Some Ordinance Violations May Present Obstacles to Seeking U.S. Citizenship
Last year I was contacted by a legal resident whom I’ll call Saul. Saul was getting ready to apply for U.S. citizenship and wanted to expunge an ordinance violation he’d received for leaving his dog in the car to run a quick errand one warm summer evening.
Someone observed the dog in the car and called Chicago Police. On the ticket he was issued, Saul was cited for leaving his dog in a vehicle “without proper care in willful neglect.” The police did not arrest Saul.
Yet records reflect that Saul was not charged with a city municipal code violation.[1] Rather, police charged him with a Class C misdemeanor under the Illinois Humane Care for Animals Act.
When criminal charges were subsequently filed against Saul, the original violation was upgraded to animal cruelty, a Class A misdemeanor. Saul did not realize he’d been charged with animal cruelty until after the case was dismissed.
Having been offered “deferred prosecution,” Saul never admitted to (or was found guilty) of wrongdoing. In other words, he was not convicted of animal cruelty. Still, Saul feared that the upgraded charge might jeopardize his path to citizenship.
Saul’s situation raises several issues non-citizens face when ticketed for city code/ordinance violations or arrested and charged with a misdemeanor or felony.
Do State and Federal Law Enforcement Agencies Maintain Ordinance Violation Records?
Being charged with a local ordinance (versus a criminal law) violation does not rule out the possibility that a legal resident could face future immigration problems.
It is common for police departments to process ordinance violations differently from criminal law violations. When someone is charged with a criminal law violation, the individual is arrested and escorted to the police station, where s/he is fingerprinted and photographed (mugshot). In most cases, police departments do not arrest individuals charged with a municipal code or ordinance violation.
Most of the time, when no arrest takes place, the incident is not reported to the Illinois State Police (ISP). The ISP is the state agency responsible for maintaining all arrest records for the state. The ISP has the additional responsibility of relaying this information to the Federal Bureau of Investigation (FBI).
That said, there is no guarantee that an ordinance violation has not been reported to the ISP and FBI. Over the years, I’ve come across a handful of instances where such information was sent to the ISP.
There are two ways to find out if an ordinance violation has been reported to the ISP: 1) contact the police records department, or 2) undergo “Access and Review,” which entails submitting fingerprints to the ISP to obtain a state criminal history report.
Although Saul wasn’t arrested, Saul’s court file contained an arrest report and a copy of the municipal ordinance complaint form Saul was issued. Seeing this, I advised Saul to undergo Access and Review.[2]
Is Animal Cruelty a Crime Involving Moral Turpitude?
Setting aside the question of whether an ordinance violation was reported to the ISP, the more important question to ask: Is the violation/crime a crime involving moral turpitude (CIMT)?
Generally, retail theft, fraud, intent harm to another are CIMTs. If a legal resident pleads/ is found guilty of multiple CIMTS, s/he could face deportation. Even just one CIMT conviction can delay citizenship if it occurred within a certain time period.
Under federal immigration case law, animal cruelty has been held to be a CIMT. Since he was never convicted, Saul should not face any negative consequences from this incident. A simple record of an arrest can’t derail someone’s application for citizenship or initiate deportation proceedings.
Does Expungement Hurt or Help Someone Seeking Citizenship?
It is a common misconception that expunging and/or sealing a criminal record will improve one’s chances of becoming a citizen. This is absolutely not true. Any interaction (ordinance or criminal violation) with law enforcement has to be disclosed to immigration authorities during the citizenship application process.
Many people can and do apply for citizenship without engaging the services of an immigration attorney. However, for those who’ve had interactions with law enforcement, a consultation with an immigration attorney is highly recommended to discuss the following topics:
To see whether someone has been convicted of a CIMT (or aggravated felony);
To see whether legal grounds exist to recommend a delay in applying for citizenship; and
To see if it is best to put off expunging or sealing one’s criminal record until after citizenship has been granted.
Given the current U.S. political climate – punctuated by daily calls seeking stricter immigration enforcement -- the last thing a legal resident wants to do is fail or forget to disclose his or her legal transgressions.
[1] City codes or local ordinances usually include minor infractions for such things as criminal damage to property, criminal trespass, theft, or assault/battery. These same offenses can be charged as Class A, B, or C misdemeanors under the state’s criminal code.
[2] Another reason for obtaining a copy of one’s criminal record is to avoid the possibility of not disclosing all arrests. For example, it is not unusual to forget about an arrest when no formal charges were ever filed.