Effect of Expungement and Vacated Convictions in the Immigration Context

A criminal conviction, in general, carries obvious negative consequences. However, in the immigration context, a criminal conviction can result in even further consequences. For instance, a criminal conviction can result in removability, inadmissibility, or ineligibility for relief.  Because a criminal conviction carries such heavy consequences in the immigration context, questions regarding expungement and vacated convictions often arise. This is an important question: Does an expunged or vacated conviction make a difference in the immigration context?

In order to answer that question, we must first establish what expungement and vacatur mean, as these are two different things.

First, when a criminal conviction is “expunged,” it is deleted from the person’s record from any court, police record, or criminal justice agency. In effect, the conviction is then “sealed” and at least within the context of the criminal justice system, it is as though the person never committed the crime at all. When a conviction is expunged, the individual is even legally permitted to state that the conviction never happened, which means they don’t have to disclose it on job applications, loan applications, housing applications, etc.

“Vacatur,” on the other hand, is the order of a court vacating or setting aside a rule, order, or judgment. In this context, vacatur basically means the conviction is removed, so the effect is very similar to expungement. In the realm of immigration, the difference between expungement and vacatur comes down to intent.  When a conviction is expunged, it is done in order to rehabilitate offenders. When a court “vacates” a conviction, it is done because the conviction is substantively defective. Examples of vacatur include situations where there was a due process violation or a right to counsel violation at the trial stage, resulting in a defective judgment. Therefore, the difference between vacatur and expungement comes down to the reasoning behind the removal of the conviction. In other words, it is the reasoning not the effect that is different.

Because expungement and vacatur may seem appealing to relive the consequences of a criminal conviction, it is important to understand what effect they actually have in immigration proceedings. While, in general, expungement allows an offender to state the conviction never happened, this relief and protection does not extend to immigration proceedings. For immigration purposes, a criminal conviction will always exist in your record, regardless of if it is expunged or sealed. Therefore, the record will be visible to the Department of Homeland Security (DHS) and its sub-agencies (Immigration and Customs Enforcement, United States Citizenship and Immigration Services, and Customs and Border Patrol), meaning any criminal conviction must always be disclosed.

Vacatur, on the other hand, is slightly different. The Attorney General, the Board of Immigration Appeals, and (with one exception) the circuit courts of appeals have adopted the following rule, set forth in Matter of Pickering, 23 I&N Dec. 621, 624 (BIA 2003):

[I]f a court with jurisdiction vacates a conviction based on a defect in the underlying criminal proceedings, the respondent no longer has a “conviction” within the meaning of section 101(a) (48)(A). If, however, a court vacates [or expunges] a conviction for reasons unrelated to the merits of the underlying criminal proceedings, the respondent remains “convicted” for immigration purposes.

In summary, for immigration purposes, expungement has no effect. Vacatur will provide relief in some instances, but only if the conviction was substantively defective. This means that in most instances, criminal convictions will have to be disclosed during immigration proceedings.

As expungement will not offer any protection in the immigration context, there are some things to consider before having a criminal record expunged. USCIS and the federal immigration courts, in almost all instances, will require an applicant for an immigration benefit to disclose whether the applicant has ever been arrested or detained by a law enforcement officer, charged with a criminal offense, and/or convicted. If convicted, the applicant will have to disclose what the sentence was and the sentence actually served.

Due to this required disclosure, it may actually cause more of a headache if the criminal conviction was expunged than if it were not. Because USCIS and the federal immigration courts require disclosure, they also require certified records of any events disclosed. If not available, an applicant can provide a statement from the relevant agency confirming the record is unavailable. Once a record has been expunged, there is no way for the record keeping agency to issue a certified copy of that record, meaning an applicant with an expunged criminal record will not be able to provide the required certified copy. The only alternative is to provide a statement from the record keeping agency that the record is unavailable. However, it can be troublesome to obtain such a statement if the record is expunged, as some record keeping agencies have a policy against verifying the prior existence of expunged records. Even if the record keeping agency does not have such a policy, frequently these agencies will refuse to provide a statement for a variety of other reasons. If this happens, it can make for a difficult situation. USCIS or other immigration authorities will have notice of a criminal conviction on the applicant’s record, but the applicant will have no way to provide verification of what happened. While alternative documentation can be offered, it will depend on the reasonableness of the immigration authority, since the requirements are clear.

In short, because a criminal conviction can have such a serious impact in immigration proceedings and because expungement can complicate the situation further, it is important to talk to an experienced immigration lawyer before moving forward.