you can ensure your case is being handled from every possible angle.  ALSO, if you are involved in criminal proceedings right now, make sure your criminal attorney consults with an immigration attorney!!! This is KEY to making sure that you avoid immigration consequences of your conviction later.  Often times, criminal attorneys are just trying to get you the best deal -- but that doesn't always translate to the best immigration consequence and lets face it, a lower fine and probation instead of jail time is not going to mean a whole lot if you can get DEPORTED afterwards.

In a future blog, I will explain with more detail, the grounds on which a conviction can be "vacated" or when an "expungement" is enough...but even with that information, as always, you need to SEEK COMPETENT LEGAL COUNSEL.