Sealing and Expunging Criminal History Records for Immigrants

As a South Florida Immigration Lawyer, immigrants sometimes ask me whether sealing or expunging records relating to a criminal offense will help their immigration case. Generally, the answer is “No.”

In Florida, qualified criminal defendants may petition the court to seal or expunge certain offenses. The process is generally done in order to limit public access to the information contained in the records. In both cases, the information is removed from the public criminal justice agency records. Once a record is sealed, the public will not have access to the information in the records without a court order; however, government officials will still have access. Expunction provides a higher level of protection than sealing because the records and information are physically destroyed. It is important to note, however, that law enforcement agencies (including USCIS, ICE, and CBP) essentially ignore expunctions and can and will use the information to enforce the U.S. immigration laws and determine eligibility for benefits and relief from removal (deportation). This also includes the U.S. Immigration Courts and the Board of Immigration Appeals.

Under Florida law, an individual can legally deny or fail to acknowledge arrests covered by a sealed or expunged record. However, there are some major exceptions to this rule, including but not limited to when the individual is a Defendant in a criminal case OR applying for:

• Federal U.S. Immigration benefits (ie. a visa, a green card, change of status, Citizenship)
• Employment with a criminal justice agency;
• Employment or entering into a contract with, or license by the Department of Children and Family Services, the Department of Juvenile Justice, the Department of Education, any district school board, any university laboratory school, any charter school, any private or parochial school, or any local governmental entity that licenses child care facilities;
• Employment or use by such contractor or licensee in a sensitive position having direct contact with children, the developmentally disabled, the aged, or the elderly;
• Employment or access to a seaport;
• Sealing or Expungement of criminal records; and/or
• Admission to The Florida Bar.

It is also important to note that sealing or expunging a record may not erase that record from Federal or private company databases where it already existed. Thus, in some cases, the information may still be available to the general public. In Florida, the Florida Department of Law Enforcement may have already filed the information in the records with the National Criminal History Database. Also, all Florida judges have online access to sealed records.

What this means is that sealing or expunging a criminal record in Florida may only be useful for individuals who have very specific (and sometimes private) reasons for wanting to deny, not have to acknowledge, or “hide from” something that they did or were charged with that got them in trouble with the law. For example, an individual may decide to expunge a qualifying arrest record so that he or she can legally deny the arrest in applications for employment (other than in the above contexts). Perhaps the record related to an instance of very poor judgment (usually when the person was younger and less mature) that resulted in their one and only criminal record. Many people believe in the “Right to be Forgotten” and feel that they should be able to evolve and move away from these painful and sometimes publically damaging experiences. And in this day and age of information technology, with so much information available for public viewing and inspection, it is reasonable and natural to want to the past to stay in the past.

As you can see, having records sealed or expunged in Florida can be very useful for certain limited purposes. However, it will do nothing to help an individual’s immigration case (application, petition or request for benefits or relief) because the U.S. governmental agencies will have access to the records and will ignore the expungement.

And there is one more point that is worth making here. If an immigrant has other reasons (not related to immigration) to seal or expunge a criminal record in Florida, he or she would be well advised to first obtain certified copies of the court file that will be expunged, particularly if he or she ever intends to apply for any kind of federal immigration benefit in the future (such as US citizenship). The reason is that U.S. Immigration laws generally put the “burden” or responsibility of proving eligibility for the benefit sought upon the petition or applicant. USCIS often cites the case of Matter of Brantigan (BIA, Interim Decision 1553) to stand for this proposition in visa proceedings. In context, this means that if an individual is completing a form for an immigration benefit and answers “YES” to the question of whether they have ever been arrested (which they must do even if the record was expunged), USCIS will almost certainly ask for (certified) copies of the final disposition from the court file as a condition to making a favorable decision on the application. If the file has already been expunged (destroyed), that means he or she cannot provide the records to show (for example) that the offense was not the type of offense that would have any immigration consequences. Unless the individual has requested and retained certified copies of the records before the file was expunged, he or she will not be able to produce the records and the application may be denied for failure to prove eligibility.

Asking the Immigration Officer who is handling the application to go into their database and pull your records for you may be a quick way to getting your application denied. Again, since you have the burden of proving that you are entitled to the immigration benefits that you are seeking, you will be expected to produce all of the relevant records that relate to your eligibility. If you have these records, it will be easier to demonstrate that the offense or acts in question do not disqualify you for the immigration benefits for which you have applied.

Bottom Line: Immigrants would be well advised to obtain certified copies of criminal records before applying to have those records sealed or expunged.

If you have any questions regarding this article, contact South Florida Immigration Lawyer Sean D. Hummel at (954) 385-3111.