Criminal LawGovernmentImmigration

Residency Requirements, The Background Check

There is a new issue we have come across. According to Immigration Regulations, a requirement to be eligible for residency is to have a clear criminal record for the past ten years. Therefore, people who have been convicted of a crime committed more than ten years ago are eligible for residency, provided they comply with all other requirements.

Due to eligibility requirements, we do not take cases where the applicant has a criminal record within the last ten years. In the few instances where people wind up having a criminal record, we have been able to move forward with the application for residency as long as the record is more than ten years old.

Nevertheless, we have had some cases where the Immigration Department (DGME) inquired about a case where our client shows a record more than ten years old.

As initially noted, the immigration regulations set as statute of limitations of ten years. However, the DGME has adopted the tendency to ignore the statute of limitations. In our practice, we have not had an application being denied due to the existence of a record, but we have certainly been required to clarify the contents of the record which has resulted in significant delays in the processing of cases where the applicant had a record.

It appears the DGME does not discriminate between the different type of violations. They have inquired for instances of DWI, possession of drug paraphernalia, disorderly conduct, larceny, so on and so forth.  When we receive a notice from the DGME regarding this issue we naturally proceed to protect our clients interest by arguing that the DGME cannot violate the statute of limitations, but it comes at a time expense for our clients. The method to argue against the DGME is to file a complaint in Supreme Court which delays the process. In some instances, I have personally reviewed the situation with Richard Calderón, a manager at the DGME, who agrees to move forward with the case, but it still causes massive delays.

While we have not received a denial (yet), the Supreme Court has decided on a few occasions that the DGME has sufficient discretionary powers to override the statute of limitations for matters of national security, but the Supreme Court has failed to define what matters can be considered a threat to national security.  They are leaving it wide open.  A terrorist attack compared to possession of a dobbie, obviously is not the same thing.

I think the position of the Supreme Court is irrational. There is a purpose to set a statute of limitations. Former president Jose Maria Figueres was involved in a corruption case with the French Company Alcatel. He fled the country and stayed in Switzerland for over ten years to allow the statute of limitations to run out. He then returned to the country with no possibility to be prosecuted and ran for president in the primaries a couple of months ago. I wonder why the Supreme Court does not suspend the statute of limitations in that case. Would this be another instance of discrimination against foreigners? Perhaps.

What I can tell you for now is that the DGME is becoming more restrictive with the processing and approval of residencies for people who have a mark in their record. I would not be surprised to receive a denial soon, and therefore will need to change the eligibility requirements for our clients.

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