For US Immigration purposes convictions never go away. For example, you may have entered the United States multiple times over the years and now at the airport you are asked more questions and before you know it the officer is denying your entry to America and cancelling your visa and/or ESTA.
If ever you have been convicted of a crime anywhere in the world, you must obtain a police certificate, arrest report and the court disposition for the conviction. A U.S. immigration official will not adjudicate your case without these documents. There are a series of security and background questions in the DS-160, and we see many issues come into play based on these questions. For example, if you are unsure of the question and you answer yes to be on the safe side, that may trigger a denial. If you answer no and the officer deems you are lying, then you are within the fraud, misrepresentation, and that can have a permanent bar.
Admissions:
Even without any type of conviction, if there is an admission (written or verbal) to having committed the essential elements of a controlled substance offense under state or federal law – or of a foreign country’s laws. If the activity occurred while the individual was in that country – that foreign national could be deemed inadmissible. This is why it is so important to speak to Caro if you will be questioned by any immigration official either inside or outside the United States.
For example, if an admission of a drug offense is made, for example, during an interview for an immigration benefit, or even during a discussion with a civil surgeon or panel physician, this could result in an immigration official making a finding that the foreign national is inadmissible.
The legalization of marijuana at state level is not permitted under Federal Law; Immigration is federal law. Remember the controversy when Harry stated in his book he had taken hallucinogenic mushrooms and the many questions surrounding his immigration currently.
Expungements:
For Immigration purposes an expunged past record does not matter. Immigration will insist on all past convictions to be unexpunged. You cannot state on any immigration form you have not been arrested and/or convicted, believing that your record is expunged and thus you are protected; you are not.
How do you determine a conviction:
For immigration purposes, conviction is defined in the statute INA. The term conviction means, with respect to an alien: a formal judgment of guilt of the alien entered by a court, or if adjudication of guilt has been withheld, where:
• A judge or jury has found that the alien is guilty, or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt
• The judgment has ordered some form of punishment, penalty, or restraint of the alien’s liberty to be imposed
What are the elements of a conviction:
• A formal judgment of guilt entered by a court, or
• If adjudication has been deferred or withheld
• A judge or jury finds guilt, or the alien enters a plea of guilty or nolo contendere, or admits sufficient facts to find guilt, and the judge orders punishment, penalty, or restraint on liberty
What is deferred adjudication:
Most diversion and deferred adjudication agreements will qualify as convictions. Most require a plea or admission of the facts.
Exceptions to this are programs designed as alternatives to conviction, for example, a pre-trial intervention or pre-plea diversion programs with the prosecutor. So, if there’s no plea or finding of guilt, and no punishment by the court, then this is not a conviction.
It is not a conviction if there is juvenile delinquency (under 18 years of age).
It is not a conviction if there is no final conviction because the case is still on direct appeal. It is not a conviction for infractions or violations that are not crimes. We often get asked by clients, “I have a speeding ticket. I didn’t have property damage or injury to anyone. Is that a conviction?” Simple infractions are not convictions.
