See my comment above as to why I think this question is more complicated than some people have treated it. Here the problem is that the individual clicked the "no" box. He didn't simply omit to answer a box.
Somewhere in this thread you'll see that I got into a fight with a guy who had an Illinois record set aside who strongly argued with me that he had the right to deny the conviction to Homeland Security. People who are the recipient of these set asides are conditioned by many state systems that they do not have a conviction. In reality in 2012, they have still have a reminent of the conviction. The better way to think about it is that they have a "sheltered conviction/adjudication" rather than no conviction.
I'm not sure I saw that thread, but usually if a conviction is "set aside" it means that there was some procedural or legal defect in the undelying proceedings and the conviction is vacated to allow for new proceedings possibly including a new trial. That is very different from expungement or sealing where the undelying conviction is not disturbed. Whether an expunged conviction needs to be disclosed depends on who's asking and what they are asking. Illinois doesn't set aside convictions unless they were obtained in violation of the law or for innocence.
I'm not sure I saw that thread, but usually if a conviction is "set aside" it means that there was some procedural or legal defect in the undelying proceedings and the conviction is vacated to allow for new proceedings possibly including a new trial. That is very different from expungement or sealing where the undelying conviction is not disturbed. Whether an expunged conviction needs to be disclosed depends on who's asking and what they are asking. Illinois doesn't set aside convictions unless they were obtained in violation of the law or for innocence.
Not everywhere. Convictions can be set aside if they have been taken under advisement and the offender has gotten in trouble during the probationary period. That is how a plea under Michigan's Holmes Youthful Trainee Act works. Nebraska also "sets aside" convictions based on rehabilitation:
An expunged conviction (using my state's definition of the term) is vacated. Our Attorney General used this distinction to opine that an individual with an expunged conviction was "not convicted" within the meaning of our CPL law. Based on this, the Attorney General opined that the individual was not "convicted" of a disqualified conviction.
The feds are going to look beyond the exact mechanism involved or label involved to see whether the ruling was based on a determination of innocence, procedural irregularities in the original proceeding, or simply rehabilitation. If the determination was based on rehabilitation, they are not going to honor it (unless it is governor's or president's pardon) regardless of the exact legal mechanism that a given state uses.
This is an area of the law where every state is different and the same word is defined differently once you cross a state line. The bottom line, however, is that the feds are a separate sovereign and are not required to respect state law on the subject.
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Quote:
Originally Posted by mileena
It seems here no one understands some basic facts. This is usually an intelligent board. I'm disappointed in the quality of postings. Time for a quick education:
Expungement: Only arrests can be expunged, not convictions. With an expungement, the arrest is cleared from your record, and no one subsequently knows about this, even the government. So you are good to go; and also answer "no" if anyone asks you if you ever have been arrested. This includes CBP. It's as if the arrest never occurred, even if both parties know it did occur. The arrest was expunged, or vacated, or removed from existence. The government has the magical power to officially change the past, and this is what they do with an expungement.
Pardon: This applies to convictions following arrest. After the pardon, your record is still there, but your crime has been pardoned or officially forgiven, so you are good to go. Usually only an executive like a governor or President can pardon, though sometimes Congress can too. In some states a pardon is easy to get for a minor criminal record (Pennsylvania); while in other states it's almost impossible (Maine). If pardoned, there no longer can be any negative consequences arising from your crime. If asked if you have ever been arrested, say yes, but say your conviction has also been pardoned. CBP is powerless to do anything about that then.
Citation: When you are cited, you are arrested, though the arrest is non-custodial as long as you sign the form promising to appear, if cited in person. If you don't sign, they can take you into custody and put you in jail. Citations can be for traffic offenses or all the way up to felonies. I know because I was cited by mail for felony aggregated aggravated negotiating worthless instruments.
That is not accurate.
In SOME states, convictions can be expunged. In some, the expungement is accompanied by something termed a judicial pardon. In some, the records may be sealed and only viewed with permission of the court, while in others the may be destroyed.
For CBP purposes (and in particular immigration purposes both in the US and certain other countries) they want to know about convictions - even if they are pardoned or expunged. Other countries don't seem to care.
Tread carefully. Many people don't realize that for *some* things an arrest or conviction is truly "one strike and you're out".
Ombudsman replied, after 5 months, and denied my appeal. They still did not list the specific reason but only "confirmed" the reasons I was given on my denial letter, which were none, just a vague "not meeting the requirements of the Global Entry program". Kafka would be impressed.
I cannot conclude otherwise from my experience than if an officer asks if you have ever used an illegal drug, the answer you must give is no.
Which, of course, if a lie would be a pretty idiotic thing to do.
Regards
Why? If you're saying "pretty immoral thing to do" okay.
But if you used drugs years ago, but there's no real evidence of that other than some friends who witnessed it, there's nearly zero likelihood that CPB can establish that you are lying.
It's a bit different than a Senate confirmation for some cabinet position where anybody might come out and volunteer such information.
Which, of course, if a lie would be a pretty idiotic thing to do.
It'd be a pretty smart thing to do if it meant regaining the freedom of Precheck, instead of merely donating $100 to the government for an intimate session with a customs goon. The latter would seem the idiotic thing to do, based on my experience and how I feel like an idiot for not just lying.
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How would they treat a global entry application for a permanent resident with no charges/convictions, but a single arrest & caution from the uk 12 years ago?
I know the concept of a caution does not exist in the US- in the uk it is basically a formal warning with no further action but that remains on record, but it does require an admission of guilt.
It is not classed as a conviction, and no charge or court is involved.
The offence involved is classed as a misdemeanor in the US not a felony, and it is not considered a crime involving moral turpitude if that makes any difference (it did during the immigrant visa process, where everything was declared and documented in my file but it wasn't an issue and no additional processing or waivers required)
Just unsure whether i should even bother applying given some of the examples on here.
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Last edited by leaveamessage; Feb 9, 13 at 8:42 am..
I would think you would be ok. The application specifically asks for you to list "convictions" and not "arrests". They might bring it up at the interview but once again, an arrest is not a conviction. I think as long as you are open about it, you'll be fine.
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Quote:
Originally Posted by runderwo
Ombudsman replied, after 5 months, and denied my appeal. They still did not list the specific reason but only "confirmed" the reasons I was given on my denial letter, which were none, just a vague "not meeting the requirements of the Global Entry program". Kafka would be impressed.
I cannot conclude otherwise from my experience than if an officer asks if you have ever used an illegal drug, the answer you must give is no.
Yes, I also received the same vague reasons on the denial letter for my "appeal".
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I have another friend (different from the one I mentioned earlier in this thread) who wants to apply for GE. In 2009 he plead guilty in Washington state to negligent driving in the first degree, a misdemeanor. There was alcohol involved and this was a plea bargain due to it being a first offense with no other record. This surely qualifies as a criminal conviction that needs to be disclosed.
The question is... will this be an automatic decline? It seems they're forgiving about some criminal offenses.. there are examples in this thread. Anyone want to venture a guess?
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I'd like to second what another poster wrote and caution readers that the post below is inaccurate. I think mileena's heart is in the right place but how this stuff works - and the terms used - vary greatly from state to state. It is impossible to make a blanket statement "this is how expungements work" or "this is the difference between a citation and an arrest." I can't emphasize enough the 50 different ways these situations are referred to and treated.
People run into trouble because while the 50 states treat expungements (for example) 50 different ways, federal investigators usually treat them one way. They have their matrix and if box X is checked then consequence Y happens. My impression is that GE and NEXUS is such a high volume operation that if your case ticks box X then you're out of luck because it is largely an automated process.
In other situations - applying for a security clearance, for example - investigators have good knowledge of the state they are dealing with and applicants have a greater opportunity to explain past events and mitigate any negative information.
If a citizen planned to apply for GE or NEXUS and has an expungement or deferred judgment in their past, it might be worthwhile to hire an attorney who deals with GE to perhaps ease the process.
Climbing up on my soapbox, this is all the result of living in a digitized world where nothing is forgotten. "Back in the day" a citizen would receive an expungement or deferred judgment - then and now only with a a judge's blessing - and be able to move forward in life with a new start. That citizen could truthfully answer "no" on a job application when asked if he had been committed of a crime. Thanks to the proliferation of court and law enforcement databases, that arrest from 1990 never goes away. And so many agencies - from ICE down to your state bar association - have carved out exceptions to being able to truthfully state "no, I was never convicted of a crime" that an expungement isn't worth nearly what it used to be.
Back off the soapbox.
Quote:
Originally Posted by mileena
It seems here no one understands some basic facts. This is usually an intelligent board. I'm disappointed in the quality of postings. Time for a quick education:
Expungement: Only arrests can be expunged, not convictions. With an expungement, the arrest is cleared from your record, and no one subsequently knows about this, even the government. So you are good to go; and also answer "no" if anyone asks you if you ever have been arrested. This includes CBP. It's as if the arrest never occurred, even if both parties know it did occur. The arrest was expunged, or vacated, or removed from existence. The government has the magical power to officially change the past, and this is what they do with an expungement.
Pardon: This applies to convictions following arrest. After the pardon, your record is still there, but your crime has been pardoned or officially forgiven, so you are good to go. Usually only an executive like a governor or President can pardon, though sometimes Congress can too. In some states a pardon is easy to get for a minor criminal record (Pennsylvania); while in other states it's almost impossible (Maine). If pardoned, there no longer can be any negative consequences arising from your crime. If asked if you have ever been arrested, say yes, but say your conviction has also been pardoned. CBP is powerless to do anything about that then.
Citation: When you are cited, you are arrested, though the arrest is non-custodial as long as you sign the form promising to appear, if cited in person. If you don't sign, they can take you into custody and put you in jail. Citations can be for traffic offenses or all the way up to felonies. I know because I was cited by mail for felony aggregated aggravated negotiating worthless instruments.
I have another friend (different from the one I mentioned earlier in this thread) who wants to apply for GE. In 2009 he plead guilty in Washington state to negligent driving in the first degree, a misdemeanor. There was alcohol involved and this was a plea bargain due to it being a first offense with no other record. This surely qualifies as a criminal conviction that needs to be disclosed.
The question is... will this be an automatic decline? It seems they're forgiving about some criminal offenses.. there are examples in this thread. Anyone want to venture a guess?
I thought the stated standard was:
1) Any felony
2) A misdemeanor in the past 10 years.
It is also clear that customs violations also likely result in rejection, as does a failure to disclose any crime.
Based on this, a misdemeanor 3 years ago means rejection is likely.
