By Parviz Malakouti-Fitzgerald, Esq.
Everyone makes mistakes.
If your brush with the law in California has resulted in a conviction, you’ll want to get that conviction “cleared” from your record as soon as possible. This is especially the case if you are an American hoping to pursue second citizenship or residency in another country.
In this article, by “cleared”, we mean a) getting an expungement, and b) getting both your California Department of Justice ("CalDOJ") background check updated and your FBI Identity History Summary (“IdHS”) updated as well.
Unfortunately, contrary to popular misconception, a California conviction that is expunged will not be eliminated from an FBI background check, a crucial document for Americans applying for second citizenship. This means the conviction will not be wiped away from the FBI background check as if it never happened. Instead, your goal will be to have your FBI background check updated to reflect the expungement.
Article Outline:
This article specifically addresses American citizens with a criminal record in California who are looking to expunge their conviction to aid in an application for second or third citizenship outside of the United States.
Expunge the California Conviction
The first step to clearing the California conviction is to apply for an expungement. In California, an expungement is a dismissal pursuant to California Penal Code § 1203.4. As we’ve discussed here on Malakouti Law, a California expungement does not "eliminate” or “remove” the effect of a conviction for U.S. immigration purposes, but in some scenarios, such as a DACA recipient with a DUI conviction, an expungement can help an immigration situation.
Once the expungement is successfully obtained, you can proceed to the next step.
Update the California DOJ Report (“CalDOJ”)
In an ideal world, California expungements would be automatically reported to the California DOJ, and the California DOJ would update its criminal record report on you, automatically.
But we don’t live in an ideal world, so oftentimes the CalDOJ needs to be prodded to update their report. To do that, you must first order your own CalDOJ report, then submit a BCIA 8706 - Claim of Alleged Inaccuracy or Incompleteness form, along with supporting documentation (like a dismissal).
Note: The BCIA 8706 form to challenge your CalDOJ record is included with your CalDOJ report when you receive your results.
The California DOJ report is important to you as an aspiring dual citizen because the CalDOJ reports their criminal record information on you to the FBI Criminal Justice Information Services (“CJIS”). The FBI CJIS, in turn, is the entity that generates your FBI report which you (usually) submit with your second citizenship application, whether it be St. Kitts, Slovakia, Portugal or many other countries.
Is your head spinning yet?
For criminal record updates related to an expungement, the information flow looks like this:
California Court —> CalDOJ —> FBI CJIS.
To understand how state-level criminal record repositories like the CalDOJ interact with the FBI, you can read our Basics of the FBI Background Check explainer. In the alternative, you can skip the reading and book a consultation with Malakouti Law straight away.
Update the FBI Identity History Summary
As mentioned earlier, the FBI IdHS relies on state-level criminal record repositories (a fancy word for “storehouse”). Once your CalDOJ record is updated to reflect your expungement, you want to make sure the CalDOJ has communicated the same information to the FBI CJIS.
At this point, you may need to request your FBI background check to inspect it and see if it reflects the expungement, as your CalDOJ report should. If not, you can request CalDOJ update the FBI CJIS by making a challenge, with the same BCIA 8706 - Claim of Alleged Inaccuracy or Incompleteness form mentioned above.
The ultimate goal is to have the FBI background check show that your conviction was eventually dismissed pursuant to your expungement. The whole process from starting the expungement to having your FBI background check updated accordingly can take six months or longer.
From FD-258 used to get fingerprints for an FBI background check
Step-by-Step Process
Step 1 Find Out if You’re Eligible for Expungement
Step 2 Get the Expungement
Step 3 Request Your California DOJ Report
Step 4 Challenge Your California DOJ Report (If Necessary)
Step 5 Request Your FBI History Summary (Background Check)
Step 6 Update Your FBI History Summary (If Necessary)
Step 7 Apply for 2nd Citizenship Utilizing Strategies for Americans Pursuing Second Citizenship
Request a Consultation with Malakouti Law
With a criminal record, there are no guarantees for second citizenship, but with the guidance of an expert, you may have a fighting chance.
Request a consultation with Malakouti Law here.
Each immigration and citizenship case is particular and you should consult with a qualified immigration and citizenship lawyer about your case before taking any steps. The Law Office of Parviz Malakouti does not guarantee the accuracy of information presented nor assume responsibility for actions taken in reliance of this information. The information in this page could become outdated. Attorney marketing.