Having a criminal conviction on your record can be life changing.  It can impact your employment, immigration status, right to vote, right to own a gun, or your ability to see your children.  In certain cases, an individual can remove a criminal conviction from their record to alleviate some of these concerns.

However, individuals should take caution in attempting to remove criminal convictions on their own.  Removing convictions is not a “one size fits all” process.  For example, it is very possible to remove a conviction from your criminal record and not remove it from your immigration record.

The results can be catastrophic.  Individuals can be misled into thinking they have removed a criminal conviction from their record for immigration purposes and go on to file for relief such as adjustment of status through a United States citizen spouse.  Their mistaken belief that their prior criminal conviction was removed will only be discovered when they are placed in removal proceedings and deported from the United States.

Therefore, it is important for all individuals to seek qualified legal representation prior to attempting to remove their criminal convictions from their record.  The analysis below will list common examples of different ways to remove convictions and will explain their potential impact on different aspects of an individual’s life.  However, the analysis below should simply serve as a guideline.  Every person’s case is different, and anyone is reading this article should consult an attorney prior to beginning the process of attempting to remove a criminal conviction.


Seal or Expunge in Florida

Sealing or expunging a criminal record is one of the most common ways for

an individual to remove convictions or a charge from their record.  “Expunging” refers to the legal process of destroying records.  “Sealing” refers to the legal process of ordering the clerk of court to seal records, which prevents the general public from viewing the records.  After ten (10) years of having a record sealed in Florida, you may be able to expunge the sealed records.

The right to seal or expunge is not absolute.  There are certain crimes under the Florida Statutes 943.0585 and 943.059  that can disqualify you from relief.  If you were not charged with one of the prohibited offenses and If your charges were nolle processed, no auctioned, dismissed, or if you were found not guilty, then under Florida law you may be eligible to expunge your record.

If you received a withhold of adjudication, then you might be eligible to seal your records.  If you have ever been adjudicated of a crime, you are not eligible to seal or expunge your record.  In addition, you can only seal or expunge one charge, or set of charges arising out of the same facts and circumstances, in your lifetime.

The benefits of sealing or expunging your record are that you prevent the general public from viewing your record.  This can include background checks for future employment.  Sealing or expunging your record, however, DOES NOT prevent government agencies such as police or immigration agencies from viewing your prior record.

In addition, sealing or expunging your record DOES NOT remove a conviction from your record for the purposes of applying for immigration relief.  In fact, in some cases, sealing or expunging your record can hurt your immigration case.  If you are applying for a green card or citizenship in the State of Florida, you will be required to provide certified copies of the convictions.  If you previously had your case sealed or expunged, you may lose the ability to obtain those records since they could be destroyed.

Therefore, sealing or expunging your criminal record is NOT a good solution if you are trying to remove a conviction for immigration.


Pardon

While sealing and expunging your criminal record might not help you for immigration purposes; a full and unconditional pardon can save you from deportation if you are a legal permanent resident.  In contrast, if you do not have legal status in this country, a full and unconditional pardon will not guarantee relief from deportation.  This is because undocumented aliens are inadmissible and can be deported on inadmissibility grounds regardless if they have a clean criminal record.

If you live in Florida and you are interested in applying for a pardon to obtain relief for immigration, you will need to apply for clemency.  Clemency is the constitutionally authorized process that provides the means through which convicted felons may be considered for relief from punishment and seek restoration of their civil rights.

There are several forms of clemency that an individual can apply for:

  • Full Pardon
  • Pardon Without Firearm Authority
  • Pardon for Misdemeanor
  • Commutation of Sentence
  • Remission of Fines and Forfeitures
  • Specific Authority to Own, Possess, or Use Firearms
  • Restoration of Civil Rights in Florida
  • Restoration of Alien Status under Florida Law

However, not all forms of clemency result in an improvement in an

individual’s immigration status.  Under INA 237 , a full and unconditional pardon is the only form of clemency for a person to remove a conviction for immigration status.

If you are interested in applying for a pardon, you must apply to the Office of the Executive Clemency in Tallahassee, FL.  However, while a full and unconditional pardon can remove a conviction for immigration, the success rate is extremely low.  From the years of 2006-2014, no Florida governor has ever granted more than 40 applications in a given year.


Motion to Vacate Conviction

Under Florida Rule of Criminal Procedure 3.850, a person may, within two years of their conviction, file a motion to vacate a plea that was not voluntarily made.  Under Padilla v. Kentucky, a plea is not voluntarily made if the Defendant is not advised of the mandatory deportation consequences of a plea by his attorney.  Padilla v. Kentucky, 559 U.S. 356 (2010).

A motion to vacate a criminal conviction is often times the best way to remove a conviction for immigration purposes.  To remove the conviction for immigration purposes. However, the plea must be vacated based on a “substantive or procedural defect” in the underlying criminal proceedings and not for reasons “solely related to immigration relief”.  Matter of Pickering, 23 I & N Dec. 621 (BIA 2003).  In addition, many individuals will be barred by the two-year time limitation for filing a 3.850 motion.

Most of the time, you only get one shot to file motions to vacate convictions as subsequent motions could be deemed successive.  Florida Rule of Criminal Procedure 3.850(h).  Therefore, it is important you get it right the first time and give yourself the best chance to remove the conviction from your record by hiring a qualified attorney.  As long as the case is handled correctly, a motion to vacate a conviction under Rule 3.850 can be the best way to remove a conviction from your record because the conviction will be removed for both criminal and immigration purposes.

Additional Resources

Florida Rule of Criminal Procedure 3.850 –Visit the Florida Bar, the official website for Florida’s statewide attorneys for more information on the Florida Rules of Criminal Procedure concerning motions to vacate on a plea that was not voluntarily made.

Applying for a Pardon –  Office of Executive Clemency under the Florida Commission on Offender Review to apply for a pardon in the State of Florida for a criminal conviction for the purposes of immigration status.

Fla. Stat. § 943.0585 – Visit Online Sunshine the official website of the Florida Legislature for the full statutory language on sealing a criminal record in Florida.

Fla. Stat. § 943.059    –Visit Online Sunshine for the full statutory language on expunging a criminal record in a Florida court.


Find an Immigration Attorney in Miami-Dade County, FL

If you or someone you know in Miami-Dade County is attempting to seal or expunge a criminal record in Florida, you should contact Hubbs Law immediately.

Having a record sealed or expunged should not be done without an experienced attorney. Improper filing could result in having the seal or expunction denied and later the record affect your immigration status.

E.J. Hubbs represents immigration clients in Miami and throughout Miami-Dade County, including Hialeah, Miami Gardens, Kendall, Miami Beach, North and South Miami, Homestead, and anywhere else in the area.

At Hubbs Law, your first consultation is always free. Our experienced attorney will discuss all aspects of your case with you and inform you of any immigration relief that might be applicable to your friend or family member in his or her particular case. Call (305) 615-5945 today to schedule your initial consultation.