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How can I determine whether a prior criminal conviction carries immigration consequences?

By October 13, 2022Immigration
A man in handcuffs

The best resource to determine the effect of a past criminal conviction carries immigration consequences is to consult with an attorney with experience in both immigration and criminal matters. The reason is that such an attorney can perform the complex analysis required to determine whether a criminal violation carries immigration consequences. We have discussed the different types of criminal convictions that create immigration consequences here.

However, before a qualified attorney can perform an effective evaluation, certain information will have to be provided to the attorney. In order to perform an effective review and evaluation, the noncitizen should seek to acquire certain documentation to provide the attorney.

Essentially, you will need to provide certain court documents contained in your criminal case file located in the court that had jurisdiction over your case. What we are looking for are documents that may be identified as a police citation, or paperwork that is a bit more complex like a complaint, information or indictment. As well, you may need to seek from the courthouse a document which is considered the judge’s order or judgement of conviction in the case. Since the formal name for these documents varies from jurisdiction to jurisdiction, you may want to ask court personnel for documents needed to commence the criminal case in the court and the final judgement signed and entered into by the presiding judge to complete or adjudicate the case.

Of course, if you were previously represented in the criminal proceeding, a good source other than the courthouse, is to inquire with your previous attorney who either holds copies of these documents or could also help you in acquiring these documents.

This paperwork should give the immigration attorney the understanding of what you were accused of, the disposition or resolution of the case and then if the case can cause any sort of immigration consequence.

Also understand, that in the United States, it is not yet common for courthouses to store these documents in an online repository, so if you did not have a previous attorney, a call or trip to the courthouse may be required. The only courthouse that maintains documents online are federal district courts. In federal cases, the attorney assisting you in the evaluation should be able to access these documents online, but again these are only for federal cases, not cases in state or local courthouses.

The judge’s court order will help the attorney then determine what law you were convicted under. The attorney will then proceed to look up the law that you were convicted under to begin evaluating whether the definition of the law contains elements or descriptions that match the definition of federal laws that violate an immigration law. If the state law matches the federal law, then you are likely considered to have violated a criminal law that violates an immigration law. At this point, the attorney will then look to determine what the consequences of the immigration violation carry and also determine whether there may be an appropriate waiver under immigration law to forgive the violation. We discuss criminal waivers for noncitizens seeking a green card here. We discuss waivers for temporary visa applicants here.

Finally, there are instances where the state violation does not perfectly match a federal law. However, the analysis does not end here. At this point, the attorney has to then determine if the state and federal laws do not match at all or if there are portions of the state law that match with a federal law. this is where the document that commences the criminal case may be relevant because in some of these situations, the attorney may need to see the description of the actions alleged in the document to understand under what section of a criminal law you violated to see if that specific section matches with a federal law that violates immigration law.

Although this evaluation is not simple, it is important in determining your eligibility for an immigration benefit or if you maybe subject to deportation.

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