A criminal record can cause significant levels of anxiety and uncertainty for anyone involved. However, if you're a non-US citizen, the anxiety and uncertainty levels are even higher.
Fortunately, there is a way to have a criminal infraction erased from your record in the eyes of the law through expungement. But is expungement an option for everyone?
In this article, we will go over whether criminal record expungement is a viable option for individuals who are not American citizens. We will address the issue as it specifically pertains to Pennsylvania.
What is a Criminal Record?
Like any other jurisdiction, Pennsylvania categorizes crimes by severity, with murder being the most serious (i.e., felony of the first degree) and misdemeanors being of lesser significance. Aside from felonies and misdemeanors, there are also crimes of even less severity called summary offenses.
Here are some examples of what these crimes look like in Pennsylvania (though note that these lists are by no means exhaustive):
Felonies in Pennsylvania are classified under three different categories: first-degree, second-degree, and third-degree. First-degree is the most serious and includes crimes such as murder or kidnapping. Second-degree felonies include assault, and third-degree felonies include bribery and gun crimes, among other charges.
In Pennsylvania, misdemeanors can also be separated into three different categories, depending on severity. The most serious first-degree misdemeanors include things like stalking and specific threats. Second-degree misdemeanors include crimes such as shoplifting, whereas third-degree misdemeanors include theft and loitering charges.
Summary offenses are less serious than both misdemeanors and felonies. They include things like disorderly conduct charges and underage drinking.
In total, there are just under one million offenses reported to Pennsylvania law enforcement in any given year. The most common offense in the state by a wide margin is theft of property.
What is Expungement?
All of the above crimes are subject to their own trial process and will carry different consequences for every unique circumstance. However, what happens if you're convicted of a crime, serve your time or pay your fees, and want to rehabilitate and reintegrate into society?
The law recognizes an individual's ability to rehabilitate and reintegrate. In fact, this is the entire thought process behind the concept of expungement.
In Pennsylvania, the process of expungement allows for the destroying of an individual's criminal record. This would mean that a criminal charge would no longer show up on an individual's record and would no longer hamper their ability to engage in any activity that requires a background check.
Who is Eligible for an Expungement
First thing's first: in order to be eligible for an expungement in Pennsylvania, certain conditions must be met. For example, a misdemeanor or felony may be expunged if an individual is 70 years of age or older and has been free from convictions for at least ten years. For summary offenses, these can be erased after five years if no other crime has been committed.
Other circumstances may lead to the expungement of a conviction. One particular case is juvenile record expungement, which allows any conviction (including misdemeanors and felonies) to be expunged when the offended turns 18 if certain conditions are met.
Other convictions, often related to substance use, such as Driving Under the Influence and marijuana possession, may be eligible for expungement if rehabilitation programs are met as outlined by the ARD program.
Although not an expungement in the true sense of the word, it may be possible for the record of some non-violent misdemeanors to be “sealed.” This means that they will remain on the record for some parties (such as the police) but will not show up on a standard background check (such as the checks performed for employers).
What Happens When Non-Citizens are Charged with a Crime?
Contrary to what some may believe, the law doesn't care whether you are an American citizen or a resident of Pennsylvania. This means that individuals can be charged under Pennsylvania law even if they do not live in the state and even if they are a citizen of a country other than the United States of America.
Unfortunately, individuals who are in the process of immigrating to the United States but have not yet gained full citizenship status or individuals who are living without legal status do not have as many rights as citizens. In some cases, if a non-US citizen is charged with a crime, they will risk deportation.
Tourists who are visiting Pennsylvania are also eligible to be prosecuted to the full extent of the law.
Expungement and Non-US Citizens
Expungement has different consequences for non-US citizens. If a non-US citizen has a conviction expunged, they may still not be eligible for immigration status. This is because a “conviction,” for immigration purposes, refers to any sentence imposed by the court.
In fact, in some cases, the expungement of a conviction may create more problems as it will make it more difficult for interested parties to option a record of convictions. More information can be found here.
How To Begin an Expungement Process
If you are looking to begin an expungement process, Pennsylvania sets out the following steps. It includes procuring the proper forms, paying the required fees, and following up with the applicable Clerk of Courts and other involved parties during what generally is a four to six month process from start to finish. At the end of a successful expungement process, a judge will sign the expungement order, and the order will be forwarded to applicable law enforcement, government, and court agencies for the petitioner's records to be expunged per Pennsylvania law.
Help With Expungement
You don't need to navigate the world of record expungement yourself—especially if you're dealing with the complicated nuances of being a non-US citizen. Joseph D. Lento is an experienced attorney who can help with record expungement in Pennsylvania. Get in touch today with the Lento Law Firm by calling 888 535 5336.