February 16, 2011
By Staff Reporter
By Harry Keaney
Applicants for U.S. citizenship might do well to remember that the Immigration and Naturalization Service neither forgives nor forgets.
As far as the INS is concerned, once one has been convicted of any criminal office, regardless of whether that conviction has been erased from one’s record, that conviction is still grounds for possible deportation or denial of citizenship.
According to the Emerald Isle Immigration Center, a administrative decision last March changing INS policies toward permanent U.S. residents with any type of criminal convictions may force some citizenship applicants to consider whether they want to withdraw their application.
The EIIC points out that last March 3, the board of immigration appeals held that an action by a state court to "expunge, dismiss, cancel, vacate, discharge or otherwise remove a guilty plea or other record of guilt or conviction by operative of a state rehabilitative statute" has no effect for immigration purposes.
This means, according to the EIIC, that once a person is convicted of a criminal offense, he remains convicted in the eyes of the INS and may be ineligible for naturalization, and may possibly be deported, even if the court erases the conviction from his criminal record.
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This decision is retroactive and applies to all applicants for naturalization, regardless of when an application was filed.
According to the EIIC, the decision applies to those who used a state’s "post-conviction relief" as a way to clean up their criminal record and erase a prior conviction. Convictions erased from the record after the completion of probation, counseling, or other requirements will be considered for immigration purposes.
It does not, however, include charges dropped after an arrest before any plea was entered, convictions reversed after direct appeal, or vacated convictions on constitutional grounds.
However, the new rule may affect a green card holder’s ability to travel outside the U.S. Certain convictions may make a permanent resident inadmissible and/or deportable.
The EIIC advises that all those with pending citizenship applications who have criminal convictions that have been erased to discuss the implications of the new rule with legal counsel before attending the naturalization interview.
Attorney referral may be obtained from the Emerald Isle Immigration Center at (718) 478-5502.