Arrested or Convicted for a crime? Think Again Before Checking No.
by Ken C. Gauvey
Have you ever been arrested or convicted of a crime? Before you answer that question, you may want to read further. There has been a great deal of confusion regarding the definition of "conviction" in immigration matters. Part of the confusion stems from the fact that the state court definition of conviction and the immigration courts definition do not necessarily mean the same thing. For example, a state court may establish a post-conviction method of vacating a finding of guilt, thereby nullifying the conviction in state court. However, this does not eliminate the conviction for immigration purposes. Therefore, while the alien may not have a criminal record after having their verdict vacated, for immigration purposes the conviction stands and the alien is still subject to the penalties associated with it.
The definition of conviction is contained in INA ¡ì101(a)(48). Essentially, this definition states that if a finding of fact is made, whether by the court or by admission by the alien, and a penalty is imposed, then the alien has been convicted. The penalty does not have to match the crimes charged. In other words, an alien can admit facts that would make him guilty of burglary, but, due to a plea agreement only be found guilty of a misdemeanor nuisance and in immigration court this would constitute a conviction for burglary. This definition also encompasses any situation where a court may issue a suspended penalty such as probation or suspended sentences. These still constitute a penalty and therefore still meet the definition of conviction. This is also true for pre-conviction relief. For example, if programs such as probation before judgment require an admission of facts constituting guilt, then the alien would have met both requirements under the definition of conviction in that a finding of fact and a penalty, probation, was imposed.
In addition, post conviction relief has no effect for immigration purposes unless the relief is due to some procedural or constitutional defect in the previous proceeding. For example, state rehabilitation efforts resulting in the setting aside of the verdict would have no effect on immigration matters, the alien would remain convicted. The vacator for the conviction must be for procedural or substantive defects in the underlying criminal proceeding and not for reasons solely related to post-conviction events such as immigration hardship.
Finally, there is a significant difference between arrest and conviction. Many immigration forms require the alien to disclose any prior arrests. Arrests are simply when an alien is taken into custody by state or federal authorities, whether or not a conviction resulted. Therefore, even if no conviction resulted, the alien must still disclose the fact that they were arrested.
Please note that each person's criminal history is different. The most proactive approach to dealing with criminal consequences on immigration matters would be to have the criminal defense attorney to consult with an immigration attorney BEFORE the matter is heard before a judge in state or federal court. This consultation is necessary as to assist the criminal defense attorney in planning his defense, keeping in mind the accused person's immigration status. If a pre-consultation cannot or does not occur, aliens who have criminal backgrounds of ANY degree are implored to fully disclose their backgrounds to their immigration attorneys so that proper analysis can be made regarding future immigration applications and petitions.
Kollman & Saucier, P.A., The Business Law Building, 1823 York Road, Timonium, MD 21093 Phone: 410-727-4300
Fax: 410-727-4391 © 2008 Kollman & Saucier, P.A. All rights reserved.
Website maintained by Armistead Technologies, Llc.tm
