Can you be deported for a nolle prosequi criminal disposition?
As an immigration lawyer based in Boston, Massachusetts with expertise in deportation defense in Immigration Court, I often meet with immigrants who are confused as to the immigration consequences of their criminal dispositions. One of the frequent questions I get is related to a nolle prosequi disposition.
Immigration laws take a unique view of the definition of conviction. Consequently, U.S. Citizenship and Immigration Services (USCIS) or an Immigration Judge might consider your criminal case to be a conviction even though, when you went to District Court, the judge told you that your criminal case would be dismissed.
What is a nolle prosequi disposition under Massachusetts criminal law
Under Massachusetts Criminal Procedure, a prosecuting lawyer may request a nolle prosequi disposition at any time before sentencing. If granted, the nolle prosequi disposition means that criminal charges are, in effect, dropped or dismissed.
Why nolle prosequi is not considered a conviction for immigration purposes
A Massachusetts nolle prosequi disposition is not a conviction for immigration purpose because in order for a disposition to be considered a conviction, it must contain both (1) a finding of guilt, a plea of guilt of the equivalent; and (2) a penalty, punishment or restraint on liberty. With nolle prosequi, no sentence is imposed and so it is a criminal disposition that wouldn't be classified as a conviction under US immigration law.
A nolle prosequi disposition must be disclosed on all immigration and visa applications even though it isn't a conviction
It is important to remember that even though a nolle prosequi disposition is not viewed as a conviction for immigration purposes, you must still disclose this disposition on all I-485, N-400 and other immigration applications, as well as on all visa applications.
Many immigrants mistakenly believe that because their criminal case was dismissed that it is "off their record, " and they have no duty to disclose it. But this is not so. Again, you absolutely MUST disclose all criminal matters regardless of whether a conviction occurred. But by disclosing that you have a dismissed criminal case, you certainly aren't admitting that you did something wrong. You are just providing an accurate and honest answer to questions on an immigration application.
After disclosing your nolle prosequi disposition, you have one last requirement: And you must provide USCIS or the U.S. Consulate with a court-certified, final criminal disposition to show that the case was indeed resolved with a nolle prosequi entry.
I hope this clarifies the meaning of a nolle prosequi disposition for immigration applicants. If you need further help or representation by an immigration lawyer based in Boston with expertise on deportation and immigration consequences of criminal matters, please call me at 617-722-0005.