July 20, 2012 | Criminal Convictions, Legal Permanent Residents (LPR), Naturalization
A. I’m presuming that you are a Lawful Permanent Resident (green card holder). There is a potential problem with your filing a citizenship application.
Criminal convictions, even if they occurred many years ago, can have various immigration consequences for green card holders. Immigration law has several categories of crimes that can make a green holder ineligible for citizenship, or even deportable: there are “aggravated felonies”, “crimes involving moral turpitude”, “controlled substance offenses”, “firearms offenses”, among others. The meaning of these categories in immigration law is different to their meaning in criminal law. That is why it is important for someone with a criminal record to obtain a certificate of disposition and have an immigration attorney review it before filing any immigration applications.
Under certain circumstances, the U.S. president or a state governor can pardon a convicted criminal – that is, absolve the individual of the punishment associated with their conviction. Such a pardon only protects you from deportation if your offense falls into two categories: “aggravated felonies” and “crimes involving moral turpitude.” If, for example, your grand larceny conviction involved the use or theft of firearms, you might be considered to have a committed a “firearms offense” and a pardon would not protect you from deportation on that basis.
Even if a pardon saves you from deportation, it may or may not maintain your eligibility for naturalization- this would depend on the nature of the conviction, and whether the pardon occurred within the continuous residence period for naturalization (5 years for most applicants). Again, I strongly recommend having an immigration attorney review your conviction records to ascertain the immigration consequences of your conviction, and whether a pardon may help. Please note that although Governor Paterson did pardon some immigrants with serious criminal records, this program expired and has not been continued under the leadership of Governor Cuomo.
A different approach to dealing with an existing conviction is by vacating it. A conviction that is vacated “on the merits” – that is, based on a violation of the defendant’s rights or some other defect in the criminal proceedings, ceases to be a conviction for immigration purposes. Immigration will look closely at the reasons why the court vacated the conviction. Convictions that are vacated solely to mitigate the immigration consequences of the conviction will continue to be treated as convictions by immigration.
In 2010, the Supreme Court ruled that a criminal defense attorney’s failure to advise a non-citizen about the immigration consequences of decisions made during a criminal proceeding is a constitutional violation. As a result, it may be possible to vacate a conviction when the criminal defense attorney did not advise a non-citizen that a guilty plea would make him deportable. The law relating to vacating judgments is evolving rapidly, so if your criminal defense attorney gave you poor advice (or none at all) about how immigration will treat your conviction, then I suggest you contact a criminal appeals attorney who can investigate potential ways for vacating your convictions. If you are successful in vacating your conviction, then you should retain an immigration attorney to proceed with any immigration applications.