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Keywords

Criminal Record; Immigration; EU; European Union; US; United States

Abstract

Because the revolution in information technology has made individual criminal history records more comprehensive, efficient, and retrievable, an individual’s criminal history has become an ever more crucial marker of character and public identity. The broad range of collateral consequences of criminal convictions has become a very salient issue for criminal justice scholars and reformers. A single criminal conviction can trigger thousands of potentially applicable restrictions, penalties, or other civil disabilities. There is no better example of this phenomenon than immigration law and policy, where developments in data storage and retrieval converge with opposition to immigration, especially to immigrants who bear a criminal stigma. In debates in the United States over immigration reforms, even those politicians and legislators who advocate more liberal immigration policies generally concede the desirability of excluding those with serious criminal records from eligibility for new benefits or status. In the European Union, by contrast, although a criminal record may impact an individual’s ability to travel to or reside in an European Union country, it is not as readily dispositive of immigration outcomes. As immigration policy evolves on both sides of the Atlantic, a key question for policymakers is whether excluding persons with criminal convictions is justifiable on grounds of public safety or as a criterion for preferring some visitors and immigrants over others. Aliens seek entrance to a foreign country for three (legal) purposes: permanent residency and citizenship (immigrants); temporary visiting (persons traveling for family reasons, tourism, educational purposes, or temporary work); and refugee status (persons fleeing persecution). For the United States, at least, criminality in a foreigner’s home country is relevant to obtaining a visa to enter this country. In both the United States and the European Union, a foreigner’s criminality in the host country can have fateful consequences for being allowed to remain. This Article compares the ways that the United States and the European Union use criminal records (including both conviction records and, in the United States, some arrest records) for immigration purposes. Toward this end, because US immigration policies are exclusively governed by federal laws, regulations, and executive orders, the United States is treated as a single entity. The European situation is more complicated. Understanding the effect of criminal records on immigration requires attention to the laws and policies of both the European Union and individual Member States. Part I documents the ways that criminal records are used in making immigration determinations in the United States. Part II analyzes the role that criminal records play in regulating immigration into (and within) the European Union. Part III concludes with guidance for policymakers in both jurisdictions.

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