Can we appeal the lack of moral character immigration ruling? 3 Answers as of September 16, 2010

My husband was denied citizenship because of a “lack of moral character.” She was caught when she was much younger shoplifting from a department store. She got the case expunged and completed all of the community service hours. We thought because it was expunged that it would not show up on the application. She was denied at the naturalization hearing. Can we appeal this ruling or what can we do?

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Pacifica Legal Services
Pacifica Legal Services | Floyd Fernandez
Your husband made the mistake of not including the expunged conviction. Any conviction for an offense involving moral turpitude, if a felony, will disqualify someone from naturalization, and can be cause for removal from the USA. Expungement of such an offense will not remove its status as a conviction for immigration purposes. And failure to disclose that expunged conviction can constitute document fraud, which is also a violation of the Immigration and Nationality Act, and subject him to removal.

There is a possible cure of the offense under two circumstances: 1) if when he was convicted, if he pled guilty, was he advised of his possible immigration consequences, have his criminal attorney file a motion to vacate his conviction, then he has his immigration attorney file a motion to reopen or new application for naturalization; 2) file a motion to reopen, and state that the failure to file was due to a misunderstanding of whether an expunged conviction was included (though that will be hard to prove due to the fact that the N-400 application states that a record of all convictions must be disclosed, including those that are expunged. In number 2), you can still if you show that there was restitution and actions to rehabilitate have been performed, but that will be in the discretion of the CIS.

In any event you will need the assistance of counsel, and it is serious. If you wish to contact me, you may find me by e-mail or the phone number given below. I'll be glad to set up an in-person or telephone conference with you and your husband.
Answer Applies to: California
Replied: 9/16/2010
Law Offices of Svetlana Boukhny
Law Offices of Svetlana Boukhny | Svetlana Boukhny
Typically, just one conviction of that type would not make her ineligible unless the probation period is not yet over. Can you please provide more details as to when this incident happened and what the probationary period was and when that would be completed.
Answer Applies to: California
Replied: 9/15/2010
JCS Immigration & Visa Law Office
JCS Immigration & Visa Law Office | Jack C. Sung
Generally a shoplifting conviction alone should not be a problem for the citizenship application. However, if you failed to disclose the conviction then it could be seen as a moral character issue. I am not sure if that was what happened.

If it's simply a shoplifting and you disclosed the conviction on the N-400, then your husband should be qualified for the petty offense exception, unless he caused much damages to the store where he shoplifted.

In essence, I need more information to provide you with the answer you need. If the conviction happened more than 5 years ago and it's his only conviction, and he disclosed it on the N-400, then I recommend filing the appeal. If not, you should sit down with an attorney to discuss your options.
Answer Applies to: California
Replied: 9/15/2010
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