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

What is considered a “conviction” for immigration purposes? Statute & Regulations 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). CASE 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”). Matter of Azrag, 28 I&N Dec. 784 (BIA 2024) 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 will full force and effect. Matter of R-T-P-, 28 I&N Dec. 828 (BIA 2024) [full decision] (1) Under the statutory definition of “conviction” provided at section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (Supp. II 1996), 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. (2) With the enactment of the federal statute defining “conviction” with respect to an alien, our decisions in Matter of G-, 9 I&N Dec. 159 (BIA 1960, A.G. 1961); Matter of Ibarra Obando, 12 I&N Dec. 576 (BIA 1966, A.G. 1967); Matter of Luviano, 21 I&N Dec. 235 (BIA 1996), and others which address the impact of state rehabilitative actions on whether an alien is “convicted” for immigration purposes are no longer controlling. (3) Once an alien is subject to a “conviction” as that term is defined at section 101(a)(48)(A) of the Act, the alien remains convicted for immigration purposes notwithstanding a subsequent state action purporting to erase the original determination of guilt through a rehabilitative procedure. (4) The policy exception in Matter of Manrique, 21 I&N Dec. 58 (BIA 1995), which accorded federal first offender treatment to certain drug offenders who had received state rehabilitative treatment is superseded by the enactment of section 101(a)(48)(A), which gives no effect to state rehabilitative actions in immigration proceedings. Matter of Manrique, supra, superseded. (5) An alien, who has had his guilty plea to the offense of possession of a controlled substance vacated and his case dismissed upon termination of his probation pursuant to section 19- 2604(1) of the Idaho Code, is considered to have a conviction for immigration purposes. Conviction Without Sentence The statutory definition of conviction, for immigration purposes, requires that the court must have ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A)(2010). As the Second, Third and Fifth Circuits have held, a formal judgment of guilt requires that the court must set forth the plea, the jury verdict or the court’s findings, the adjudication, and the sentence. Singh v. Holder, 568 F.3d 525, 530 (5th Cir. 2009)

Matter of Mogtabi Hassan AZRAG, 28 I&N Dec. 784 (BIA 2024) February 23, 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 will full force and effect. Full Decision.

18 U.S.C. §16. Crime of violence definedThe term “crime of violence” means- (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 18 USC 16: Crime of violence defined A person has been convicted of an aggravated felony if the conviction is for a “crime of violence” and the sentence is at least on year. See INA § 101(a)(43)(F). The definition of “crime of violence” is, in turn, defined by 18 U.S.C. § 16. Aggravated felonies constitute both a ground of deportability and a bar to several forms of relief in removal proceedings See, e.g., INA §§ 237(a)(2)(A)(iii); 240A(a). The first subsection of the crime of violence definition at 18 U.S.C. § 16(a) provides that “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another” is a deportable offense if the sentence is at least one year. The second subsection states that a crime of violence includes “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force may be used in the course of committing the offense.” 18 U.S.C. § 16(b). This section swept in offenses that involved no violent force, such a burglary or evading the police. The Supreme Court had previously held that a similar statute was unconstitutional in Johnson v. United States, 135 S. Ct. 2551 (2015). In Sessions v. Dimaya SCOTUS issued a decision on April 17, 2018, holding that the second clause of the definition of “crime of violence” as used in the definition of an aggravated felony is unconstitutionally void for vagueness.

STEP 1 Identify the “Generic” Definition of the Removal Ground The grounds of inadmissibility and deportability (which include the definition of an aggravated felony) contain dozens of terms describing crimes, e.g., “crime involving moral turpitude,” “crime of child abuse,” “law…relating to a controlled substance,” “crime of violence,” “burglary,” etc. Each of these terms must have a technical, federal definition, referred to as the “generic” definition. Our first research task is to identify the generic definition of the term that appears in the removal ground with which we are concerned. Federal court or Board of Immigration Appeals case law may define a general term; checking secondary sources can save research time. Some removal grounds reference a federal statute as the definition, in which case we look to federal cases interpreting that statute. The Supreme Court reviewed possible sources for definitions, including the Model Penal Code, common law, and the law of several states, and finally decided that generic burglary contains these elements: “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” The Court found that the term “building or other structure” does not include a vehicle. Taylor v. United States, 495 U.S. 575, 598 (1990) (emphasis added). Note on subsequent expansion of the definition of burglary. Almost thirty years after Taylor, the Supreme Court revisited this generic definition and held that it includes burglary of a vehicle that is “adapted or customarily used for lodging.” United States v. Stitt, 139 S.Ct. 399 (2018). The Court reviewed its prior decisions on burglary, in Taylor, Mathis, etc., and found that that particular issue had not been presented, and the prior decisions did not conflict with it. Because the new definition does not affect those prior decisions, we will not discuss it further as part of this example. Identify the minimum conduct prosecuted that violates the statute of conviction Using the text of the statute of conviction, state case law, or other materials, we identify the minimum conduct required to violate the statute of which our client was convicted. Court decisions may refer to this as the “minimum conduct,” “least acts criminalized,” or “least adjudicated elements.” Remember that we are focusing solely on the minimum conduct that can be or has been prosecuted under the statute, and “ignoring the particular facts of the case.” Mathis, 136 S.Ct. at 2248. The Supreme Court has cautioned that an immigrant may not simply imagine some theoretical, possible minimum conduct for an offense, but must demonstrate a “realistic probability” that this minimum conduct actually would be prosecuted under the statute. One may prove this by producing one or more cases where someone was found guilty under the statute for committing the particular minimum conduct. One can cite to published or unpublished decisions, their own case, or arguably other materials such as documents from criminal prosecutions or press releases or newspaper articles, that document conviction for non-generic conduct. For further discussion of the realistic probability of prosecution, see Part II, below, and see online practice advisories. One excellent source of information about a state statute’s minimum conduct is the relevant state jury instruction for the offense. Do an internet search, or work with a criminal defense attorney, to find the instructions. The instructions also may cite to state precedential cases, which are the best authority. In addition to cases, many circuit courts of appeals have held that an immigrant can demonstrate that a statute is overbroad if the express language of the statute includes conduct that is outside of the generic federal definition. In circuits that have adopted this rule, sometimes referred to as the “express language rule,” no cases or other realistic probability proof is necessary. The BIA and just a few circuit courts of appeals have declined to adopt the express language rule. See Part II, below. In those jurisdictions, even if the statute describes a specific minimum conduct, the immigrant may need to provide a further showing of realistic probability of prosecution. Is the crime of conviction defined more broadly than the generic definition? Here is where we compare the elements of the generic definition with the elements of the client’s conviction. If the generic definition contains all of the elements of the criminal statute, there is a categorical match. Another way to state the test is to say that if there is some way to commit the state offense that would not also commit the generic definition, then there is no categorical match. If there is a categorical match, the removal ground will apply to every conviction under the statute. The client loses and our analysis is over. If there is no categorical match, then the statute as whole is overbroad, meaning it reaches conduct not reached by the generic definition. In that case the immigrant will win everything, unless the statute is divisible. We go to Step 2 to determine divisibility. STEP 2 Is the Criminal Statute Divisible? This step may appear complex, but stay with it until the example. In Mathis, the Supreme Court affirmed a strict test for when a criminal statute is divisible. The statute must meet all of these criteria: The jury unanimity requirement is a new concept to many immigration advocates, and state law is not always clear as to whether statutory alternatives are means (no juror unanimity requirement) or elements (juror unanimity requirement). In Mathis, the Supreme Court provided instructions on how to determine whether these statutory phrases are elements or means. The Court identified the following sources (see Mathis, 136 S. Ct. at 2256-2257): State case law. As was the case in Mathis, sometimes there are state cases that rule on whether statutory alternatives have a juror unanimity requirement. You can find these cases through ordinary state law research tools. State model criminal jury instructions, often available on state court system websites, may provide case citations that speak to the juror unanimity question, and thus can be a good place to start research. However, in