In general, the answer to this question will almost always be an emphatic: yes, you should disclose the record even though it has been expunged.
Although expungement laws vary from state to state, generally speaking, when criminal records are expunged they are not actually deleted or destroyed. Instead, they are isolated and/or extracted. This simply means that they are restricted from public view. After expungement, your arrest record will no longer show up when a private background check company runs your arrest record. Thus, private employers, friends, family members, etc., will no longer be able to see your expunged record.
Government law enforcement agencies, on the other hand, will still have access to your criminal records even if they have been expunged. Thus, agencies such as the Transportation Security Administration (TSA), Federal Aviation Administration (FAA), Department of Homeland Security (DHS), and Federal Bureau of Identification (FBI), for example, will most likely still be able to see your expunged records.
Thus, because the TSA likely already knows about your expunged criminal record, it is always best to be honest and forthright throughout the Global Entry application process and to admit to the expunged offense. If you fail to admit to the offense on the basis that it was expunged, TSA will often deny your Global Entry application on the basis that you provided false information. In addition, not only could your Global Entry application be denied for providing false information, but it’s also possible that you could be subject to additional penalties for falsification of records. Although actual prosecution in this scenario would be quite rare (given the fact that TSA would have to prove that you “knowingly and willfully” provided false information), making a false representation in this manner could also result in your being denied any other type of application you may make in the future for any benefit pursuant to U.S. immigration laws.
During the interview process, you can expect to be asked questions about your criminal history. Our advice is that you should assume that your interviewer already knows the answer to every question being asked, and that they are simply testing your truthfulness.
Thus, during your interview your goal should be to demonstrate that you are honest and forthcoming. Although any type of criminal conviction could disqualify you from being eligible for Global Entry, it is still possible that your application could be approved, despite your criminal conviction. In determining whether or not your conviction will bar you, the TSA will consider several factors.
If your offense was dismissed, expunged, minor, or from several years or even decades ago, these mitigating factors should help your case. It is therefore vital that you bring documentary evidence (i.e., court records relating to the offense) to your interview to support any of those facts. Not only will this demonstrate that you are honest and credible, but the additional documentary evidence you provide could mean the difference between your application being granted or denied.
But my lawyer told me that once my record was expunged I would no longer have to disclose it?
Even if the lawyer who represented you on your underlying criminal offense and/or expungement advised you that you would not have to disclose the expunged record in the future, in most cases you should still disclose the arrest. Criminal lawyers and expungement lawyers generally advise their clients that, once their record is expunged, they will no longer have to disclose it. For the most part, this advice is true, especially in the contact of applying for employment in the private sector. There are, however, exceptions to every rule.
As explained above, expungement laws vary by state. Most expungement statutes contain an exception that requires the disclosure of expunged records to law enforcement agencies. New Jersey’s expungement statute, for example, requires disclosure of expunged records to the judicial branch and any law enforcement or corrections agencies. As TSA would be considered a law enforcement agency, disclosure of the expunged record to the TSA would be required pursuant to New Jersey’s expungement law.
In addition, even if your state’s expungement statute could be interpreted as not requiring the disclosure of expunged records even to law enforcement agencies, disclosure is almost always recommended. The federal government is simply under no obligation to honor state laws regarding the expungement of criminal records, the effect of an expungement, or the disclosure of expunged records.
In short, regardless of what your attorney advised you with respect to the effect of an expungement, the bottom line is that TSA has and will continue to deny Global Entry applicants for failing to disclose expunged records.
I disclosed my expunged record and my Global Entry application was denied. Now what?
Unfortunately, despite your candor, your Global Entry application was denied due to your expunged criminal record. It happens. The good news is that you can appeal that decision to the Customs and Border Patrol (CBP) Ombudsman, the TSA enrollment center where your interview was conducted, and/or the DHS Traveler Redress Inquiry Program (TRIP). In your appeal you will want to mention the fact that you were honest and forthright about the offense, a factor that will weigh heavily in the determination as to whether or not you qualify as low-risk status for Global Entry eligibility purposes.
On the other hand, if you were not truthful about your expunged criminal record, your chances on appeal will be significantly lower. Not only does the expunged criminal record stand in your way, but you also provided false information during the application process. From a credibility standpoint, you will have a much harder time convincing the TSA of your low-risk status.