The impact of criminal records on an immigration case

A crime committed in the United States or Turkey, even if it appears minor, can affect visa, green card, citizenship, and asylum applications; it can also lead to the deportation of green card holders. This page explains the concept of "conviction" in immigration law, the impact of the main types of crimes, the federal rule concerning marijuana, and how to collect your records. If you have faced an arrest or charge, consult an immigration lawyer before the criminal case ends.

• It is a formal finding of guilt by a court.
• Even if the finding of guilt is deferred (deferred adjudication), it counts as a conviction if both of these conditions apply:
  • a judge or jury found you guilty, you admitted guilt (guilty), or you did not contest the charge (nolo contendere), or you admitted facts sufficient to support a finding of guilt;
  • the judge imposed a penalty, punishment, or restriction on liberty.
• Pretrial diversion programs that do not require an admission of guilt may not count as convictions.
• Juvenile court decisions generally do not count as convictions. A conviction for someone tried as an adult while under 18 does count.
• Expunged records: expunging a record does not eliminate the underlying conviction. Expungements, dismissals, or set-asides under state rehabilitation laws are ineffective for immigration purposes.
• Vacated convictions: a conviction does not count if it was vacated because of a constitutional or procedural error. It does count if it was vacated only to avoid immigration consequences.
• Foreign convictions: a conviction counts if the conduct is also a crime under U.S. standards. A foreign pardon does not eliminate the conviction.

• An alien in any of the following situations is inadmissible to the United States:
  • being convicted of, or admitting to committing, a crime involving moral turpitude;
  • violating, or admitting to violating, a law relating to controlled substances (drugs) in the United States or another country;
  • being convicted of two or more crimes for which the total prison sentences were 5 years or more;
  • there is reason to believe the person is a drug trafficker.
• Two exceptions for a crime involving moral turpitude (only if there is a single offense):
  • the crime was committed before age 18, and the crime and any release from prison occurred more than 5 years before the application;
  • the maximum penalty for the crime does not exceed 1 year, and the sentence actually imposed did not exceed 6 months.
• A waiver may be available in some situations; see 2.9.
• For crimes that can make green card holders deportable, such as aggravated felonies, domestic violence, and certain weapons offenses, see 3.12 Loss of a green card.

• Permanent bars: a murder conviction or a conviction for an aggravated felony after November 29, 1990. Certain crimes, such as theft or crimes of violence, are aggravated felonies if the court-imposed prison sentence was 1 year or more, even if the sentence was completely suspended.
• Situations that bar approval during the application period (examples):
  • serving a total of 180 days or more in prison because of convictions;
  • a controlled-substance violation (except a single offense involving possession of 30 grams or less of marijuana for personal use);
  • habitual excessive alcohol use.
• Driving under the influence (DUI): two or more DUI convictions during the application period create a presumption that you lack good moral character. This presumption can be overcome only with strong and credible contrary evidence.
• Probation: a citizenship application will not be approved while parole, probation, or a suspended sentence is ongoing.
• For citizenship requirements, see 4.1 Requirements (N-400).

• A conviction for a "particularly serious crime" bars the granting of asylum. A serious, nonpolitical crime committed outside the United States is also a bar.
• In removal proceedings, documents concerning a criminal record are submitted to the court with a criminal history chart that includes arrest and conviction records.
• For details, see 12.4 Asylum application and 12.3.

1. List everything. Under the N-400 form, you must report all crimes and arrests you committed in the United States or anywhere in the world. This includes:
   • records that have been sealed, expunged, or otherwise cleared;
   • domestic violence and driving under the influence of alcohol or drugs;
   • crimes committed before age 18;
   • even if a judge, police officer, or lawyer told you that it is no longer on your record and does not need to be reported.
2. Request your FBI record. The FBI's "Identity History Summary" is requested through edo.cjis.gov. Help: +1 304 625 5590, identity@fbi.gov.
3. Collect court documents. For every incident involving a charge, obtain the arrest report, charging document, court disposition, and sentencing order. You may attach photocopies to the application; bring the originals or court-certified copies to the interview. You are responsible for obtaining the document even if the record has been expunged or sealed.
4. If no charge was filed, obtain the arrest report and an official letter from the relevant police department or court showing that no charge was filed. If no record can be found, submit an original or certified letter showing that it could not be found.
5. Document completion of the sentence: records showing that imprisonment, probation, or a diversion program has ended.
6. Traffic incidents: if they were not alcohol- or drug-related, did not result in an arrest, and no one was seriously injured, you do not need to submit documentation for the N-400.
7. Turkish criminal record: obtain it through the "Criminal Record Inquiry" service on e-Devlet at Adli Sicil Kaydı Sorgulama. Documents required for an immigrant visa: see 3.9 Immigrant visa interview (Ankara).

• Criminal and immigration cases are separate processes. A plea accepted in a criminal case may count as a conviction for immigration purposes.
• According to USCIS, a conviction vacated because the criminal court failed to advise the defendant about the immigration consequences of a plea does not count as a conviction for immigration purposes. This shows that immigration consequences should also be discussed in the criminal case.
• Tell your criminal defense lawyer that you are not a U.S. citizen and explain your immigration status. Also obtain advice from an immigration lawyer. See 12.6 Finding a lawyer.

• Failing to disclose an expunged or sealed record on the form.
• Assuming that a deferred judgment is not a conviction because "I only received a fine."
• Ignoring the federal rule because marijuana is legal in the state.
• Signing a plea in a criminal case without asking about the immigration consequences.
• Applying for citizenship before probation ends.
• Failing to disclose an old conviction in Turkey because "it stayed there."

• My record was expunged; do I need to disclose it? Yes. The N-400 form requires sealed and expunged records to be disclosed as well. Expungement does not eliminate the underlying conviction for immigration purposes.
• Will a single DUI prevent me from becoming a citizen? According to USCIS, two or more DUI convictions during the application period create a negative presumption regarding good moral character. A single DUI is also evaluated together with the other circumstances; consult a lawyer.
• Marijuana is legal in my state; will it be a problem? Under federal law, marijuana is a controlled substance. It may be a bar to good moral character in a citizenship application.
• Will a conviction I received in Turkey affect my U.S. application? A foreign conviction counts if the conduct is also a crime under U.S. standards. A foreign pardon does not eliminate the conviction.
• Does a crime I committed as a child count? Juvenile court decisions generally do not count as convictions. However, the N-400 form requires crimes committed before age 18 to be reported as well.
• How do I obtain my FBI record? Apply through edo.cjis.gov; for help, call +1 304 625 5590.

• Form N-400 (PDF) · Instructions (PDF)
• FBI Identity History Summary application (eDO)
• e-Devlet – Criminal record
• USCIS Policy Manual – Evaluation criteria and definition of conviction
• USCIS Policy Manual – Conditional bars (DUI, marijuana)
• 8 U.S.C. 1182 – grounds of inadmissibility (govinfo)
• 8 U.S.C. 1227 – grounds of deportability (govinfo)