FBI BACKGROUND CHECK

[rebeccajo 14]

Is this your reference to security checks?

"Q9. Won’t the FBI continue to report my criminal history?

A. The FBI is governed by federal law, not State law. As such, the FBI is not required to honor State court orders to expunge criminal records. However, as a matter of course, the FBI does routinely honor such orders.

Q10. What about other federal agencies?A. Important federal exceptions to the effectiveness of expungement orders are the Department of Homeland Security, including Immigration and Customs Enforcement (ICE). Non-citizens applying for entry into the United States, or seeking naturalization, will likely need to divulge arrests and convictions, even after they have been expunged. The way to best handle such situations involves complicated issues of immigration law. Persons facing such issues should consult with a lawyer who specializes on that subject."

I have emboldened certain points which I believe DO NOT support your Big Brother argument.

Again, ICE is not USCIS. They are separate. DHS may be the umbrella under which both ICE and USCIS operate, but they maintain a system of checks and balances. That system, believe it or not, limits the SCOPE of information sharing that occurs between the agencies.

Insofar as your unwillingness to re-read the memo you've supposedly read before, what more can I say? The memo specifically references IBIS. If you are interested in what USCIS is looking for in that IBIS search, I refer you to this old Department of Justice audit report (when the Service was still referred to as INS).

http://www.usdoj.gov/oig/reports/INS/a0314/findings.htm

IBIS Check Process

According to the current INS's Standard Operations Procedure Manual for the Interagency Border Inspection System (November 21, 2002), each service center must conduct IBIS checks on all petitions within 15 days of receipt. Checks are conducted in daily batches17 that include all petitions and applications received, transferred in, reopened, or that have had a data change. The IBIS check requirement mandates that checks be conducted for all petitioners, applicants, beneficiaries, and any derivatives (for example, businesses and attorneys) that will receive an immediate benefit from submitted applications and petitions. Premium petitions are not checked separately; rather they are generally included in the daily batches.

The IBIS check is valid for only 35 days. During our fieldwork, INS officials stated that the initial IBIS batch checks might not capture all new receipts, potentially missing up to 20 percent of petitions received.18 Although no reason was given for missing any receipts, we were told that if, at the time of adjudication, a petition does not contain evidence of an IBIS check, or if the check was conducted more than 35 days prior to adjudication, the Center Adjudications Officer must perform an individual check on that petition.19 Adjudicators are authorized to perform two different types of IBIS checks, as described below:

SQ-11 Query - Individual subject query, allows the user to check a person's name and date of birth against the IBIS database through data entry of the search criteria.

SQ-16 Query - Business subject query, allows the user to check the name of a business or school against the IBIS database through data entry of the search criteria

All matches or hits are sent to the service center's Triage Review Unit for a second, more detailed check to verify that all hits match the correct name and date of birth as recorded on the petition. According to INS staff, approximately one half of the initial IBIS hits are found to be actual matches. In those instances, the Triage Review Unit determines whether the reason for the hit is significant enough to affect adjudication. To accomplish this, the Triage Review Unit identifies cases relating to aggravated felonies, NCIC matches, terrorism, and threats to national security and forwards those applications to the service center's Enforcement Operations Division (EOD) for further evaluation. The IBIS Standard Operations Procedure requires the EOD to refer the terrorism and national security cases to the National Security Unit (NSU) and the Immigration Services Division (ISD) at INS Headquarters for investigation. All other types of hits may be resolved in the Triage Review Unit, or forwarded to the EOD when deemed appropriate.

[pushbrk 12,614]

Is this your reference to security checks?

"Q9. Won’t the FBI continue to report my criminal history?

A. The FBI is governed by federal law, not State law. As such, the FBI is not required to honor State court orders to expunge criminal records. However, as a matter of course, the FBI does routinely honor such orders.

Q10. What about other federal agencies?A. Important federal exceptions to the effectiveness of expungement orders are the Department of Homeland Security, including Immigration and Customs Enforcement (ICE). Non-citizens applying for entry into the United States, or seeking naturalization, will likely need to divulge arrests and convictions, even after they have been expunged. The way to best handle such situations involves complicated issues of immigration law. Persons facing such issues should consult with a lawyer who specializes on that subject."

I have emboldened certain points which I believe DO NOT support your Big Brother argument.

Again, ICE is not USCIS. They are separate. DHS may be the umbrella under which both ICE and USCIS operate, but they maintain a system of checks and balances. That system, believe it or not, limits the SCOPE of information sharing that occurs between the agencies.

Insofar as your unwillingness to re-read the memo you've supposedly read before, what more can I say? The memo specifically references IBIS. If you are interested in what USCIS is looking for in that IBIS search, I refer you to this old Department of Justice audit report (when the Service was still referred to as INS).

http://www.usdoj.gov/oig/reports/INS/a0314/findings.htm

IBIS Check Process

According to the current INS's Standard Operations Procedure Manual for the Interagency Border Inspection System (November 21, 2002), each service center must conduct IBIS checks on all petitions within 15 days of receipt. Checks are conducted in daily batches17 that include all petitions and applications received, transferred in, reopened, or that have had a data change. The IBIS check requirement mandates that checks be conducted for all petitioners, applicants, beneficiaries, and any derivatives (for example, businesses and attorneys) that will receive an immediate benefit from submitted applications and petitions. Premium petitions are not checked separately; rather they are generally included in the daily batches.

The IBIS check is valid for only 35 days. During our fieldwork, INS officials stated that the initial IBIS batch checks might not capture all new receipts, potentially missing up to 20 percent of petitions received.18 Although no reason was given for missing any receipts, we were told that if, at the time of adjudication, a petition does not contain evidence of an IBIS check, or if the check was conducted more than 35 days prior to adjudication, the Center Adjudications Officer must perform an individual check on that petition.19 Adjudicators are authorized to perform two different types of IBIS checks, as described below:

SQ-11 Query - Individual subject query, allows the user to check a person's name and date of birth against the IBIS database through data entry of the search criteria.

SQ-16 Query - Business subject query, allows the user to check the name of a business or school against the IBIS database through data entry of the search criteria

All matches or hits are sent to the service center's Triage Review Unit for a second, more detailed check to verify that all hits match the correct name and date of birth as recorded on the petition. According to INS staff, approximately one half of the initial IBIS hits are found to be actual matches. In those instances, the Triage Review Unit determines whether the reason for the hit is significant enough to affect adjudication. To accomplish this, the Triage Review Unit identifies cases relating to aggravated felonies, NCIC matches, terrorism, and threats to national security and forwards those applications to the service center's Enforcement Operations Division (EOD) for further evaluation. The IBIS Standard Operations Procedure requires the EOD to refer the terrorism and national security cases to the National Security Unit (NSU) and the Immigration Services Division (ISD) at INS Headquarters for investigation. All other types of hits may be resolved in the Triage Review Unit, or forwarded to the EOD when deemed appropriate.

I'm sorry but "I don't believe..." is not an argument that carries any weight with me without a corresponding "because...." any more than similar from me would carry weight with you.

I'm not sure why you've emboldend "aggravated felonies" since the entire paragraph supports the statement with which you have expressed disagreement which is essentially, that the record is visible whether expunged or not but unless it's AWA related, it won't impact petition approval.

You still haven't given a clue as to relevance of the "memo" I've read before. The reason I'm sure I read it before is I read it again. Why do you think it has something to do with our discussion? I'm afraid this discussion has become tedious and useless for anything or anybody. If you're entertaining yourself, by all means go for it.

[rebeccajo 14]

It's only tedious to you because you believe you can't possibly be wrong.

The OP has questioned whether or not his expunged conviction will show. You assert that it will.

Now my problem with that is because, IMO, you continually paint the picture of dealing with the Service as some sort of contest between the poor, pleading citizens and a headless behemoth. In other words, you make this whole journey seem SCARY.

The journey does not have to be scary! The more we know about the process, the less scary it becomes. If petitioners and beneficiaries can both see that while, indeed, the Service holds a very important decision about our lives in it's hands, that such a decision isn't impossible to surmount....well they are empowered.

Scaring the OP into believing that his expunged record DEFINITELY WILL SHOW is not helping him! Especially when that information is not grounded in fact!

[pushbrk 12,614]

It's only tedious to you because you believe you can't possibly be wrong.

The OP has questioned whether or not his expunged conviction will show. You assert that it will.

Now my problem with that is because, IMO, you continually paint the picture of dealing with the Service as some sort of contest between the poor, pleading citizens and a headless behemoth. In other words, you make this whole journey seem SCARY.

The journey does not have to be scary! The more we know about the process, the less scary it becomes. If petitioners and beneficiaries can both see that while, indeed, the Service holds a very important decision about our lives in it's hands, that such a decision isn't impossible to surmount....well they are empowered.

Scaring the OP into believing that his expunged record DEFINITELY WILL SHOW is not helping him! Especially when that information is not grounded in fact!

Lying to him would help how, again? The OP asked a question. I gave an answer I'm absolutely confident of, which was both that the conviction would show and that unless it was AWA related it won't matter. If you care to read the OP's response, you'll see he wasn't scared by my answer. The journey is or isn't scary depending on mindset and circumstance. The truth may be scary to some but a lie scares me more.

So, I take it the references to the memo are you blowing smoke, since you've not answered three requests to indicate their relevance. Enough of this nonsense.

[rebeccajo 14]

It's only tedious to you because you believe you can't possibly be wrong.

The OP has questioned whether or not his expunged conviction will show. You assert that it will.

Now my problem with that is because, IMO, you continually paint the picture of dealing with the Service as some sort of contest between the poor, pleading citizens and a headless behemoth. In other words, you make this whole journey seem SCARY.

The journey does not have to be scary! The more we know about the process, the less scary it becomes. If petitioners and beneficiaries can both see that while, indeed, the Service holds a very important decision about our lives in it's hands, that such a decision isn't impossible to surmount....well they are empowered.

Scaring the OP into believing that his expunged record DEFINITELY WILL SHOW is not helping him! Especially when that information is not grounded in fact!

Lying to him would help how, again? The OP asked a question. I gave an answer I'm absolutely confident of, which was both that the conviction would show and that unless it was AWA related it won't matter. If you care to read the OP's response, you'll see he wasn't scared by my answer. The journey is or isn't scary depending on mindset and circumstance. The truth may be scary to some but a lie scares me more.

So, I take it the references to the memo are you blowing smoke, since you've not answered three requests to indicate their relevance. Enough of this nonsense.

What is it in the memo you do not understand? It's policy memoranda from USCIS about adjudication. In the memo there is clear reference to IBIS, not to an FBI check. While an IBIS check uses the FBI as one of its sources of information, it is not the only source. And - from the old DOJ report - we see what it is that IBIS contains. We see that that USCIS is interested in aggravated felonies. The OP did not tell us what his crime was so actually it's moot for EITHER of us to say whether it will or will not be reported, isn't it?

This is not nonsense. Former post leaders on VJ used to be thankful for this type of discussion between each other. You get offensive. Why, I have no idea. Unless your intent when you perpetuate this type of discourse IS to actually learn something without conceding that you might have.

I wish meauxna were here. She would box your ears.

Edited December 30, 2008 by rebeccajo

[William33 110]

It is clear from the following recent memo, that any felony crime information is still available to USCIS, irrespective of a criminal record being expunged.

Expungement for all practical purposes, generally seals the information from public access, but not from the Government.

http://www.uscis.gov/err/L4%20-%20Special%...007_01L4210.pdf

It stands to reason, that this applies to the USC and the benficiary equally.

Edited December 30, 2008 by William33

[William33 110]

Pertinent point here:

"Under the statutory definition of "conviction" provided at section 101 (a)(48)(A) of the Act, no effect is to

be given, in immigration proceedings, to a state action which purports to expunge, dismiss, cancel, vacate,

discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state

rehabilitative statute. Any subsequent action that overturns a conviction, other than on the merits of the

Page 3

case, is ineffective to expunge a conviction for immigration purposes. An alien remains convicted for

immigration purposes notwithstanding a subsequent state action purporting to erase the original

determination of guilt.

Edited December 30, 2008 by William33

[rebeccajo 14]

Pertinent point here:

"Under the statutory definition of "conviction" provided at section 101 (a)(48)(A) of the Act, no effect is to

be given, in immigration proceedings, to a state action which purports to expunge, dismiss, cancel, vacate,

discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state

rehabilitative statute. Any subsequent action that overturns a conviction, other than on the merits of the

Page 3

case, is ineffective to expunge a conviction for immigration purposes. An alien remains convicted for

immigration purposes notwithstanding a subsequent state action purporting to erase the original

determination of guilt.

William, that's a decision based upon The 1996 Illegal Immigration Reform and Immigrant Responsibility Act. The law cited has no bearing on US citizens.

Edited December 30, 2008 by rebeccajo

[William33 110]

Pertinent point here:

"Under the statutory definition of "conviction" provided at section 101 (a)(48)(A) of the Act, no effect is to

be given, in immigration proceedings, to a state action which purports to expunge, dismiss, cancel, vacate,

discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state

rehabilitative statute. Any subsequent action that overturns a conviction, other than on the merits of the

Page 3

case, is ineffective to expunge a conviction for immigration purposes. An alien remains convicted for

immigration purposes notwithstanding a subsequent state action purporting to erase the original

determination of guilt.

William, that's a decision based upon The 1996 Illegal Immigration Reform and Immigrant Responsibility Act. The law cited has no bearing on US citizens.

Sure it does. Expungement information is available to USCIS, which is clearly defined in this 2007 memo. If they choose to utilize that information, it will apply to anyone applying for or seeking immigration benefits, if the crime is a valid reason for denial. What constitutes a denial, beyond Adam Walsh issues, is beyond my scope.

Either way, the criminal information is definitely available to USCIS, expungement aside.

[rebeccajo 14]

Pertinent point here:

"Under the statutory definition of "conviction" provided at section 101 (a)(48)(A) of the Act, no effect is to

be given, in immigration proceedings, to a state action which purports to expunge, dismiss, cancel, vacate,

discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state

rehabilitative statute. Any subsequent action that overturns a conviction, other than on the merits of the

Page 3

case, is ineffective to expunge a conviction for immigration purposes. An alien remains convicted for

immigration purposes notwithstanding a subsequent state action purporting to erase the original

determination of guilt.

William, that's a decision based upon The 1996 Illegal Immigration Reform and Immigrant Responsibility Act. The law cited has no bearing on US citizens.

Sure it does. Expungement information is available to USCIS, which is clearly defined in this 2007 memo. If they choose to utilize that information, it will apply to anyone applying for or seeking immigration benefits, if the crime is a valid reason for denial. What constitutes a denial, beyond Adam Walsh issues, is beyond my scope.

Either way, the criminal information is definitely available to USCIS, expungement aside.

William,

No it does not. That memo is referring to expungement as defined under the 1996 Illegal Immigration Reform and Immigrant Responsibility Act.

No matter how you want to slice it, nothing in that law pertains to criminal activity of US citizens.

I also note that in the case cited, the appeal was sustained. The immigrant won the decision.

Edited December 30, 2008 by rebeccajo

[William33 110]

Pertinent point here:

"Under the statutory definition of "conviction" provided at section 101 (a)(48)(A) of the Act, no effect is to

be given, in immigration proceedings, to a state action which purports to expunge, dismiss, cancel, vacate,

discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state

rehabilitative statute. Any subsequent action that overturns a conviction, other than on the merits of the

Page 3

case, is ineffective to expunge a conviction for immigration purposes. An alien remains convicted for

immigration purposes notwithstanding a subsequent state action purporting to erase the original

determination of guilt.

William, that's a decision based upon The 1996 Illegal Immigration Reform and Immigrant Responsibility Act. The law cited has no bearing on US citizens.

Sure it does. Expungement information is available to USCIS, which is clearly defined in this 2007 memo. If they choose to utilize that information, it will apply to anyone applying for or seeking immigration benefits, if the crime is a valid reason for denial. What constitutes a denial, beyond Adam Walsh issues, is beyond my scope.

Either way, the criminal information is definitely available to USCIS, expungement aside.

William,

No it does not. That memo is referring to expungement as defined under the 1996 Illegal Immigration Reform and Immigrant Responsibility Act.

No matter how you want to slice it, nothing in that law pertains to criminal activity of US citizens.

I am simply stating the fact that criminal information is available to USCIS on anyone, irrespective of an expunged case. How they use that information is up to them and the guidance provided by their standard operating procedures (SOP).

I am not privy to this operations information, but given my Government LE background, I am confident that it is used to the fullest extent possible.

Edited December 30, 2008 by William33

[rebeccajo 14]

Pertinent point here:

"Under the statutory definition of "conviction" provided at section 101 (a)(48)(A) of the Act, no effect is to

be given, in immigration proceedings, to a state action which purports to expunge, dismiss, cancel, vacate,

discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state

rehabilitative statute. Any subsequent action that overturns a conviction, other than on the merits of the

Page 3

case, is ineffective to expunge a conviction for immigration purposes. An alien remains convicted for

immigration purposes notwithstanding a subsequent state action purporting to erase the original

determination of guilt.

William, that's a decision based upon The 1996 Illegal Immigration Reform and Immigrant Responsibility Act. The law cited has no bearing on US citizens.

Sure it does. Expungement information is available to USCIS, which is clearly defined in this 2007 memo. If they choose to utilize that information, it will apply to anyone applying for or seeking immigration benefits, if the crime is a valid reason for denial. What constitutes a denial, beyond Adam Walsh issues, is beyond my scope.

Either way, the criminal information is definitely available to USCIS, expungement aside.

William,

No it does not. That memo is referring to expungement as defined under the 1996 Illegal Immigration Reform and Immigrant Responsibility Act.

No matter how you want to slice it, nothing in that law pertains to criminal activity of US citizens.

I am simply stating the fact that criminal information is available to USCIS on anyone, irrespective of an expunged case. How they use that information is up to them and the guidance provided by their standard operating procedures (SOP).

I am not privy to this operations information, but given my Government LE background, I am confident that it is used to the fullest extent possible.

William -

That is what the courts are for. To uphold due process. USCIS is not exempt from the law. They are not "Big Brother".

http://www.altlaw.org/v1/cases/454742

"The INS argues there is a rational basis for deporting an alien such as Garberding, whose conviction has been expunged under Montana's broad expungement statute, and not deporting aliens whose convictions are expunged under a narrow state expungement statute which is the exact counterpart to the FFOA. The INS contends this difference in treatment is rational because "of the differing goals and results that obtain under the Federal First Offender statute, as opposed to broader state expunction remedies." It argues its policy of requiring an exact state counterpart "effects a consistent Congressional policy to deal harshly with drug offenders under the immigration laws [and] to deal strictly with aliens who violate laws governing controlled substances."

30

We reject this argument. Even assuming the INS's policy is consistent with Congressional policy to deal harshly with drug offenders under the immigration laws, when the INS distinguishes one class of aliens for different treatment there must be some rational basis for doing so; otherwise, its classification is wholly irrational. See Tapia-Acuna v. INS, 640 F.2d 223, 225 (9th Cir.1981).

31

Here, there is no rational basis for treating Garberding differently. Had she possessed her marijuana in Michigan, Virginia or Wisconsin, she would not have been subject to deportation. These states have expungement statutes which are the exact counterpart of the FFOA.2 Garberding had the bad luck or poor judgment to possess her marijuana in Montana. The state legislature in Montana has seen fit to extend the privilege of expungement to persons who are convicted of drug offenses more serious than Garberding's simple first time possession. It is this fortuitous circumstance, not Garberding's conduct, which the INS used to distinguish her for deportation. This may indeed reflect a policy of harsh treatment of aliens who commit drug offenses, but distinguishing Garberding for deportation because of the breadth of Montana's expungement statute, not because of what she did, has no logical relation to the fair administration of the immigration laws or the so-called "war on drugs." See Francis v. INS, 532 F.2d 268, 272 (2d Cir.1976) (distinctions between different classes of persons made by federal immigration policies "must be reasonable not arbitrary and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.").

32

Because there is no rational basis for the BIA treating Garberding differently from an alien whose conviction for first time marijuana possession is expunged under a state statute which is the exact counterpart of the FFOA, singling her out for deportation is wholly irrational. The order for her deportation violates her right to equal protection under the Constitution."

Edited December 30, 2008 by rebeccajo

[William33 110]

The US Government does many things behind closed doors. That said, denying visa's for criminals or their petitioner is one among many. After 20 years in the USG, I can assure you that the laws you cite are unique cases that are not applicable or applied in the mainstream.

I am done on this topic, as the facts of USG reach are clear. Ask those denied for further insight.

Regards,

William.

[JonasMichaels 0]

Why?

Because research matters?

We are in agreement on how AWA impacts petition approval. If you have a purpose in mind that has something to do with the subject at hand, please indicate it. If not, I'll research what and when I please. Thank you very much.

*sigh*

All I'm trying to do is point you in another direction. You may forget that my husband spent 17 months in greencard limbo because of his security check. During that time I learned a lot about the process and where to look. The links you put up today have little to do with visa petitioners, and everything to do with status adjustees and applicants for naturaliziation.

You know what - I just really don't care anymore. I don't care that you feel you are right and I don't care that there's nothing I can say to you or show you which would have value.

Hi rebeccajo, why did your husband go through such a long background check? Do you know?

What is the bottom line to this thread on FBI background check? Will an expunged felony (not AWA felony) in the background of the USC cause a problem/denial with the I-129f petition or not? Can we get a BOTTOM LINE?

Jonas

Edited December 30, 2008 by JonasMichaels

[pushbrk 12,614]

It's only tedious to you because you believe you can't possibly be wrong.

The OP has questioned whether or not his expunged conviction will show. You assert that it will.

Now my problem with that is because, IMO, you continually paint the picture of dealing with the Service as some sort of contest between the poor, pleading citizens and a headless behemoth. In other words, you make this whole journey seem SCARY.

The journey does not have to be scary! The more we know about the process, the less scary it becomes. If petitioners and beneficiaries can both see that while, indeed, the Service holds a very important decision about our lives in it's hands, that such a decision isn't impossible to surmount....well they are empowered.

Scaring the OP into believing that his expunged record DEFINITELY WILL SHOW is not helping him! Especially when that information is not grounded in fact!

Lying to him would help how, again? The OP asked a question. I gave an answer I'm absolutely confident of, which was both that the conviction would show and that unless it was AWA related it won't matter. If you care to read the OP's response, you'll see he wasn't scared by my answer. The journey is or isn't scary depending on mindset and circumstance. The truth may be scary to some but a lie scares me more.

So, I take it the references to the memo are you blowing smoke, since you've not answered three requests to indicate their relevance. Enough of this nonsense.

What is it in the memo you do not understand? It's policy memoranda from USCIS about adjudication. In the memo there is clear reference to IBIS, not to an FBI check. While an IBIS check uses the FBI as one of its sources of information, it is not the only source. And - from the old DOJ report - we see what it is that IBIS contains. We see that that USCIS is interested in aggravated felonies. The OP did not tell us what his crime was so actually it's moot for EITHER of us to say whether it will or will not be reported, isn't it?

This is not nonsense. Former post leaders on VJ used to be thankful for this type of discussion between each other. You get offensive. Why, I have no idea. Unless your intent when you perpetuate this type of discourse IS to actually learn something without conceding that you might have.

I wish meauxna were here. She would box your ears.

I understand the memo. You misread the paragraph referring to agravated felonies if you thought it supported your assertion that expunged records aren't in the report. The expunged records are there to be seen. We aren't discussing which ones are going to matter beyond AWA convictions, just whether the service has access to expunged criminal records. They do. How they use the information is another kettle of fish perhaps for another discussion.

I see William33 has provided additional evidence that indeed expunged records are available to USCIS through the agencies it uses to obtain them.