Will My Criminal Convictions Ever Go Away So My Immigration Status Is Safe?
In New York State, certain criminal misdemeanor convictions are sealed after sentencing. If someone is concerned and they want to know whether their conviction is going to be sealed or not, they’re welcome to come into our office in Westchester, Manhattan or Queens, and I would be happy to go over whether it’s a conviction that could be sealed. If it’s a conviction that could be sealed, it’s sealed and it’s not available for public review. In other words, no one can go to the court and find out if you’ve been convicted if the conviction has been sealed. However, it is not sealed to law enforcement or to federal authorities. If you wanted to get a gun license and you had a conviction sealed, that body that is giving the license would have the ability to see what convictions have been sealed.
Overall, it depends on the crime you’ve been convicted. However, the arrest will always be there, but an arrest is not an event where someone can discriminate against you in terms of a job interview. People could be arrested for civil disobedience, and they consider that to be a good thing. An arrest is not necessarily something that can be used against you, but the arrest will stay there no matter what, whether it’s sealed or not. If it’s a sealable offense, that won’t be on your record. However, it could be discovered by the law enforcement if they have a reason to pry into that sealed conviction.
If I Plead Guilty To An Offense, Can I Avoid Deportation From The United States?
Depending on the date of the conviction, if your attorney did not notify you of the consequences of pleading guilty to a crime, and that crime that you pled guilty to affects your immigration status and you were not notified, you could seek the advice of another attorney and file what’s called a Padilla Motion to avoid deportation. Padilla Motions are based on a United States Supreme Court case involving a gentleman named Padilla. He pled guilty to a crime, but his criminal defense attorney was not versed in Crimmigration, and didn’t tell him about the consequences of pleading guilty. He found himself facing deportation proceedings. He petitioned all the way up to the Supreme Court, and the Supreme Court stated that a defense attorney that does not advise his client of immigration consequences has performed ineffectively, and that conviction can be overturned.
If you have such a case where you’ve pled guilty, and your attorney advised you to plead guilty and now you’re facing deportation, depending on the date that you were convicted, then you have a very good case in avoiding deportation. Padilla v. Kentucky is the name of the Supreme Court case, decided in 2010. There were proceedings after that, and the issue was whether Padilla is retroactive—in other words, would it cover cases before it was decided in 2010? For a period of time, it actually covered cases before that, but then the Supreme Court clarified their holding, and stated it does not cover convictions and pleas prior to 2010.
If you were convicted after 2010 and your attorney did not inform you that the plea would have immigration consequences, then you could appeal that particular conviction. You could possibly have that conviction vacated, avoid deportation, and hopefully keep your green card. The issue with that though is that even though that may avoid deportation, what it does is it opens your criminal case back up. You would have to keep defending yourself, and your attorney would have to keep fighting for you. Then hopefully, you can plead guilty to something or maybe it’ll be dismissed. The outcome hopefully would not affect your immigration status if the appeal is won.
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