27 Apr 2016 Immigrants with criminal convictions should not leave the US or apply for citizenship without making sure it’s “safe”
Dear Atty Gurfinkel:
I have been a green card holder for many years. Several years ago, I was convicted of a crime. I served the sentence and even had the conviction expunged (or “erased” from my record.) I would like to take a brief vacation to the Philippines to visit my family and friends. Do you think I will encounter any problems with US Immigration when I return?
Very truly yours,
T.W.
Dear T.W.:
Under US immigration laws, if a non-citizen, including green card holders, commits certain types of crimes, that person could be considered inadmissible (not entitled to enter the US) or removable (deportable). There have also been many changes to our laws that have reclassified certain crimes as “aggravated felonies,” (which are very serious crimes), and those changes were made retroactive (or will apply to past convictions).
Even if the crime was committed years ago, it could still come back to haunt the person. This is true even if the conviction was expunged, as there have been Court and Board of Immigration Appeal decisions stating that an expungement will not erase the fact that a person was “convicted” of the crime.
Therefore, if a non-citizen ever committed a crime that makes him “inadmissible” or “removable,” that person most definitely will encounter problems if he leaves the US and later tries to return. He could be denied admission to the US and sent immediately back, or he could be put in removal proceedings and detained (or held in custody in a prison) until his case is over, which could take months or years.
The reason is that if a green card holder with a criminal record seeks to re-enter the US, the Immigration Inspectors at the airport (Customs and Border Protection) have access to his entire record, including the person’s immigration history and criminal record. This is especially the case after 9\11, when law enforcement agencies throughout the country are sharing their databases.
The person’s entire criminal history may now be a part of DHS’s database. The record pops up on the Immigration Inspector’s computer screen, and the person finds himself in a lot of trouble, including being detained and placed in removable proceedings.
I have come across several cases involving immigrants with old convictions, who made the mistake of taking a brief vacation outside the US. When they tried to return to the US, they effectively “woke up” the Immigration Inspectors, who were now alerted to the fact that the person is inadmissible or removable. Had they not left the US, the situation may have never come to the attention of DHS. However, by taking a brief trip, they mistakenly brought themselves to the attention of DHS, and face a lifetime of disaster. The same is true in applying for citizenship: your criminal record will come to light, as you must be fingerprinted, and questions on the form as about past crimes.
While there may be hope for some of these people, through “waivers” (or forgiveness) and appeals to their removal, is it really worth taking the chance? I don’t think any trip outside the US is worth the risk of being placed in removal proceedings.
I know that some people with past convictions will try to argue, “but I was already able to visit the Philippines after my conviction, and was able to return. So that must mean that everything is OK, and I won’t encounter problems the next time I travel.” I would say that such a person may have just been lucky the last time he traveled. Just because you were lucky the last time, does not mean your “luck” will hold out forever.
I want to be clear that non-citizens with certain convictions are removable even if they never leave the US. However, leaving the US simply increases the risks of bringing your situation to the attention of the DHS and hastening your possible permanent removal.
So, don’t take chances. And if you should ever get that “knock on the door” from DHS because of an old conviction, I would strongly recommend you immediately seek the advice of a reputable attorney, who can analyze your situation, and determine if you could qualify for any form of relief from being removed, such as waivers or legal challenges to your conviction or removal.
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