Immigration law reads a record its own way, and an expungement doesn't erase it.

September 17 is Constitution Day and Citizenship Day, and every year naturalization ceremonies around the country mark the end of a long process for new citizens, including people from Dearborn and the communities around it. For permanent residents who are still on the way there, a criminal case can complicate that process in ways Michigan law doesn't prepare you for. A dismissal under a youthful trainee program, a deferred sentence, or an old conviction that's been set aside can all look finished from the state's side and still count on a citizenship application. Immigration law reads a record by its own rules, and the time to learn them is before a plea, not after.

How does a criminal case affect a citizenship application?

Through the good moral character requirement. Under 8 U.S.C. 1427, an applicant must have five years of continuous residence as a permanent resident and must show good moral character throughout that period, which continues until naturalization. Spouses of U.S. citizens living in marital union can apply after three years. USCIS evaluates the applicant's conduct during that statutory period, and it can consider conduct from earlier as well.

Some offenses are automatic bars under 8 U.S.C. 1101(f). A conviction for an aggravated felony at any time is a permanent bar. During the statutory period, being confined for 180 days or more because of a conviction is a bar, and so are most controlled substance offenses, except a single offense of simple possession of 30 grams or less of marijuana. Two or more offenses with combined sentences of five years or more are a bar, and so is being a habitual drunkard. Outside those bars, USCIS weighs the whole record, which is where a single misdemeanor can still create problems.

What counts as a conviction for immigration purposes?

More than most people expect. Under 8 U.S.C. 1101(a)(48)(A), a conviction includes a formal judgment of guilt, and it also includes cases where adjudication was withheld if the person pleaded guilty or no contest, or admitted facts that warrant a finding of guilt, and the judge ordered some form of punishment, penalty, or restraint. Probation is a restraint. So a Michigan case that ended in dismissal after a guilty plea and a term of probation can still be a conviction in immigration law, even though the state treats it as no conviction at all.

USCIS guidance notes that a diversion program that doesn't require an admission or finding of guilt may not count, because the first part of the definition isn't met. That difference, whether a plea of guilty was entered, is often the deciding factor, and it's set at the moment the case is resolved.

Does an expungement or HYTA clear your record for immigration?

Generally, no. USCIS policy, based on decisions including Matter of Roldan and Matter of Marroquin, is that a record of conviction that has been expunged doesn't remove the underlying conviction for immigration purposes. The Sixth Circuit, which covers Michigan, held in Pickering v Gonzales that a conviction vacated for reasons of rehabilitation or to avoid immigration consequences still counts, while one vacated because of a genuine legal defect in the case doesn't.

Michigan's Holmes Youthful Trainee Act is a good example of the gap. Under state law, a young adult who completes HYTA ends up without a conviction on the record, which our guide to HYTA explains. But in Matter of V-X- in 2013, the Board of Immigration Appeals held that a Michigan HYTA disposition is a conviction for immigration purposes. The same is true in many cases of Michigan's set aside process, covered in our piece on expungement and the Clean Slate Act, which helps with employers and landlords but not with USCIS.

Do you have to report an expunged case on the N-400?

Yes. The instructions for Form N-400 tell applicants to report all offenses, including any that have been expunged or pardoned and any that happened before age 18, and applicants whose records were vacated, set aside, sealed, or expunged must submit the court orders. Leaving something off can create a separate problem, because false testimony to obtain an immigration benefit is itself one of the statutory bars to good moral character.

USCIS also can't approve an application while the applicant is still on probation, parole, or a suspended sentence. Someone who resolves a misdemeanor with a year of probation may need to wait until that probation ends before filing, even if the offense itself isn't a bar.

What should your defense lawyer tell you?

The immigration consequences of any plea. In Padilla v Kentucky in 2010, the U.S. Supreme Court held that defense counsel must inform a noncitizen client whether a plea carries a risk of deportation. When the consequences are clear, the lawyer must say so plainly, and when they're uncertain, the lawyer must at least warn that the charge may carry immigration consequences.

Michigan's court rules on taking a plea don't require the judge to give an immigration warning, so in practice the defense lawyer is the only person in the courtroom with that obligation. That makes it important to tell your lawyer about your immigration status at the very first meeting, even if it feels unrelated to a traffic stop or a misdemeanor charge.

What should you do if you're not a citizen and you've been charged?

Tell your defense lawyer your exact immigration status, and don't accept a plea, a diversion agreement, or a probation offer until someone has looked at how it fits the immigration definition of a conviction. Sometimes a similar outcome under state law can be structured in a way that reads very differently for immigration purposes, and working with an immigration attorney alongside the criminal case is often the right move.

Our criminal defense team represents clients in the 19th District Court in Dearborn, the 27th District Court in Wyandotte, and across Wayne County, and we raise immigration status from the start of every case. Citizenship Day celebrates people who finished the process, and for anyone still on the way, an expungement doesn't erase what immigration law already counted, so the plea is where that future gets protected.

Quick answers

Can you become a U.S. citizen with a misdemeanor?

Often, yes, depending on the offense, when it happened, and the rest of the record. Some offenses are automatic bars to good moral character, and USCIS weighs other convictions as part of the overall record. Applicants can't be approved while still on probation.

Does a DUI affect a citizenship application?

It can. A single OWI isn't an automatic bar, but USCIS considers it in evaluating good moral character, and multiple alcohol related offenses can draw closer scrutiny, since being a habitual drunkard is a statutory bar.

Is HYTA a conviction for immigration purposes?

Yes. In Matter of V-X- in 2013, the Board of Immigration Appeals held that a Michigan Holmes Youthful Trainee Act disposition counts as a conviction under federal immigration law, even though it isn't a conviction under Michigan law.

Related reading

• HYTA: The Holmes Youthful Trainee Act in Michigan
• Michigan Expungement and the Clean Slate Act
• Misdemeanor vs. Felony in Michigan
• Criminal Defense at D.C. Law