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Expunctions: What is it? Who Qualifies? and How Can It Help an Immigration Case?

Welcome to Immigration Wednesdays. Attorney Jeff Peek briefly explains expunctions, who’s eligible, the process, and the benefits. 

What is it?

It’s a process in the state of Texas whereby one charged with a criminal case, whether it be DWI, misdemeanor, or felony, had that case either dismissed or found not guilty, can then erase it in all records. Records include physical state, paper files, computer, digital, and online so that it doesn’t appear anywhere. 

Process & Eligibility  

First of all, this is in the state of Texas. If arrested in another state, check with lawyers in that state because each state has a very different way of handling expunctions. In Texas, you must have either had the case dismissed or be found, not guilty at trial.

Dismissal 

There are different types of dismissals. In lawyer language, it’s called a straight dismissal, meaning there was no reduction of charges. There was no lesser punishment involved, and the charges are dropped. For example, if you were charged with DWI and they agreed to dismiss the DWI, but then you had to plead to reckless driving or obstruction of a passageway, you would not be able to expunge the DWI because you ended up taking a plea deal and punishment on a lesser case.

Sometimes, you find cases where somebody’s charged with a misdemeanor or felony, and they drop it down to a different level, and it’s dismissed at that lower level. For instance, you have a felony dropped down to a misdemeanor. Still, then you’ve got a deferred prosecution on the misdemeanor, or they dropped it down to a class C ticket, and you got a deferred disposition on the class you ticket that also ended up in dismissal. In some of those cases, you could still be eligible to expunge it. 

Found Not Guilty at Trial

If you go to trial, whether in front of a jury or a judge and you’re found not guilty, you’re also eligible to having expunction and even better. You don’t have to pay the filing fees for that.

What if you have completed probation, are you eligible for expungement? No. What if you finished a jail sentence and it’s been more than ten years, are you eligible for expungement? No. It’s very limited to those two classes. And again, if you have a diversification, there’s another process. 

Benefits 

Secondly, why would you want to do it? There’s a lot of reasons. Here are some examples:

  1. Employers have access to criminal records. They may see that you were arrested, and they may not like the fact that you have a record. Even if you got off on the case. 
  2.  You don’t want your partner or their family to see your record
  3. You want to apply for law enforcement
  4. You want to go to advance your career 

Benefits for Immigrants 

There are also two crucial reasons from an immigration side. For example, there are programs now, in central Texas and other many other counties, where you can enter what is called a Deferred Prosecution Agreement, or sometimes it’s called a Pretrial Diversion Agreement or Drug Courts. These various programs allow you to dismiss the case once you have completed all of their requirements. Sometimes they dismiss it on the front end, sometimes in the back end, but it’s a valid dismissal that your eligible do expunge. For immigration law, USCIS has begun to question whether that dismissal is an actual dismissal. And they’ve said, “No, that’s not a true dismissal, you admitted to doing the crime?” When you sign that Deferred Prosecution, you confessed statements. When you participated in that Pretrial Diversion Program or that Drug Court, you went in front of a judge and admitted that you did those activities. You took responsibility, immigration saying that’s not a dismissal. USCIS is going to count that as a conviction. Even if your paperwork shows “dismissal,” USCIS will argue that those programs require a confession or knowledge of responsibility. Therefore, you are guilty of those charges.

So, it’s vital to dismiss charges that they are entirely removed from your record to avoid running into this issue with the USCIS. 

If you are an immigrant or somebody with permanent residency, and you are in that situation, definitely talk to a lawyer who knows both criminal offense and immigration law.

If you have any questions about expunctions and the process, please call Peek & Toland Law Firm at 512-474-4445, we’d be happy to help. 

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