Do criminal arrests have to be disclosed in immigration proceedings?

In my Consulta Migratoria® column this week, I answer a question from a reader with a previous arrest and now wishes to file a petition to cancel the conditions of residency.

Each case is different and the answers vary depending on each person's immigration history.

Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before starting any procedure.

This is the column:

I am married to a U.S. citizen and have a two-year conditional residency.

I was arrested for marijuana possession 11 months ago. I didn't have to go to court because they let me enter a program to clear my record for that offense. I spent 90 days on probation and paid a fine. I have a certificate that says I am clean of this crime.

I did not tell my wife because she is from a conservative family and I am afraid of her reaction. Recently, we went with our lawyer to do the paperwork to renew my residency. When the lawyer asked if I had ever been arrested, my wife said no, not knowing that I had.

I am afraid to ask our lawyer about this, because she is a friend of my wife's and I don't want her to know. I feel very ashamed about what happened to me and that's why I solved everything myself without telling anyone.

This is the only problem I have had. Should I disclose what happened to my wife and include it in my residency renewal application? -Javier O.

Javier, you must be honest with your spouse, the immigration attorney, and the federal government. If you don't, you could be jeopardizing your marriage and your immigration status.

If you and your spouse are completing the Form I-751, Petition for Cancellation of Conditions on Residency to send to the U.S. Citizenship and Immigration Services (USCIS), the form asks several questions, including whether you have ever been arrested, charged, fined or imprisoned for breaking or violating any law or ordinance (excluding traffic regulations). You are also asked if you have committed any crime for which you have not been arrested - either in the United States or abroad.

You must always tell the truth on immigration documents. When you sign the petition, the document tells you that you are swearing under penalty of perjury that all the information included in the form and the supporting evidence that is submitted is true.

Keep in mind that this immigration process requires you to give your biometric data (photo and fingerprints) to USCIS so that they can investigate if you have any criminal record, and it would appear that you were arrested and lied about it on the form. This could jeopardize your immigration status.

By hiding what happened to you and allowing your wife to sign the form, you would also be exposing your wife to legal problems.

I understand that it will be difficult to tell your wife what happened, but you should inform your wife and the immigration attorney immediately that you were arrested for marijuana possession. You will need to give your attorney all the documents related to your criminal case, including the police report, the charging document in your case, and the criminal court ruling. She will review all the documentation to determine if there are immigration consequences for your criminal arrest and if you are eligible to file Form I-751.