Immigration Consequences of a Criminal Conviction

Certain criminal convictions can be grounds for deportation or removal of a non-citizen. USCIS considers a person’s criminal history if they apply for discretionary immigration benefits such as a work visa, permanent residence or citizenship.  While expunging misdemeanor records assist individuals in job and housing searches, the immigration effects of most convictions remain. For immigration purposes, expungements work only for a first conviction of certain minor drug offenses.

Mandatory Reporting

An individual must disclose criminal history even if expunged to the Immigration Service which will consider it in any moral character determination. Lesser and even expunged offenses may still factor into a “moral character” determination which is required for citizenship, permanent residence, cancellation of removal, and other discretionary immigration benefits. Infractions, which cannot be expunged, will also be considered.

Convictions and Immigration

In 1996, Congress enacted the IIRIIRA which included a very broad definition of conviction and defines many crimes, including some misdemeanors, as “aggravated felonies” which are mandatory grounds for deportation. Generally, for Immigration purposes, crimes are considered “aggravated felonies”, “crimes of moral turpitude, or “crimes of violence”. In addition, most drug crimes are mandatory grounds for deportation of a non-citizen who is in the United States.

Expungements and Simple Possession cases

If an immigrant is convicted of simple possession of a controlled substance, a dismissal of that conviction will erase that conviction as grounds for deportation.

Benefits of Expungement on Immigration

Non-citizens should petition for dismissal if:

  • Convicted of simple drug possession with no other convictions (including expunged convictions). Failure to expunge will result in mandatory deportation.
  • Convicted of a lesser offense that is similarly analogous to one eligible for dismissal under the First Offender Act.  This would include possession of drug paraphernalia and being present in a place where drugs are used or sold.
  • Convicted for a non-deportable offense (i.e. a misdemeanor that is not a violent crime or a crime of moral turpitude).