New York University Public Law and Legal Theory Working Papers

Document Type



Fordham J of International Law, forthcoming


As the revolution in information technology has made individual criminal history records more comprehensive, efficient and retrievable, an individual’s criminal history has become increasingly significant, triggering a broad and severe range of collateral consequences. 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 a 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 about whether we screen for criminal records in order to protect the public safety or as a way to mark those with criminal records as somehow less deserving of immigration rights and benefits. This article details and compares the ways that the United States and the European Union use criminal records (including both conviction records and, in the U.S., some arrest records) for immigration purposes. The article also outlines guidance for policymakers in both jurisdictions.

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