Sealing a Criminal Record and Immigration Applications
A question we are asked often in our criminal defense and immigration law practice is whether or not a criminal record can be sealed. A “Criminal Record” is usually connected with a criminal charge that is filed in a court. Most states keep a list of all criminal cases that a person has within that state and will generally transfer the information to the U.S. Department of Justice and possibly to other states.
Impact of “Sealing a Criminal Record”
Sealing a Criminal Record may have several benefits for an individual, including that it may not have to be reported to prospective employers or to schools, it may not be accessible by media, and it may not be revealed through routine security checks that are run by volunteer or non-profit organizations. It is important to understand also, that you will not be able to ask the court for a copy of the record, in the event that you need them in the future.
Nevertheless, sealing a Criminal Record generally does not prevent the government from accessing the information. For example, the U.S. Department of Homeland Security or the U.S. Department of Justice likely will be able to access the information in the course of their law enforcement functions. Similarly, if an individual was applying for a position with the government, he or she may be required to reveal the information and provide related records even though the criminal record has been sealed.
Sealing a Criminal Record in Massachusetts
In Massachusetts there are several laws that determine what type of record may be sealed, for what purpose and when. Below is a list of some of the types of cases that may be sealed.
- Delinquency (juvenile) cases— where all sentence elements and any related court appearances were completed 3 years prior to the request for sealing the record.
- Misdemeanor cases—where all sentence elements and any related court appearances, were completed 5 years prior to the request for sealing the record (or, where the charge was considered a felony when committed, and is presently classified by the law as a misdemeanor).
- Felony cases—where all sentence elements and any related court appearances, were completed 10 years prior to the request for sealing the record. For eligible sex offenses, these have to be completed 15 years prior to the record sealing request.
- A Recorded offense which is no longer a crime—except where the elements of the offense continue to be a crime under a different designation.
- Any criminal case wherein the defendant has been found not guilty by the court or jury, or a no bill has been returned by the grand jury, or a finding of no probable cause has been made by the court.
- In a case with a CWOF (Continuance Without a Finding), or where a dismissal has been entered by the court, and it appears to the court that substantial justice would best be served if the record was sealed, the court can order the sealing of the record.
Sealing a Criminal Record & Immigration Applications
Virtually all immigration applications contain questions regarding a person’s prior criminal history and require the production of documents related to any criminal case. Sealing a criminal record under Massachusetts laws will not change a person’s obligation to disclose this information on an immigration application filed with USCIS or any other federal immigration agency. This means that you will have the obligation to provide both the information and likely certified copies of the record.
It is important to review the issues that will arise from “sealing” a “criminal record” with an attorney that is qualified in both criminal defense and immigration law in order to avoid potential problems in the future. If you would like to schedule an appointment with one of our experienced Boston criminal and immigration lawyers, please call our office at: 617-303-2600
The FitzGerald Law Company Team