expungement immigration consequences

16 Oct expungement immigration consequences

A099 621 646 – SAL, 2010 WL 2224586, at 1 (B.I.A. In most contexts, an individual is usually obligated to disclose information about criminal activity, even if it has been expunged. 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. Ct. 1983); People v. Gary O’D., 461 N.Y.S.2d 65 (N.Y. App. Moreover, full recognition of such rehabilitation in all contexts is required to give full meaning to these state statutes as well as to abide by the constitutional mandates set forth by the Court in Roper, Graham, and Miller.

3.For an explanation of the development of a separate system of juvenile law, see infra Part II. Agreeing with the Board of Immigration Appeals, the Sixth Circuit found the above-named characteristics – namely that the criminal action is not vacated until the youthful trainee completes her probation, and that a judge can revoke the youthful trainee status at any time – sufficiently distinct from the FJDA.

[63, 1.

The conventional expungement or sealing process requires a burdensome and expensive court procedure that only a small percentage of those who are eligible will ever complete. 1993)). The Court in Roper acknowledged that juveniles “have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment” and “a greater possibility exists that a minor’s character deficiencies will be reformed.”[21]. 67.INA § 212(a)(2)(D), 8 U.S.C § 1182(a)(2)(D) (2012). Social Change was created to provide an outlet for scholarship and analysis in legal areas of particular interest to socially concerned attorneys. Even after the enactment of IIRIRA and the statutory definition of conviction that came with that Act, the BIA maintained that “[w]e have consistently held that juvenile delinquency proceedings are not criminal proceedings, that acts of juvenile delinquency are not crimes, and that findings of juvenile delinquency are not convictions for immigration purposes.”[57] Although arguments could be made that juvenile delinquency adjudications along with their attendant penalties imposed on those found to be delinquent could satisfy (i) and (ii) of INA § 101(a)(48)(A), the BIA determined that juvenile delinquency remains a separate and distinct type of proceeding that results in the assignment of a particular “status” rather than a finding of guilt or innocence.

But the FJDA by its own terms encourages prosecution of juveniles under state law, even when violation of federal law is at issue. ∞Rebecca Phipps is an attorney at New York County Defender Services, where she practices criminal defense.
The Immigration and Nationality Act (INA) does not distinguish between children and adults in almost all of the provisions it sets forth, and the same triggers initiate grounds for removability and inadmissibility[1] regardless of an individual’s age. 6.See Miller v. Alabama, 132 S. Ct. 2455, 2464–65 (2012) (holding that sentences mandating life in prison without the possibility of parole for juvenile offenders is unconstitutional). The rules for expungement are codified in N.J.S.A. [25] Depending on the age of the juvenile and the nature of the crime committed, states may also choose to bypass juvenile court entirely and charge the juvenile as an adult. Div. Once adjudicated by the state court, as either a juvenile or an adult, we are bound by that determination.”[52], This approach persists despite the existence of a federal standard for determining whether a conviction would count as a juvenile or an adult offense, found in the Federal Juvenile Delinquency Act (FJDA). 1974) (citing Morera v. INS, 462 F.2d 1030, 1032 (1st Cir. May 10, 2010) (finding that the IJ “was not prohibited from considering a youthful offender adjudication in evaluating the request for discretionary relief,” and that therefore the IJ “properly considered the nature of the adjudication in question and properly weighed the positive and negative factors”) (citations omitted); In re Medina, No. The tension between both sides of compelling case law and legislative history creates ambiguity, at the very least. In this case, the BIA extended this rule for marijuana offenders with expunged convictions under the Federal Youth Corrections Act set forth in Mestre Morera v. U.S. Immigration & Naturalization Serv., 462 F.2d 1030 (1st Cir. Ann. 26.Some factors that have been considered by state courts in determining whether to transfer a juvenile’s case to adult court include: age, gravity of the offense, criminal sophistication, amenability, and likelihood that rehabilitation will be completed within the juvenile court’s jurisdiction. 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. 97.In fact, the language of N.Y. Crim. Given the seriousness of potential immigration consequences that a noncitizen may face, the rule of lenity requires that such ambiguity be resolved in favor of the noncitizen. 151.See In re Devison, 22 I. 36.In re Ozkok, 19 I.

Nonetheless, several circuits have explicitly endorsed this view,[50] recognizing that the immigration court is entitled “to take the record as it found it, and neither it nor we are required to import separate juvenile proceedings which were not used by the [state] court.”[51] The circuit courts express deference to the decisions of the state courts in supporting this approach, stating that “[n]either we nor the BIA have jurisdiction to determine how a state court should adjudicate its defendants. However, most juvenile offender statutes contain provisions regarding the confidentiality of juvenile proceedings.

The taint of a conviction can have devastating consequences in areas of employment, housing, education, and government benefits, to name a few; equally devastating, if not more so, are the potential immigration consequences for an offender. Understanding the general treatment of expungements generally in the immigration context will then allow greater understanding of the argument in the final section, that expungements made pursuant to juvenile justice statutes should be honored in the immigration context, A. . 15.See, e.g., In re Winship, 397 U.S. 358, 368 (1970) (requiring the burden of proof in juvenile delinquency proceedings to be “beyond a reasonable doubt” rather than lower standards of proof); Breed v. Jones, 421 U.S. 519, 531 (1975) (extending the protection of the double jeopardy clause of the Fifth Amendment to prevent a youth convicted in a juvenile court from being prosecuted in adult court for the same offense). For disorderly persons offenses as well as petty disorderly persons, the applicant must wait five years before applying. We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. [84] All unaccompanied children are supposed to be transferred to ORR custody within 72 hours, while all accompanied children are supposed to be released to their family. & N. Dec. 135, 137 (B.I.A. 162.N.Y. 115.In re Roldan-Santoyo, 22 I. . For circuits endorsing this rule, see Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 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. capacity for change and limited moral culpability.”[156] Such a blanket imposition of penalties, the Court determined, would be a constitutional violation.[157]. In determining whether it was appropriate for an immigration judge to weigh an individual’s juvenile offense against her in her application for adjustment of status, the Second Circuit in Wallace v. Gonzales said: “Because the purpose of adjustment of status is to provide worthy aliens with special relief, we see no reason to prevent an IJ or the BIA from considering an applicant’s anti-social conduct – whether leading to a conviction, a Youthful Offender Adjudication, or no legal judgment whatsoever – as an adverse factor in evaluating an application for discretionary relief.”[81] The Wallace court relied on evidence of a BIA practice of allowing juvenile adjudications to be factored into discretionary relief in this way. 1974).

The general rule in American immigration law is that adjudications of juvenile delinquency are not convictions for purposes of immigration law,[31] so they do not trigger conviction-based grounds of removability or inadmissibility. The juvenile offender statutes of many states have failed this test [100] meaning that children in those states who are adjudicated as juvenile offenders will suffer immigration consequences to the same degree as any adult convicted under comparable criminal statutes. © 2020 Lee & Garasia, LLC. [150] The BIA has also acknowledged that juvenile adjudications can and must be viewed differently than analogous criminal convictions of adults. Questions 22 through 28 ask the following: 22. To remedy this, the provisions of juvenile justice laws that afford protections and opportunities for rehabilitation to juveniles must be given full effect in the immigration context. [email protected], Site designed and developed by Social Ink [+], III. & N. Dec. at 1372 (citing People v. Mervin, 462 N.Y.S.2d 544 (N.Y. Sup. The procedures are to be protective, not punitive. [83], When a child is taken into ICE custody, ICE is supposed to determine whether he or she is “accompanied” or “unaccompanied.” “Unaccompanied alien child” is defined by the Homeland Security Act as a child without lawful immigration status, who is under the age of 18, and who is without a parent or guardian in the U.S. willing or able to provide custody for the child.

However, juveniles are prosecuted by state courts rather than federal even when federal laws are at issue, unless one of three factors is present: the state cannot or will not accept jurisdiction over the matter, the state does not have adequate services or programs to address the needs of juveniles, or the juvenile is charged with a crime of violence or drug trafficking crime in which there is substantial federal interest. L. § 1.7 (2d ed.) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987); INS v. Errico, 385 U.S. 214, 225 (1966); Barber v. Gonzalez, 347 U.S. 637, 642–43 (1954); and Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948)). 2006). The law is extremely fact and circumstance sensitive. [117] This made “the determination of whether an alien is convicted for immigration purposes be fixed at the time of the original determination of guilt, coupled with the imposition of some punishment.”[118, B. He solved my all family immigration issues and because of his effort we were able to get done our immigration work done successful. 43.Kelly M. Angell, The Regressive Movement: When Juvenile Offenders Are Treated as Adults Nobody Wins, 14 S. Cal. [79], Provisions of the INA that set forth a discretionary form of relief could be characterized as “an act of administrative grace,”[80] as opposed to other forms of relief that are mandatory. h�bbd```b``V �� �q�d�"Y���y �e6�=�n�[�"��� ����"ysA��vɴD���%�$��K0{?�4������ �&���*`s��"�����*��RA����� ��(��w"�� �G���C����$� � �� endstream endobj startxref 0 %%EOF 110 0 obj <>stream

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