Invisible records started talking to me
DOJ Criminal Records DHS Shared Executive Order and New Variables in Immigration Vetting
When the Internal Revenue Service (IRS) and Immigration and Customs Enforcement (ICE) signed a taxpayer information sharing memorandum of understanding (MOU) in April 2025, there was considerable tension in the immigrant community. The fact that personal information submitted for tax returns could be used for immigration enforcement was a seeds of anxiety for legal residents as well. Ten months later, on February 6, 2026, President Trump signed another information sharing executive order, this time with the Department of Justice (DOJ) rather than the IRS. Executive Order 14385, formally titled “Protecting the National Security and Welfare of the United States from Criminal Actors and Other Threats to Public Safety,” directs the DOJ to provide the Department of Homeland Security (DHS) with as much criminal history record information (CHRI) as possible.
While tax information from the Internal Revenue Service tells us who lives where and how much they make, criminal record information from the Department of Justice tells us who has been arrested, when and where, and what they were charged with. The immigration judge's eyes have moved from your wallet to your criminal record.
Structure and scope of Executive Order 14385
“Changes in the law begin quietly and spread silently.”
The Executive Order, signed on February 6, 2026, and published in the Federal Register on February 11, 2026, directs two main things. First, the Attorney General must make criminal history record information (CHRI) held by or accessible to the Department of Justice available to DHS for screening and vetting purposes ‘to the maximum extent permitted by law.’ Second, the Secretary of DHS may exchange CHRI with immigration authorities of Visa Waiver Program (VWP) participating countries, Preventing and Combating Serious Crime Agreement (PCSA) signatories, and other trusted allies.
The key here is the scope of the CHRI. Criminal history record information maintained by the FBI, part of the Department of Justice, includes arrest, detention, indictment, indictment, pretrial proceedings, trial, and all dispositions of those charges. Dispositions include not only convictions, but also dismissals, acquittals, sentences, probation, and parole. In other words, if you were arrested but not charged, or charged but dismissed, it's all in the record, and it's all in the record that gets turned over to DHS.
However, the order does not direct the collection of new information, but rather expands the sharing of records that already exist. The FBI's National Crime Information Center (NCIC) and Interstate Identification Index already contain tens of millions of criminal records. The problem is that DHS previously had limited access to this data, and now that barrier has been lowered. The recurring phrase ‘to the fullest extent permitted by law" in the order's wording signals a willingness to interpret existing restrictions as broadly as possible.
IRS then DOJ, cascading information sharing
“When one door opens, the next one opens more easily.”
To understand Executive Order 14385, it's important to look at its immediate precedent. On April 7, 2025, Treasury Secretary Scott Bessent and DHS Secretary Kristi Noem signed the IRS-ICE Taxpayer Information Sharing Memorandum of Understanding, which allows ICE to obtain the names, addresses, and tax information of individuals who have a final order of removal or are the subject of a federal criminal investigation. In early 2025, it was revealed in a lawsuit that ICE had requested more than 1 million records from the IRS.
There was also pushback from within the IRS. The IRS General Counsel warned that the agreement would likely violate taxpayer privacy laws, and IRS Acting Commissioner Melanie Krause resigned in protest of the agreement. In November 2025, a federal judge issued an injunction pausing the IRS-DHS record sharing, but in February 2026, the D.C. Circuit Court of Appeals ruled to uphold the policy, and the information sharing continues.
This is where Executive Order 14385 comes into play: while IRS data sharing gives DHS a record of an immigrant's economic activity, DOJ data sharing gives DHS a record of an immigrant's criminal history. When the two streams merge, DHS is in a position to look at both financial status and criminal records for a given immigration applicant. Each is partial information, but when combined, they form a highly detailed personal profile.
Wide gap between arrest and conviction
“History doesn't have context.”
To understand the practical impact of this executive order, it's important to understand how criminal records are treated in U.S. immigration law. Section 212(a)(2) of the Immigration and Nationality Act (INA) makes aliens inadmissible if they have been convicted of a Crime Involving Moral Turpitude (CIMT). Crimes of moral turpitude include a relatively broad range of offenses, including theft, fraud, and assault. However, there is an exception for a single petty offense. This petty offense exception only applies if the maximum sentence is one year or less and the actual sentence is six months or less.
The problem arises in the gap between an arrest and a conviction. While immigration law requires a conviction for most offenses, arrest records themselves are not ignored in immigration adjudication. The Application for Naturalization (N-400) requires disclosure of all arrest records, not just convictions. Even if the charges were dismissed or the record expunged, this must be reported, and failure to do so can be considered false testimony, which in itself can be a moral turpitude ground.
You should also be aware of the effect of criminal record expungements for immigration purposes. Even if a conviction is expunged in state court, it's still treated as a conviction for immigration purposes. This is because federal immigration law does not recognize record expungements under state rehabilitative statutes.
In the case of driving under the influence (DUI), which is relatively common in the Korean-American community, a single DUI conviction by itself is not classified as a crime of moral turpitude and is not grounds for immediate deportation. However, it can be a negative factor in the determination of good moral character in a citizenship proceeding, and if two or more DUI convictions are within the time period under review, a rebuttable presumption of moral turpitude is created, which requires substantial evidence to overcome (Matter of Castillo-Perez, A.G. 2019). The situation is even more serious in cases involving DUIs or accidents where drugs are involved. Shoplifting is a crime of moral turpitude because it involves intent to steal, and even a single conviction can be grounds for inadmissibility or deportation unless it falls under a minor offense exception.
Changes in morality screening standards and real-world risks
“The same record changes meaning when read by different eyes.”
The impact of expanded criminal record sharing is compounded by the August 15, 2025, USCIS policy memorandum (PM-602-0188) announcing changes to the moral character test. This policy memo announces a shift in the evaluation of citizenship applicants‘ Good Moral Character (GMC) from a traditional checklist approach to a ’holistic evaluation" approach.
Under the new standard, immigration officers are instructed to evaluate an applicant's overall behavior, rather than simply checking for the presence of a criminal record. Positive factors such as community contributions, family support, and tax history will be considered, but so will ‘conduct inconsistent with civic responsibility,’ even if the applicant is not legally guilty. It states that repeated traffic violations, harassment, and aggressive behavior can also be the basis for a moral judgment.
This change, combined with Executive Order 14385, makes the following scenario a reality Mr. A, a permanent resident, applies for citizenship. Previously, USCIS adjudicators relied primarily on the applicant's self-declaration and FBI fingerprint checks to verify Mr. A's criminal history. Now, with the Department of Justice's criminal history database being opened directly to DHS, adjudicators will be able to look at past arrests that the applicant may not have disclosed or may have forgotten about. A police report from a domestic dispute a decade ago that resulted in an arrest but charges were dropped, a citation for a workplace violation, or a criminal summons after an old car accident could all come to light during the vetting process.
Regulatory violations are often overlooked, especially among Korean American business owners. While violations of liquor licenses, sanitation violations, and operating without a permit rarely lead to criminal prosecution, they can result in arrests or citations, and it's up to the discretion of the adjudicator as to how those records will be evaluated under the new moral standards. The same is true for arrest records stemming from domestic disputes. In Korean-American households, it is not uncommon for a domestic dispute that is not domestic violence to result in a neighbor's call to the police and an arrest, and even if the charges are dismissed in most cases, the arrest record itself remains in the FBI's database.
Closing remarks
Executive Order 14385 doesn't create new crimes or change the language of immigration law; it simply widens the channels through which records already in existence flow to the agencies that already have them. But in immigration vetting, the amount of information determines the depth of vetting. Old arrest records that may not have previously come up in an FBI fingerprint check, minor records that were previously kept only at the state level, will now be in the hands of DHS at the federal level.
For anyone preparing to apply for immigration, the most practical first step right now is to check your own records: you can file a Freedom of Information Act (FOIA) request with USCIS to see your immigration file (A-file), and you can request an FBI Identity History Summary to see your criminal record with the FBI. This is important because there may still be records from your past that you don't remember or thought were resolved.
The citizenship application, Form N-400, requires you to disclose all arrests - it doesn't matter if the charges were dismissed or if the record was expunged - omitting them is considered a false statement, which in itself is a moral turpitude. Rather than hiding your record, the reasonable response is to identify it and prepare an explanation for it. If your past arrests ended in dismissal, it's helpful to have a certificate of dismissal, and if there were convictions, to have evidence of your subsequent rehabilitation and contribution to society.
From IRS information sharing to Department of Justice criminal records, barriers to information between federal agencies are rapidly coming down. Executive Order 14385 takes this a step further by allowing the exchange of criminal records with foreign governments, which could impact travelers and immigrants from Visa Waiver Program (VWP) participating countries. How this change will specifically impact individual immigration cases remains to be seen as practice accumulates. What is certain is that immigration officers will have more information to look at, and applicants will need to be on top of their records beyond what they can see.
Disclaimer: This column is for general information purposes only and is not legal advice for your specific case. You should always consult with an attorney who specializes in immigration law for your individual case.
Law Offices of Jin Dong Cho
NEW YORK OFFICE (Flushing) 35-24 154th Street, Flushing, NY 11354
(t) 718-353-2699 (f) 718-353-8132
NEW JERSEY OFFICE 560 Sylvan Avenue, 3Fl., Englewood Cliffs, NJ 07632
(t) 201-449-0009
