Immigration and Your Arrest History: What You Need to Know
If you have been to a consultation with any of our Atlanta immigration attorneys, you know one of the first things we ask about is your arrest history. We want to know it all. We don’t care how old your arrest. We don’t care if the judge promised you it would disappear from your record in three years. We don’t care how insignificant the problem. We even ask you about driving citations, mistaken identities, and stuff you were not even guilty for to begin with! Why?
We know it is embarrassing to talk about mistakes from the past. There is indignation in rehashing the mistakes you’ve already paid for, moved on, and made better. Yet, to not address this subject before filing an application with immigration or traveling to the USA can be an even bigger mistake.
Even though immigration is a separate and distinct civil matter, having criminal activity in your past can significantly impact and even prevent your ability to obtain status, keep status, or become a citizen. Lying about your criminal past, even if your criminal past itself is not a problem, can be the basis for the denial of immigration status.
First, let me put this to rest once and for all: your arrest does not magically disappear just because a judge or police officer said it would. This is a myth. Immigration will see it. So, why did they tell you it would disappear? They are referring to a state law that requires that your record be erased for state purposes so that it doesn’t affect your potential to be employed or rent a place to live. This does nothing to conceal your information from the federal authorities. Trust me; if your fingerprints were taken, immigration will know.
It is impossible in one blog post to talk about all the ways criminal activities can be problematic in immigration law, but let’s address four major categories:
Crimes can make you inadmissible. Whether you are convicted or admit to the elements of a crime, or if the government suspects you are involved in certain types of crimes, you could be prevented from obtaining status. There are many crimes included in the list of inadmissible crimes, and they include drug offenses and crimes related to violence, theft, and fraud.
Convictions can make you lose your status and be removable. If you are in the USA lawfully (such as through permanent residency or a visa status), you can lose that residency or status if you are convicted of certain crimes. For example, a crime of domestic violence, an “aggravated felony” as defined by immigration laws, and any drug offense (with the exception of simple possession of marijuana less than one ounce) are among the convictions that could lead you from having status to being placed in removal proceedings.
Criminal acts and convictions can cause your case to be viewed unfavorably. When you’re asking to obtain immigration status (such as residency, citizenship, a student visa, voluntary departure, a work visa, etc.), the officer or judge deciding your application can consider any and all of your contact with law enforcement—in the USA or abroad. They can take that contact into consideration when making a decision on your case. Even if your contact is not a prohibition against an approval, it can be a negative factor. For example, a judge could deny a person with multiple DUIs even though the crime itself is not a bar.
Certain convictions will make you ineligible for a bond. If you are detained by ICE, whether you are here legally or not, certain convictions will make you ineligible for a bond. This means that immigration (ICE or a judge) is prohibited by law from giving you a bond. If you want to fight your case, you must remain in detention for the entirety of the litigation. This could mean months or even years in jail. Furthermore, if you are not a lawful permanent resident and have been convicted of a crime that’s considered an “aggravated felony,” then ICE could process to deport