Immigrants: Arrested and Confused
In my previous article, I discussed how clients are surprised that their criminal record, even years old, may prevent them from becoming a U.S. citizen. I discussed that, in U.S. immigration law, a conviction is more than just a finding of guilty and that having a criminal record can have a serious impact when applying for U.S. citizenship. This news may surprise foreign nationals who have lived and worked in the U.S. for many years. But when you are arrested in the U.S., or an agency issues you a summons, it can cause several different problems with applying for naturalization and can impact your ability to remain in the U.S. immediately.
Now I would like to break down some key terms and ideas to better help those in need. We will start at the beginning: What happens if you are stopped, detained, or arrested by a police officer in the U.S.? The arrest itself is not a criminal conviction – this is because the “standard of proof” that allows the police officer to arrest you is “low”. Be sure to disclose all arrests to your immigration attorney, regardless of whether you were convicted! The arrest informs your attorney a great deal about your case, and may lead to other important information.
After an arrest, you may be booked (processed at the police station) and even jailed or otherwise detained. Again, this portion is not a conviction but the details are important. Provide your attorney with all the information you can about the booking, and provide copies of your charging documents (warrant, arrest record, summons, release documents, etc).
Immediately after an arrest you should contact an attorney specializing in criminal defense and U.S. immigration law. As I discussed in my previous article, what happens after the arrest will have an enormous impact on your ability to remain in the U.S., and applying for citizenship with a criminal record can be very difficult. Having an attorney represent your interests is critical.
If possible, your attorney will attempt to have the charges dropped and your case dismissed. Your attorney may be able to negotiate lesser charges or other circumstances that allows for a lesser “conviction”. For example, the impact on your immigration status is different depending on whether the conviction is as a misdemeanor or felony. Generally, one “simple” misdemeanor conviction without a sentence may not derail your immigration case, but more than a single misdemeanor conviction may be a problem. At the other end of this spectrum, certain misdemeanor convictions and felony convictions that carry a sentence of one year or more may prevent you from ever obtaining an immigration benefit. This is true even if it is a suspended sentence — as I discussed in the last article, a conviction is more than just a straight finding of “guilt” in the immigration world. Felony convictions of one year or more can result in USCIS revoking your green card, detaining you, and placing you in deportation proceedings.
What do I do if I have a criminal record and want to apply for U.S. Citizenship?
- At the courthouse that handled your case, the Clerk can provide you with copies of all the documents filed in your case, and a disposition order. Get certified copies of your file; certified records usually cost an additional fee.
- If those documents do not include the original arrest records, contact the records clerk at the arresting station. They will have a similar file and will provide a copy for a fee.
- Schedule a meeting with your attorney, who specializes in criminal law and immigration law, to fully review your case and develop a strategy that will protect your interests and your family.