The short answer, at the risk of being overly simplistic, is that there is no effect. Expungements, in general, are often very useful to individuals who have pled or been found guilty of criminal offenses; however, it does not vitiate the effect of such a conviction on an individual’s immigration status. In other words, even though an expungement might serve to remove any record of a person’s arrest/conviction in New Jersey, it does not “erase it” for purposes of immigration, whether that means in the context of deportability, inadmissibility, prosecutorial discretion motions, eligibility for relief in immigration court, or applying for naturalization. The conviction still exists in the immigration arena, even though it practically disappears from most other contexts of an individual’s life.
The Expungement Statute in New Jersey
The rules for expungement are codified in N.J.S.A. 2C;52-1 through 2C:52-32. For most indictable crimes, there is usually a waiting period of ten years. For disorderly persons offenses as well as petty disorderly persons, the applicant must wait five years before applying. For those whishing to expunge a municipal ordinance, there is a two-year waiting period. If you have been arrested for a crime that has been dismissed, you may apply for expungement immediately. (However, there is a six-month waiting period if the charge is dismissed pursuant to successful completion of Pre-Trial Intervention or Conditional Discharge).
Many people understand that expungements seal the record. The files, fingerprints and records are removed and isolated from public record, and the affected individual can ordinarily declare that the expunged arrest/conviction never even occurred. However, there are exceptions, and immigration is one of them. In most contexts, an individual is usually obligated to disclose information about criminal activity, even if it has been expunged. Take a look the N-400 Citizenship Application. Questions 22 through 28 ask the following:
22. Have you ever committed, assisted in committing, or attempted to commit, a crime or offense for which you were not arrested?
23. Have you ever been arrested, cited, or detained by any law enforcement officer (including any and all immigration officials or the U.S. Armed Forces) for any reason?
24. Have you ever been charged with committing, attempting to commit, or assisting in committing a crime or offense?
25. Have you ever been convicted of a crime or offense?
26. Have you ever been placed in an alternative sentencing or a rehabilitative program (e.g., diversion, deferred prosecution, withheld adjudication, deferred adjudication)?
27. Have you ever received a suspended sentence, been placed on probation, or been paroled?
28. Have you ever been in jail or prison?
The application makes clear: “if any of Item Numbers 22-28 apply to you, you must answer “Yes” even if your records have been sealed, expunged, or otherwise cleared. You must disclose this information even if anyone, including a judge, law enforcement officer, or attorney, told you that it no longer constitutes a record or told you that you do not have to disclose the information.”
So, in most cases, an individual dealing with immigration should be prepared not only to list any and all criminal arrests and convictions, but more importantly, be aware that any expunged conviction may still count as a conviction for immigration purposes, even if records of the crime have been erased or sealed. For example, an individual who has been convicted of a fourth degree charge of New Jersey shoplifting but who has had the conviction expunged may nevertheless be found deportable-even though that same person could apply for a job and legally answer “no” if asked whether he/she has been convicted of a crime. The point is that non-citizens who have criminal arrests or convictions should consult with an immigration attorney first before filing any type of application.
Expunging a conviction should not be confused with vacating a conviction, which normally occurs in a post-conviction relief context, or making a motion to withdraw a guilty plea. If a conviction is overturned or vacated due to serious procedural or substantive defects-normally constitutional in nature-the conviction may arguably be held not to count for immigration purposes. On the other hand, if the conviction was merely overturned for rehabilitative purposes or solely to remedy a person’s immigration problem, the conviction may still count. Of course, this is a very fact sensitive and legally sophisticated type of inquiry that needs to be reviewed in depth by an attorney.
Any person who is considering getting an expungement done should procure certified dispositions, copies of discovery, as well as order transcripts before proceeding with an expungement so that evidence of the record is available for both the immigration attorney as well as immigration to review.
We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest developments in immigration law, please subscribe to our blog feed by clicking on the “Subscribe To This Blog’s Feed” button on the right. It is important to understand that the above is only general information and not legal advice. It does not create an attorney-client relationship nor should it be relied upon as legal advice. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the “Case Evaluation” box to the right of the screen to get in touch with one of our attorneys.