A Comprehensive Analysis: Renewing a Green Card After Expiration with Criminal Records in New York State

By Brian Figeroux, Esq. 

1. Introduction

For lawful permanent residents (LPRs) in the United States, renewing a green card after it has expired is typically a routine process. However, individuals with criminal records—including arrests without convictions—may face complications, including denial of renewal or placement in deportation proceedings.

This article explores whether someone with a green card should attempt to renew it after expiration if they have a criminal record, particularly within the context of New York State Penal Code. It also identifies red-flag offenses under New York law that could impact renewal eligibility and discusses legal considerations for navigating the process. Read more at www.askthelawyer.us. To read the complete analysis in our publication, click here, and on our immigration blog, click here.

1. The Green Card Renewal Process and Its Legal Challenges
2. Overview of Green Card Renewal

Lawful permanent residents (LPRs) must renew their green cards every 10 years by filing Form I-90 (Application to Replace Permanent Resident Card) with U.S. Citizenship and Immigration Services (USCIS). During this process, applicants must:

• Submit personal information.
• Attend a biometrics appointment for fingerprinting.
• Undergo a criminal background check through FBI databases.

This check will reveal any arrests, charges, or convictions, including expunged or sealed records. If USCIS discovers criminal activity that makes the applicant inadmissible or deportable, the renewal application could be denied, and removal proceedings may begin.

1. Why Criminal Records Complicate Renewal

While immigration law allows certain discretion for past offenses, convictions involving moral turpitude or aggravated felonies can result in:

• Denial of Renewal: The applicant may be deemed inadmissible based on criminal history.
• Deportation Proceedings: Filing for renewal may expose the applicant to immigration authorities, increasing the risk of being placed in removal proceedings.

III. Key Legal Standards for Deportation Risk

1. Crimes Involving Moral Turpitude (CIMTs)

Definition: Crimes involving moral turpitude (CIMTs) refer to acts that gravely violate societal moral standards, such as fraud, theft, or violent crimes.

Impact:

• A single CIMT committed within 5 years of admission and punishable by 1 year or more can lead to deportation.
• Multiple CIMTs at any time may also trigger removal.

Examples under New York State Penal Code:

• Larceny (Theft) – NY Penal Law §155.05.
• Fraudulent Schemes – NY Penal Law §190.65.
• Assault in the Second Degree – NY Penal Law §120.05.

1. Aggravated Felonies

Definition: These are considered the most serious crimes under immigration law and lead to automatic deportation.

Impact: Convictions classified as aggravated felonies under 8 U.S.C. § 1101(a)(43) result in permanent inadmissibility, barring re-entry into the U.S.

Examples under New York Penal Code:

• Drug Trafficking – NY Penal Law §220.39.
• Murder – NY Penal Law §125.25.
• Rape – NY Penal Law §130.35.
• Weapons Trafficking – NY Penal Law §265.03.

1. Controlled Substances Offenses

Even minor drug offenses pose significant immigration risks.

Impact:

• Any drug-related conviction, except a single offense of marijuana possession under 30 grams, can lead to inadmissibility and deportation.
• Arrests or charges—even without conviction—may trigger increased scrutiny during renewal.

Examples in New York Penal Law:

• Criminal Possession of a Controlled Substance – NY Penal Law §220.03.
• Criminal Sale of a Controlled Substance – NY Penal Law §220.31.

1. Arrests Without Convictions: Are They Red Flags?
2. Arrests and Immigration Scrutiny

While arrests without convictions are not automatic grounds for deportation, they raise red flags and may lead to further investigation during green card renewal.

Key Concerns:

• Arrests may signal patterns of behavior inconsistent with good moral character required under immigration law.
• USCIS may request court dispositions and additional evidence to determine whether the arrest indicates criminal activity or reflects moral turpitude.

1. Cases with Dismissed Charges

Even if charges were dismissed, USCIS may examine:

• Whether the arrest points to underlying conduct suggestive of criminal activity.
• Whether the applicant accepted plea bargains that imply guilt for lesser offenses.

1. Legal Defenses and Mitigating Factors
2. Expungement and Sealing of Records

While New York State allows some criminal records to be sealed or expunged, immigration authorities still consider sealed records in renewal applications. Applicants must provide complete disclosures about their criminal histories, regardless of record sealing.

Key Point: Expungement does not erase convictions for immigration purposes.

1. Demonstrating Rehabilitation

Applicants can strengthen their cases by demonstrating good moral character through:

• Evidence of rehabilitation programs or community service.
• Letters of recommendation from employers or community leaders.
• Evidence of employment stability and family ties.

1. Case Studies of Denial and Deportation Risks

Case 1: Domestic Violence Arrest with No Conviction

Scenario: An LPR is arrested under NY Penal Law §120.00 (Assault in the Third Degree), but charges are later dropped.

Outcome: USCIS may investigate the circumstances, potentially delaying renewal and requesting proof of character rehabilitation.

Case 2: DUI Conviction

Scenario: An LPR convicted under NY Penal Law §1192.3 (Driving While Intoxicated) files for renewal.

Outcome: While a single DUI does not automatically result in denial, repeated offenses may suggest habitual alcohol abuse, raising moral character concerns.

Case 3: Drug Possession

Scenario: An LPR convicted under NY Penal Law §220.03 (Criminal Possession of a Controlled Substance) for carrying heroin.

Outcome: USCIS could deny renewal and initiate deportation proceedings due to violations of controlled substances laws.

VII. Recommendations and Next Steps

1. Consult an Immigration Attorney: Before filing a renewal application, individuals with criminal records should seek legal counsel to evaluate risks and develop defenses.
2. Gather Documentation: Collect certified court records, proof of rehabilitation, and any evidence supporting good moral character.
3. File a Waiver Application (if eligible): In some cases, applicants may request a waiver of inadmissibility using Form I-601 or I-212 to overcome past offenses.
4. Avoid Travel Abroad During Processing: Traveling internationally with a pending renewal and a criminal record may complicate re-entry into the U.S.
5. Maintain Compliance with Probation and Parole Conditions: Strict adherence to court-ordered conditions can demonstrate rehabilitation and mitigate risks.

VIII. Conclusion

Renewing a green card after expiration can be risky for individuals with criminal records, particularly under New York State Penal Code. Arrests, charges, and convictions related to moral turpitude, drug offenses, and aggravated felonies often trigger scrutiny, denial, and even deportation proceedings.

Given these complexities, applicants should weigh the risks carefully, consult immigration attorneys, and take proactive steps to strengthen their cases before filing for renewal.

By navigating these challenges strategically, individuals can improve their chances of maintaining lawful permanent residency and avoiding removal from the United States.