Immigration Impact of Criminal Charges Even Without a Conviction
Most people understand that a conviction in a criminal case will have a substantial impact on their immigration status, but very few realize that even just a criminal charge may have an impact on an immigrant as significant as if they were convicted. Below are some examples.
A Criminal Case which is not a Problem can Become a Problem
There are a number of criminal charges that even if a person is convicted of them, will not negatively impact their immigration status. However, if information regarding a criminal case is not accurately presented in an immigration application, then the person may become ineligible for the immigration benefit that they were seeking. Therefore, it is important to understand and present this information appropriately.
For example, if a person had a criminal case for a driving violation (i.e. driving without a license, reckless operation, driving to endanger, etc.) and they do not disclose it in their immigration application, this could be viewed as a “misrepresentation” and could result in a denial of the application. This could be the case even if the criminal charge did not result in a conviction or it was dismissed.
“Continued Without a Finding of Guilt” may be a Conviction for Immigration Purposes
There are a number of ways in which a criminal case may be resolved and it is important to understand how a resolution is viewed by the immigration authorities. For example, in Massachusetts, the law allows a criminal case to be “Continued Without a Finding of Guilt” (commonly called a CWOF) and it would seem that this would not be a conviction. However, a CWOF is a conviction for immigration purposes, under Section 101(a)(48)(A) of the Immigration and Nationality Act.
In addition, people often believe that if a criminal case is resolved with only the payment of a fine that this does not mean there was a conviction. However, this is not always the case, if it involves an admission to the facts.
In contracts, a criminal case that is resolved with a “Guilty Filed” disposition in Massachusetts would seem to be an obstacle for immigrants, but it actually does not qualify as a conviction under the law for immigration purposes.
A Criminal Charge or Investigation may have the Impact of a Conviction
An immigrant who has been charged with a criminal offense, or merely investigated in connection with one, may face difficulties with immigration officials. This is because Section 212(a)(2) of the Immigration and Nationality Act allows immigration authorities to deny a person’s visa or their admission to the U.S. if there is a “reason to believe” the person was involved with certain criminal activities, particularly drug related offenses, even without a conviction.
Additionally, the law in most jurisdictions including the First Circuit (northeast region of the US) allows some immigration officials to consider the allegations of an arrest, even if the person is not convicted, when making a discretionary decision, such as adjustment of status (applications for Legal Permanent Residence).
Use an attorney that practices both criminal and immigration law if you have or had a criminal charge
In summary, there are many ways that a criminal charge can be an obstacle to obtaining an immigration benefit, even if the charge did not result in a conviction. Therefore, it is critical that a person interested in applying for an immigration benefit disclose all of the information regarding their criminal history to their immigration / criminal attorney and to make sure that they use a lawyer that is competent in both criminal and immigration law. If you are in the Massachusetts area and you would like to request an appointment with one our criminal and immigration lawyers, please call us at: 617-303-2600 or fill our online appointment request form.
The FitzGerald Law Company Team