The NY Clean Slate Act took effect on November 16, 2024. Under the Clean Slate Act individuals convicted of crimes (other than sex crimes and non-drug related Class A Felonies) in the State of New York will have their conviction(s) automatically sealed after a waiting period. The waiting period being three years for a misdemeanor conviction and eight years for a felony conviction. The waiting period to start running after they are sentenced and complete any term of imprisonment. The person cannot get convicted of a new offense during that time period and they must complete any probation, parole, or community service and otherwise comply with any post-release supervision. The person cannot have any pending criminal charges either.

Under the CSA, if an individual was convicted of a felony in 2007 and served two years in jail then was never convicted of another crime then that conviction will automatically be sealed by the State of New York by November 16, 2027. This will help thousands of individuals with criminal records to be able to find employment and access housing much more easily.

Limitations of the NY Clean Slate Act

This law will help many New Yorkers but it is important that the large immigrant population in New York understand the limitations of this law.

The records that are sealed don’t disappear from your record. The sealed records may also still be seen when applying for a firearm license or for employment in law enforcement or certain positions that involve caring for children. Other potential employers that may access your sealed records include:

• Entities that are allowed to run fingerprint-based background checks for work with vulnerable populations like children, the elderly, and people with disabilities
• Entities that are mandated by law to consider sealed records or run fingerprint-based background checks;
• The New York State Education Department (NYSED) for purposes including hiring in public, private, and religious schools, disciplinary proceedings, and licensing;
• Private transportation companies like Uber and Lyft; and
• Police and peace officers, which include corrections officers and some armed security guards employed by the government.

Also, your sealed records are still going to be accessible to¹:

• Police, prosecutors, defense counsel, judges, and court officials will continue to have access to sealed records. Biometric information, including DNA and fingerprints, will remain accessible for law enforcement and prosecutors.
• Local, state, and federal agencies conducting background checks for firearm licenses.
• The Department of Motor Vehicles (DMV) will have access to driving-related sealed records.

How Will the Clean Slate Act Effect Eligibility For Immigration Benefits?

As it relates to US immigration it is important to note that the sealing of your records under the Clean Slate Act will have no impact for immigration purposes². As previously explained, the sealed records can still be seen by law enforcement and the DMV, and Federal Immigration Officials. Most importantly, a sealed criminal record must still be disclosed to immigration. If you were arrested and convicted of a crime that is sealed under CSA or any other provision of NYS law you are still required to answer in the affirmative on any form that has the question “have you ever been arrested, cited, or detained by law enforcement?” or “have you ever been convicted of a crime?” The same is true if you are asked the question by a Government official either at an immigration interview, in Court, or while traveling and passing through customs.

A conviction that is sealed under the CSA will still render a noncitizen removable or inadmissible regardless of whether or not is sealed. A conviction is a conviction and there is no exception in the law for sealed convictions. Section 101(a)(48) (A) of the Immigration and Nationality Act defines conviction as:

(48)(A) The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where-

(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

See INA §101(a)(48) (A); 8 CFR §1101 (a)(48).

What About Other NYS Laws That Allow For Sealing of Records After 10 Years or For Marijuana Possession Offenses?

They will not impact immigration eligibility either. It would still be considered a conviction under US immigration law.

The Board of Immigration Appeals has addressed the issue in various contexts. Matter of Chavez-Alvarez, 26 I. & N. Dec. 274 (BIA Mar. 14, 2014); Matter of Cuellar-Gomez, 25 I&N Dec. 850, 855 (BIA Jul. 18, 2012) (Kansas conviction of possession of marijuana, in violation of a Wichita municipal ordinance, constituted a conviction for immigration proceedings because the Wichita proceedings required proof beyond a reasonable doubt, even though there was no right to counsel or jury trial). The Second Circuit Court of Appeals has as well, “formal judgment of guilt” is defined by reference to Federal Rule of Criminal Procedure 32(k)(1), which provides that “[i]n the judgment of conviction, the court must set forth the plea, the jury verdict or the court’s findings, the adjudication, and the sentence.”Puello v. Bureau of Citizenship and Immigration Servs., 511 F.3d 324, 329 (2d Cir. 2007).

Just because New York State decided to seal the records does not change their impact under Federal Law. See Matter of German Santos, 28 I&N Dec. 552, 557 (BIA 2022) (stating that whether immigration consequences flow from a State conviction is “a question of federal, not state, law, despite the fact that the predicate offense and its punishment are defined by the law of the State”).

In 2024 the Board of Immigration Appeals issued a precedential decision regarding the circumstances under which a State Court vacates a conviction, which is extremely similar to this exact issue. The Board addressed whether the State’s vacatur would be recognized for immigration purposes. See Matter of Azrag, 28 I&N Dec. 784 (BIA 2024). In that case a noncitizen in Kansas was convicted of a removable offense. The State of Kansas ended up vacating that criminal conviction and allowing him to plea to a lower charge that, if recognized for immigration purposes, would defeat the charges of removability and allow him to keep his legal permanent resident status.    

The Board found insufficient evidence in the record to determine that the convictions were vacated because of a defect in his criminal proceedings (that is, the constitutional right to effective assistance of counsel). The general rule with state court vacaturs is that they are recognized for immigration purposes when they are related to a substantive or procedural defect in the underlying proceedings; they are not recognized when they are done for purely rehabilitative purposes, such as to avoid immigration consequences. The Clean Slate Act does not vacate convictions, rather seals them, but it does so for rehabilitative purposes. The records are sealed after a set period of years upon showing rehabilitation. It has nothing to do with any defect in the underlying court proceedings or the law, so it would never be recognized for immigration purposes pursuant to Matter of Azrag, 28 I&N Dec. 784 (BIA 2024).

If your conviction is vacated because of legal reasons relating to the underlying case then immigration will recognize that but cases that are disposed of for rehabilitation alone will remain as convictions with full force and effect.

FOOTNOTES:

1. According to the New York State Attorney General’s Frequently Asked Questions About the Clean Slate Act Webpage available at https://www.cleanslateny.org/faq ↩︎
2. According to the New York State Attorney General’s Frequently Asked Questions About the Clean Slate Act Webpage available at https://www.cleanslateny.org/faq ↩︎
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