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Kevin O'Flaherty

Many individuals wonder if an expunged criminal record could still be a concern when dealing with immigration authorities. The answer is nuanced. This article directly tackles the question: can immigration look at your expunged record, and how might it impact your immigration process? We’ll explore the federal perspective on expunged records, their accessibility to immigration agencies, and provide insights on navigating the associated legal challenges. Agencies like USCIS and the Department of Homeland Security (DHS) can access and review these records during the immigration application process. An expunged record can even form the basis for the denial of immigration applications or for deportation

Key Takeaways

• Expungement may clear criminal records at the state level, but federal immigration authorities like USCIS and DHS can still access and consider these records for immigration purposes.

• Individuals must disclose all criminal history, including expunged convictions or dismissed charges, on immigration applications to avoid penalties or denial of benefits.

• Navigating immigration laws in relation to criminal records is complex, and consulting with an immigration lawyer specialized in criminal defense is recommended for proper legal guidance.

Understanding Expungement in the Context of Immigration

At its core, expungement is the process of erasing criminal convictions from a court or law enforcement agency’s records, essentially providing a fresh start. However, within the context of immigration, the situation is not as clear-cut. While expungement can clear a record for many domestic purposes, it may still be visible to federal authorities. What’s more, despite expungement, these criminal records can still impact immigration proceedings. This emphasizes the limited effectiveness of expungement in the immigration context, a point underscored by the stance of the U.S. USCIS stands for United States Citizenship and Immigration Services. It is responsible for overseeing immigration to the United States. USCIS, while considering expungement orders, does not necessarily exempt the arrest or conviction from being considered as part of an immigration application or petition.

The Legal Process of Expungement

The process of expungement is a legal one, and it varies from state to state. Essentially, it involves:

1. Applying at the court that handled the case after fulfilling sentence requirements and waiting periods.

2. Preparing necessary documents.

3. Possibly attending a hearing.

4. Obtaining a certified expungement order to submit to law enforcement agencies.

Keep in mind that expungement orders only cover the specific matters and courts outlined in the order, and don’t extend to removing court records from press, internet searches, or social media platforms.

However, not all erasures are created equal. Sealing records, for example, is a process that differs from expungements. Instead of destroying or dismissing the records altogether, sealing them makes them inaccessible to the general public. This key difference has implications for immigration attorneys seeking documents necessary for satisfying immigration requirements.

The Limitations of Expungement for Immigration Law

Even when a record is expunged, it doesn’t disappear from the view of immigration authorities. USCIS does not recognize expungements as legally operative, maintaining consideration of the original conviction. This can complicate the process for immigration attorneys to obtain documents necessary for satisfying immigration requirements.

Even a state misdemeanor, which might have involved minimal jail time, can be classified as an ‘aggravated felony’ for immigration purposes, affecting the immigration process.

The Reach of Immigration Authorities on Expunged Records

When it comes to expunged records, immigration authorities have a longer reach than one might expect. Agencies like USCIS and the Department of Homeland Security (DHS) can access and review these records during the immigration application process. An expunged record can even form the basis for the denial of immigration applications or for deportation.

Other federal agencies like the Transportation Security Administration (TSA), Federal Aviation Administration (FAA), and Federal Bureau of Investigation (FBI) can also view these records for various regulatory and security purposes. The Board of Immigration Appeals, for instance, considers expunged, dismissed, or removed convictions as relevant for immigration purposes, disregarding state court actions aimed at rehabilitating the record of an individual. Given that immigration law doesn’t recognize expungement for non-citizens in the same way state law might, understanding the immigration consequences of criminal convictions becomes pivotal.

The Role of Homeland Security in Accessing Criminal Histories

The Department of Homeland Security, which oversees immigration enforcement, is not limited by state expungement laws. It is able to access expunged records as part of its national security and public safety mandate, adding another layer of complexity to the issue. USCIS requires immigration applicants to disclose all convictions, irrespective of expungement, and may seek court assistance to obtain records if necessary.

Background checks conducted by USCIS are thorough, considering the individual’s entire criminal history from birth up to the current age. This rigorous vetting during the immigration process ensures that no stone is left unturned, including those that might have been hidden by expungement.

Disclosure of Expunged Convictions on Immigration Applications

In the world of immigration applications, transparency is key. Full disclosure of all arrests, including those that resulted in expunged records or charges dismissed, is required. Expungements do not allow an applicant for permanent residence or any immigration benefit to deny their arrest, charge, or conviction history. Providing accurate and truthful information during immigration processes is crucial.

Even for programs like Global Entry, applicants are advised to disclose expunged records; failure to do so can result in denial of the application or penalties for falsification of records. USCIS may review an applicant’s conduct outside of the statutory good moral character period, which could include expunged convictions from the past.

Consequences of Withholding Information

Despite the daunting prospect of disclosing a criminal past, not doing so could lead to even worse consequences. Lying or withholding information about expunged records can lead to severe consequences like the denial of an immigration application or even deportation. Furthermore, withholding expunged conviction information can impede an applicant’s ability to demonstrate good moral character, which is essential for naturalization.

Not only could failure to disclose expunged convictions result in a denied naturalization application, but it could also potentially initiate removal proceedings, with each case evaluated based on its specific circumstances. Non-disclosure of expunged convictions is a significant negative factor in assessing good moral character, making disclosure of such records necessary even for non-deportable offenses as they can influence moral character determinations for citizenship, permanent residence, and other discretionary immigration benefits.

Juvenile Records and Immigration

The shadow of a juvenile record can linger well into adulthood when it comes to immigration matters. Juvenile records are typically accessible to USCIS for five years after the offense, even if the individual has turned 18 during this period. However, USCIS may overlook minor juvenile offenses, acknowledging that young individuals can make poor choices due to their age and lack of maturity.

There is a petty offense exception for juvenile convictions, indicating that minor offenses committed as a juvenile should not negatively impact an immigration application. However, it’s always wise to consult with an experienced immigration attorney to navigate potential complications in the application process.

Navigating Complexities with an Immigration Lawyer

Navigating the complexities of immigration law and the implications of expunged records can be daunting. This is where the support of an immigration lawyer becomes invaluable. An immigration lawyer can provide assistance with immigration proceedings and help clarify how expunged records may impact these proceedings.

However, the choice to expunge a criminal record should not be taken lightly. Immigrants are advised not to expunge their criminal records without consulting an immigration lawyer due to the potential complication of their immigration status and ability to remain in the United States.


In summary, the complexities of immigration law and the implications of expunged criminal records are vast. From understanding the limitations of expungement in the context of immigration law to recognizing the broad reach of immigration authorities on expunged records, it’s clear that these issues require careful navigation. An immigration lawyer can provide invaluable support in this process. By being transparent about past convictions, including those expunged, individuals can avoid severe consequences and potentially secure their future in the United States.

Frequently Asked Questions

Can USCIS see expunged record?

Yes, USCIS can still have access to a sealed or expunged criminal record despite attempts to seal it. It's important to discuss your options with a criminal record clearing attorney if you have a criminal record.

Can U.S. customs see expunged records?

Yes, U.S. customs can review expunged records as part of the immigration process. It's important to be aware that expunged records may still be considered.

What kind of background check does immigration do?

Immigration conducts background checks focusing on criminal history and compliance with immigration law, rather than financial history, to ensure applicants pose no security threat and have adhered to U.S. laws.

Do I need to disclose my expunged convictions on my immigration application?

Yes, you need to disclose your expunged convictions on your immigration application. Expungements do not exempt you from disclosing your arrests, charges, or convictions.

Can criminal convictions affect my immigration status?

Yes, criminal convictions, especially serious or violent felonies, can affect your immigration status, leading to deportation or impacting eligibility for immigration benefits.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.

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