FBI BACKGROUND CHECK

[pushbrk 12,328]

That post from attorney"s website is not beleivable ..The second sentence says "In fact, if one has ever been arrested / charged / cited / convicted, s/he will have to reveal this fact whenever any immigration forms are filled out and/or any immigration benefits are sought" Is this a true statement ?

Of course it is. "Have you ever been arrested?" is an entirely different question from "Have you been convicted?" Remember, the US Citizen is only asked about certain specific convictions and is required to provide the court records even if expunged, if the answer is yes. The intending immigrant, who is unlikely to have any US records expunged anyway, is asked about arrests in the visa applications and must provide a police report from one or more contries of residence depending on the circumstances.

The assertion you disagreed with is with respect to (US Citizen) "convictions" that may have been expunged in State courts but are still available and will appear in FBI background checks for citizens and non-citizens alike. Dept. of Homeland Security is an exception to expungement law.

What's more relevent, IMO to the OP's original post is that unless it's AWA related, whether the conviction shows up in an FBI background check makes no difference, as only AWA related convictions can impact petition approval. Paroled armed robbery felons get petitions approved. So do paroled rapists. The difference is IMBRA requires the beneficiary be informed about the rape conviction.

Edited December 25, 2008 by pushbrk

[texphil 0]

That post from attorney"s website is not beleivable ..The second sentence says "In fact, if one has ever been arrested / charged / cited / convicted, s/he will have to reveal this fact whenever any immigration forms are filled out and/or any immigration benefits are sought" Is this a true statement ?

Of course it is. "Have you ever been arrested?" is an entirely different question from "Have you been convicted?" Remember, the US Citizen is only asked about certain specific convictions and is required to provide the court records even if expunged, if the answer is yes. The intending immigrant, who is unlikely to have any US records expunged anyway, is asked about arrests in the visa applications and must provide a police report from one or more contries of residence depending on the circumstances.

The assertion you disagreed with is with respect to (US Citizen) "convictions" that may have been expunged in State courts but are still available and will appear in FBI background checks for citizens and non-citizens alike. Dept. of Homeland Security is an exception to expungement law.

What's more relevent, IMO to the OP's original post is that unless it's AWA related, whether the conviction shows up in an FBI background check makes no difference, as only AWA related convictions can impact petition approval. Paroled armed robbery felons get petitions approved. So do paroled rapists. The difference is IMBRA requires the beneficiary be informed about the rape conviction.

OK so what about a non-conviction ?

[pushbrk 12,328]

That post from attorney"s website is not beleivable ..The second sentence says "In fact, if one has ever been arrested / charged / cited / convicted, s/he will have to reveal this fact whenever any immigration forms are filled out and/or any immigration benefits are sought" Is this a true statement ?

Of course it is. "Have you ever been arrested?" is an entirely different question from "Have you been convicted?" Remember, the US Citizen is only asked about certain specific convictions and is required to provide the court records even if expunged, if the answer is yes. The intending immigrant, who is unlikely to have any US records expunged anyway, is asked about arrests in the visa applications and must provide a police report from one or more contries of residence depending on the circumstances.

The assertion you disagreed with is with respect to (US Citizen) "convictions" that may have been expunged in State courts but are still available and will appear in FBI background checks for citizens and non-citizens alike. Dept. of Homeland Security is an exception to expungement law.

What's more relevent, IMO to the OP's original post is that unless it's AWA related, whether the conviction shows up in an FBI background check makes no difference, as only AWA related convictions can impact petition approval. Paroled armed robbery felons get petitions approved. So do paroled rapists. The difference is IMBRA requires the beneficiary be informed about the rape conviction.

OK so what about a non-conviction ?

In what context? FBI has access to arrest records. AWA arrests without convictions are "not convictions". "Convictions" can impact the US Citizen's petitioning process. Both arrests and convictions can impact the intending immigrant's process. Remember, US Citizens don't submit visa applications. Intending immigrants do. An additional Caveat would be that a US Citizen with a terrorism related arrest is going to have a significant delay and very hard time getting a petition approved, whether convicted or not. "Not yet approved" is not the same as "denied" it can be a distinction without a difference, in that the petitioned immigrant doesn't have a visa.

[rebeccajo 14]

http://www.fbi.gov/hq/cjisd/arrestdispositions.htm

ARREST DISPOSITION SUBMISSION

Section I. Introduction

A Criminal History Record includes an individual's identifiers (descriptive information and fingerprints), arrests and subsequent dispositions. Dispositions are posted to the National Criminal History Record File by the FBI's Criminal Justice Information Services (CJIS) Division. Each criminal arrest for which the CJIS Division has a fingerprint submission should have a disposition.

The FBI defines a disposition as an action regarded by the criminal justice system to be final. A disposition states that arrest charge(s) have been modified, dropped or reports the findings of a court.

Dispositions are submitted by criminal justice agencies and posted to the Criminal History Record to ensure accuracy and completeness. Dispositions are submitted to the CJIS Division by:

* State Criminal History Repositories

* Arresting Agencies (Sheriff's Offices, Police Departments, State Police, Correctional Facilities)

* Courts

* Federal Agencies (FBI, Drug Enforcement Agency, Bureau of Alcohol, Tobacco and Firearms, U.S. Marshals, Immigration and Naturalization Service, etc.)

Importance of Arrest Dispositions

In every instance where criminal arrest fingerprints have previously been submitted to the FBI, it is imperative that the final disposition be submitted to maintain a complete and accurate Criminal History Record.

A complete Criminal History Record is important to Law Enforcement for investigative purposes. A complete Criminal History Record is also important for non-criminal justice background checks for employment, licensing, adoption, citizenship and firearm purchases. In any of these cases, if a disposition is not present on the applicant's Record, this could prevent or delay finalization of these proceedings.

Many believe that if the disposition information is updated directly to the Interstate Identification Index (III) through the National Crime Information Center (NCIC), it is not necessary to submit this information to the FBI. But, because III is not being used for handling interstate non-criminal justice background checks, such requests continue to be handled by the FBI. For this reason, the FBI's Criminal History Record File must continue to be maintained and kept up-to-date.

Section II. Arrest Disposition Submission Formats

Dispositions can be submitted via magnetic tape and compact disk-read only memory (CD-ROM) both by Machine Readable Data (MRD) and paper format (Disposition Forms).

Approximately 95 percent of all dispositions received by the CJIS Division are submitted on MRD tape. States submitting dispositions via MRD tape prepare the disposition information on magnetic tape per specified guidelines established in the Disposition / Expungement MRD Specifications Manual. Each tape contains approximately 20,000 dispositions. MRD tapes are mailed to the CJIS Division monthly for processing. The tapes result in automatic updates to Criminal History Records with minimal manual intervention. There is no waiting period for a disposition to be posted once the CJIS Division receives the MRD tape. The information is posted instantaneously when the tape is processed. This means in a matter of hours, several thousand Records will have updated disposition information. MRD results in major savings in personnel resources and faster processing.

MRD Requirements

Currently, only state agencies can submit dispositions via MRD tape. In order to submit dispositions via MRD tape, the state must meet the following requirements:

* Must be a Single Source State - This means that the State Criminal History Repository is the channeling agency for dispositions, expungement requests, corrections, deceased notices and consolidations.

* State Criminal History Repository must be the Point of Origin for MRD submission.

* Media Types: 3480 Cartridge or 8 mm Tape, or CD-ROM.

For more information, contact the FBI at 304-625-5590 and ask for the Disposition / Expungement MRD Specifications Manual.

Paper Disposition Forms

Some examples of paper Disposition Forms include:

* Court Orders

* Computerized Forms Devised and Approved by the Respective State

* R-84 Final Disposition Report

The R-84 Final Disposition Report is the most commonly used paper Disposition Form. The R-84 is a standard form available through the FBI, free of charge. To order R-84 Final Disposition Report or R-84 Training Forms, contact the FBI at 304-625-3983.

Required Information for the R-84 Final Disposition Report R-84 Final Disposition Report

1) Name

The name submitted on the original arrest fingerprints that established the record. The format is last name followed by a comma, first and middle name, if any. Suffixes denoting seniority (e.g., Jr., Sr., III, etc.) should follow the middle name.

2) Date of Birth (DOB)

DOB in month, day and year format (e.g. MM/DD/YYYY). If a complete DOB is not known, enter the approximate age of the subject followed by the statement, "Years of Age."

3) Contributor of Fingerprints

The name and location of the agency that submitted the original arrest fingerprints.

4) Date Arrested or Received

Date the subject was arrested by the contributor of the original arrest fingerprints. The format is month, day and year (e.g., MM/DD//YYYY).

5) Offenses Charged at Arrest

Express the original arrest charge(s) in literal terms (e.g., murder, rape, robbery, etc.). Numeric arrest codes and U.S. Title Codes are acceptable when accompanied by the literal charge.

6) Final Disposition

* List all final disposition information, including the sentence date for each charge.

Include amended charges

* Indicate the type of sentence imposed if applicable (e.g., consecutive, concurrent, probation, etc.)

* Number each disposition to correspond with the appropriate charge

* If the subject was convicted or plead guilty to a lesser charge, include the modification with the disposition

* Indicate if a single final disposition applies to all charges listed (e.g., five years prison on charges of burglary and theft)

7) Submitting Agency

The Originating Agency Identifier (ORI) number, agency name, city, and state of the submitting agency. Also, provide signature, date, and title.

The current version of the R-84 Final Disposition Report is dated 8/99. Previous versions of the R-84 required the right fingerprint impressions of the subject. Fingerprint impressions are no longer required.

Other Helpful Information for the R-84 (But Not Required)

1) FBI Number

2) State Identification Number (SID)

The SID is an identifying number assigned to the subject of record by the state in which the arrest occurred. Enter SID numbers with no more that ten alphanumeric characters, which includes the state abbreviations.

3) Social Security Number (SOC)

Common Reasons Dispositions Could Be Rejected

No FBI Record Established for Subject ("Non-Ident") or Date of Arrest Not on File

In both of these cases, the CJIS Division has not received arrest fingerprints related to the disposition submission. No FBI Record means that the Criminal History Record File does not contain a Record for the subject. No Date of Arrest means there is a Record, but the arrest to which the disposition refers is not on file.

Missing Information

* No State Criminal History Repository (Identification Bureau) Stamp - Some states require that criminal history documents be processed through the State Criminal History Repository prior to being sent to the FBI. States that process documents through the State Repository will place a State stamp on the document when processing has been completed.

* No Disposition Provided or Non-Final Disposition - Examples of Non-Final Dispositions are: bail set, held, hearing date, trial date, charged with. This information is not posted to a subject's Criminal History Record.

* No Name or Date of Birth Provided - This information is needed to identify the appropriate Record to post the Disposition.

* No Charge Provided - The CJIS Division cannot determine which arrest cycle to associate the disposition, without the original arrest charge.

* No Date of Arrest Provided - Without the Date of Arrest it is difficult to determine what arrest cycle the disposition should be associated.

Charge Not in Literal Form

Numeric arrest codes and U.S. Title Codes are acceptable only when accompanied by the literal charge.

Date of Arrest Does Not Match

Not Identifying Appropriate Disposition to the Appropriate Charge

If there are multiple arrest charges on the R-84, it is important to indicate which disposition goes with each charge. Please include any amended charges.

Illegible Handwriting

Section III. Court Ordered Expungement

If a certified or authenticated copy of a court ordered expungement is submitted with the R-84 Final Disposition Report, please check the box "Court Ordered Expungement," on the R-84 Final Disposition Report and attach the court order.

An expungement is a deletion of a single arrest or an entire Record. Each state employs unique forms for submitting expungement information to the CJIS Division to ensure the Criminal History Record at the FBI is expunged. However, the following information should be on every expungement request, regardless of the form used:

* Name

* Date of birth or FBI number

* Expungement terminology (e.g., delete, expunge, purge, etc.)

* Date of Arrest

* Charge(s) to be removed

* Copy of court order (in accordance with state guidelines)

* State Bureau Stamp or letterhead (in accordance with state guidelines)

For questions regarding the expungement procedures contact the State Criminal History Repository in the state in which the arrest occurred.

Section IV. Customer Service

For questions regarding Disposition Submission or how to submit Dispositions via MRD tape, contact the FBI at 304-625-5590 or e-mail your question to Liaison@Leo.gov.

To Order R-84 Final Disposition Reports or R-84 Training Forms

Contact the FBI at 304-625-3983.

Mailing Address

Mail paper dispositions or expungements to the following address:

FBI Criminal Justice Information Services Division

1000 Custer Hollow Road

Clarksburg, West Virginia

26306

[pushbrk 12,328]

http://www.fbi.gov/hq/cjisd/arrestdispositions.htm

The quoted source is long and informative but does not contradict my assertion or cited sources (including the highly respected Murthey.com because it doesn't indicate the FBI "deletes" the associated record. "Expunge" does not meat "delete". It is a segregation. (I have a relative and a good friend who are retired FBI agents as well as a good friend on the State department's equivalent of the Secret Service.)

ARREST DISPOSITION SUBMISSION

Section I. Introduction

A Criminal History Record includes an individual's identifiers (descriptive information and fingerprints), arrests and subsequent dispositions. Dispositions are posted to the National Criminal History Record File by the FBI's Criminal Justice Information Services (CJIS) Division. Each criminal arrest for which the CJIS Division has a fingerprint submission should have a disposition.

Yes, if reported, the FBI will be aware of the arrest AND disposition, including expungement, if reported but the record is clearly there for them to see. This document also indicates how a State would submit information about an expungement....

Section III. Court Ordered Expungement

If a certified or authenticated copy of a court ordered expungement is submitted with the R-84 Final Disposition Report, please check the box "Court Ordered Expungement," on the R-84 Final Disposition Report and attach the court order.

An expungement is a deletion of a single arrest or an entire Record. Each state employs unique forms for submitting expungement information to the CJIS Division to ensure the Criminal History Record at the FBI is expunged. However, the following information should be on every expungement request, regardless of the form used:

* Name

* Date of birth or FBI number

* Expungement terminology (e.g., delete, expunge, purge, etc.)

* Date of Arrest

* Charge(s) to be removed

* Copy of court order (in accordance with state guidelines)

* State Bureau Stamp or letterhead (in accordance with state guidelines)

...and gives a description of what expungement is on the State level (see red) but gives no indication the submission results in anything but the addition information that expungement is part of the record. They do not say how they deal with the information once they get it. Federal law does not require them to remove a State expunged record from their database. They certainly don't remove the fingerprints from the database(s) or the reason the prints are in the system. (arrest record including disposition if in the system from an arrest booking)

Murthy indicates DHS is an exemption to expungement. A further clue is on the I-129F where USCIS indicates even expunged convictions must be considered in both answering the IMBRA conviction questions and for providing court records, on expunged convictions.

Again, the FBI has the record of all convictions and can and will disclose them to the Department of Homeland Security for immigration and other cases as provided by law. So, the OP's conviction will be in the record but unless AWA or terrorism related, is not grounds for petition denial.

[rebeccajo 14]

What do you think the FBI does with the information, Mike?

Why do you think they have explicit instructions on how to send information on expunged records to them? Just so it LOOKS like they do it?

As far as Murthy goes, I don't take the same thing from it that you do. Of course, I read the whole thing.

[pushbrk 12,328]

What do you think the FBI does with the information, Mike?

Why do you think they have explicit instructions on how to send information on expunged records to them? Just so it LOOKS like they do it?

As far as Murthy goes, I don't take the same thing from it that you do. Of course, I read the whole thing.

It is my understanding the FBI maintains the record including the expungement and discloses it only for law enforcement purposes as provided by law but does not make the record publicly available or available to Equifax or other such private agencies. This, of course, includes Dept. of Homeland Security.

How do YOU explain this from the I-129F?

Answering this question is required even if your records were sealed or otherwise cleared or if anyone, including a judge, lawenforcement officer, or attorney, told you that you no longer have a record. Using a separate sheet(s) of paper, attach information relating to the conviction(s), such as crime involved, date of conviction and sentence.

Yes, I read all the Murthy.com piece. What part do you think supports your assertion?

Edited December 26, 2008 by pushbrk

[rebeccajo 14]

Here's the bit from Murthy that I refer you too:

"A criminal record that has been expunged makes it more difficult for a defendant and for the USCIS to verify the disposition information. Because of this, it is a good idea to obtain several certified copies of the disposition information prior to the expungement. Some individuals choose to wait until they are U.S. citizens before completing the expungement process, if the particular charge will not create problems with employment or other matters. [/b]

Insofar as the I129F, the form requires all convictions be disclosed regardless of whether or not they have been expunged. It seems to me that the question on the form supports the paragraph from Murthy.

I idly note that your cite from Murthy does appear to be addressing legal permanent residents, and not citizens. While LPR's have due process and other protections under the law, ICE has juris over them by virtue of that status. If Murthy indicates that an LPR can have their record expunged to the extent that the alien may need to include documentation to USCIS, do you think that means the bar is higher for a USC?

[pushbrk 12,328]

Here's the bit from Murthy that I refer you too:

"A criminal record that has been expunged makes it more difficult for a defendant and for the USCIS to verify the disposition information. Because of this, it is a good idea to obtain several certified copies of the disposition information prior to the expungement. Some individuals choose to wait until they are U.S. citizens before completing the expungement process, if the particular charge will not create problems with employment or other matters. [/b]

Insofar as the I129F, the form requires all convictions be disclosed regardless of whether or not they have been expunged. It seems to me that the question on the form supports the paragraph from Murthy.

I idly note that your cite from Murthy does appear to be addressing legal permanent residents, and not citizens. While LPR's have due process and other protections under the law, ICE has juris over them by virtue of that status. If Murthy indicates that an LPR can have their record expunged to the extent that the alien may need to include documentation to USCIS, do you think that means the bar is higher for a USC?

My sources inform me that all criminal records ever resident with the FBI are available to federal agencies, whether for Citizens, visitors or LPR's and that "expungement" which again does not mean "deletion" is noted. The law is followed with regard to expungement but the law provides that expunged records are available for law enforcement purposes.

Your earlier assertion that a State's reporting practices have impact is correct but not to the extent the arrest record would not be maintained in the database. As Murthy's passages tend to support, the reporting practices can cause difficulty in the FBI's access to "disposition" of arrests. I'm not certain how that works, but I suppose some arrest cases get reported and then disposition is later not properly reported, perhaps because expungement occured before disposition was reported. This would result in an FBI arrest record without a disposition record to go with it. This paragraph is solely my opinion based on my read, provided in response to your "Do you think..." question.

[rebeccajo 14]

http://criminal.lawyers.com/Criminal-Law--...nt-FAQ.html#one

A: Expungement is often equated to the sealing or destroying of legal records. Each state offers its own definition of expungement, based on different rules and laws. Generally, expungement can be viewed as the process to "remove from general review" the records pertaining to a case. But the records may not completely "disappear" and may still be available to law enforcement.

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Q: What can be expunged?

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A: Generally, all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person's detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system can be expunged. Each state sets its own guidelines for what records can be expunged.

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Q: Are juvenile records expunged?

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A: Most states have laws that allow, or possibly even require, the expungement of juvenile records once the juvenile reaches a certain age. In some cases, the records are destroyed; sometimes they are simply "sealed." The purpose of these laws is to allow a minor who has committed criminal acts, or in the language of the juvenile courts, "delinquent acts," to erase his record permanently, usually at the age of 17 or 18. The idea is to allow the juvenile offender to enter adulthood with a "clean slate," shielding him from the negative effects of having a criminal record.

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Q: Who can get their court record expunged?

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A: Eligibility for an expungement of arrest, investigation, or detention record will be based on state law. Often a number of conditions must be met before the request will be considered, including:

A minimum length of time has passed since arrest

There have been no intervening arrests

The proceedings were dismissed

Acquittal

Discharge without conviction and no charges were refiled

Release without formal charges being filed

Any juvenile records have been expunged

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Q: Can an expungment be denied?

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A: Yes. Each state sets its' own standards. Some factors which may contribute to a denial include:

Time period required by law has not been met. This time period often does not begin until all confinement and probation has been completed and fines are paid.

Additional convictions exists

A previous expungement exits

Pending arrest(s)

Conviction of a sexual offense

Registered sex offender

Court records indicate that the case is still open.

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Q: If my record is expunged, do I have to ever have to acknowledge the case again?

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A: With limited exception, you may thereafter truthfully state that you were never arrested, charged, or accused of a crime. In the eyes of the law, the entire incident never occurred. In most respects, a sealing or expungement restores you to the status you occupied before being arrested or charged.

You should be aware that the federal government need not honor the expungement, nor does an expungement of a conviction necessarily relieve a person from having to disclose it in an application for public office or on some professional license applications.

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Q: Can previously sealed records ever be unsealed?

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A: Possibly. Previously sealed records can be unsealed in some states under specified conditions.

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Q: Are records ever "automatically" expunged?

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A: Arrest and conviction records aren't automatically expunged or sealed after a period of years. Individuals seeking expungement generally have to apply (in writing) and follow the established procedure.

*edited to add that the source is Lexis-Nexis, publisher of code books for all fifty states*

Edited December 26, 2008 by rebeccajo

[Grahm&Sarah 0]

WHOA! Slow down folks. I am not the brainiac you guys are. In simpliest terms - will an expunged felony (that was not of sexual or violent nature) hurt or even EFFECT/sway/influence my chances of getting a visa for my fiancee? I.E. will it make the USCIS/consulate doubt the validity of our relationship or my character as a person? That is the bottom line I want to know.

Thank you

Grahm

[rebeccajo 14]

WHOA! Slow down folks. I am not the brainiac you guys are. In simpliest terms - will an expunged felony (that was not of sexual or violent nature) hurt or even EFFECT/sway/influence my chances of getting a visa for my fiancee? I.E. will it make the USCIS/consulate doubt the validity of our relationship or my character as a person? That is the bottom line I want to know.

Thank you

Grahm

AWA convictions stop a petition cold turkey. No chance to make it to the consulate.

The criteria for having any petition approved are few. US citizenship; intent to marry the petioner; both free to marry; met within the last two years. If your record does not indicate an AWA conviction, it won't affect approval of an I129F.

A disclosed criminal record for non-AWA convictions SHOULDN'T affect your beneficiaries visa application, unless the puzzle pieces that make up 'totality of circumstance' set off some questions in the CO's mind.

[pushbrk 12,328]

WHOA! Slow down folks. I am not the brainiac you guys are. In simpliest terms - will an expunged felony (that was not of sexual or violent nature) hurt or even EFFECT/sway/influence my chances of getting a visa for my fiancee? I.E. will it make the USCIS/consulate doubt the validity of our relationship or my character as a person? That is the bottom line I want to know.

Thank you

Grahm

AWA convictions stop a petition cold turkey. No chance to make it to the consulate.

The criteria for having any petition approved are few. US citizenship; intent to marry the petioner; both free to marry; met within the last two years. If your record does not indicate an AWA conviction, it won't affect approval of an I129F.

A disclosed criminal record for non-AWA convictions SHOULDN'T affect your beneficiaries visa application, unless the puzzle pieces that make up 'totality of circumstance' set off some questions in the CO's mind.

I agree completely. The chances of an non-AWA conviction negatively impacting the approval of a petition are slim and none.

[pushbrk 12,328]

http://criminal.lawyers.com/Criminal-Law--...nt-FAQ.html#one

A: Expungement is often equated to the sealing or destroying of legal records. Each state offers its own definition of expungement, based on different rules and laws. Generally, expungement can be viewed as the process to "remove from general review" the records pertaining to a case. But the records may not completely "disappear" and may still be available to law enforcement.

The "may" in these statments is general and it is used to avoid providing all potential circumstances where the record "may not" disappear. One of them "IS" not "may be" the USCIS ordered background check associated with a US Citizen's petition for a relative or fiance(e).

[Grahm&Sarah 0]

Thanks everyone - I'll keep you posted!

Grahm&Sarah