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Immigration Consequences of Arrest

January 4, 2016

Immigration Consequences of Arrest

Author: New York Immigration lawyer Alena Shautsova

An arrest occurs when a person is taken into a custody against his/her will for interrogation or search. What constitute an arrest and custody is actually depends on the facts and the occurrences that have been deemed to constitute an arrest have been examined by the judges for a long time.

Sometimes, after an arrest a person is issued a document by the arresting authorities, sometimes it does not happen. Such documents may be a police report, a desk appearance ticket… In other words, sometimes, an arrest results in criminal or administrative charges and sometimes it does not.

The question that I receive often is: should one disclose a fact of arrest that did not result in formal charges? For example, a husband and a wife had a domestic dispute, their neighbors called the police, the couple was brought to the precinct, the wife was let go, but the husband was not. The wife did not have to submit herself for the fingerprint procedure. Does she have to disclose this incident on her citizenship application?

Or, let’s take a different set of facts: young people, whose names are A, B and C, return to their apartment after a party. A decides to do something in public which is not allowed and an officer issues him a ticket. The rest are asked to present proof of their identity. Shall B disclose this fact on his green card application? B was not issued or ticket and was not charged with anything.

And finally, A, B and C are shopping. A security guard suspects that A, B and C committed shoplifting. All three are taken into custody and the police is called. A, B and C are issued desk appearance tickets. During the court hearing, charges against A are dismissed. Shall A disclose this incident during his permanent residency interview?

Let’s see… nowadays most immigration applications and petitions require full disclosure of any arrests and any and all charges, including those resulted in dismissal. Even administrative incidents must be disclosed during the citizenship process: such as stops by Immigration or Customs agents in the airports. An individual who does not disclose a fact of arrest may be charged with committing fraud or misrepresentation in connection with application for Immigration benefits: a charge that requires a hardship waiver or results in finding of lack of good moral character.

It means that almost in all cases an individual has to disclose the arrest, even if subsequently the charges were never brought against the individual. In our first example, the wife will have to disclose the fact that she was brought to the precinct as a suspect , even though the police later realized she was the victim. In the second example, I believe, there was no arrest, even though some might argue that even though B and C who were not issued tickets,  they were not free to leave once an officer asked them to present their IDs. In the third example, A absolutely has to disclose the incident.

Citizenship applicants with arrest history are severely scrutinized on the point of “Good Moral Character.” A dismissal can usually be construed to a misunderstanding between the parties.

In any case of arrest or administrative or criminal charges, an individual who is looking to obtain Immigration benefits such as visa, change of status, permanent residency, citizenship has to consult with an attorney. The Immigration law says that one who admits to committing the elements of the offense (even if the person is not convicted) is deemed to commit and be convicted of the offense under the Immigration law.

Finally, if the person was fingerprinted, and/or the formal charges were brought and later dismissed, this information is FOREVER in the person’s FBI history and will show during the USCIS security checks. So, as a reminder, every applicant has to answers all the questions truthfully, and fully…