Naturalization After Conviction.

In general, a criminal conviction does not automatically disqualify an alien or permanently bar them from naturalization. Instead, the conviction’s immigration definition, timing, sentence, the underlying conduct involved, whether the alien discloses the conviction, and potentially other mitigating or aggravating factors can all play a role in determining both naturalization eligibility and removal risk.

Eligibility for Naturalization

INA §§ 316(a) and 101(f) establish “good moral character” as a requirement for naturalization. While the statutes describe the alien’s conduct within the statutory period immediately preceding the filing of the Form N-400, USCIS may consider the alien’s conduct pre-dating the statutory period as well.

USCIS assesses whether an alien meets the statutory requirements (including good moral character) throughout the naturalization process, including through the oath ceremony. At each step, USCIS examines the alien’s conduct, including that resulting in a criminal conviction, to ensure that the alien meets the applicable statutory standard.

There are some exceptions, however. An alien who has been convicted of murder will never meet the statutory standard of good moral character, regardless of how long ago the alien’s conviction was. Similarly, any alien convicted of an “aggravated felony” on or after November 29, 1990, is permanently barred from naturalization.

Risk of Removal

As discussed above, a criminal conviction can trigger removal proceedings. An alien’s risk of removal depends on the circumstances involved, including the conviction’s immigration definition, the alien’s current immigration status, and potentially various mitigating and aggravating factors.

How Does Immigration Law Classify the Offense and Sentence?

If a criminal conviction bars naturalization, then federal immigration law will call the offense an aggravated felony, a crime involving moral turpitude, or another statutory ground. INA § 101(a)(43) defines the scope of the aggravated-felony bar to naturalization that is imposed in INA § 101(f)(8), and not state terminology will apply to naturalization bars. A sentence-imposed condition or order, whether written, may determine whether a crime involving theft, a crime involving violence, or certain types of financial offenses qualify as aggravated felonies. For example, a court’s ruling regarding whether the alien intentionally caused bodily injury can trigger a violence-related naturalization bar.

The following examples illustrate how a criminal conviction may qualify as an aggravated felony under INA § 101(a)(43):

• The underlying conviction’s immigration classification can differ from its state or local classification. A state misdemeanor can satisfy a federal aggravated-felony definition for the purposes of naturalization.
• Whether probation is imposed alone does not determine if an offense is an aggravated felony. INA § 101(a)(43)(G), which covers certain theft or burglary offenses, applies when the term of imprisonment is at least one year, and a suspended term of imprisonment may still count as the sentence imposed.

These are just two examples; the analysis of whether a criminal conviction bars naturalization is often complex and requires a holistic approach.

Did the Alien’s Conduct Pre-Date the Statutory Period?

A common misconception about the aggravated-felony bar is that it only applies if the conviction occurred during the relevant statutory period. However, INA § 101(f)(8) provides the aggravated-felony bar to naturalization is imposed when an alien has, “at any time,” been convicted of an aggravated felony. If a criminal conviction is an aggravated felony for federal immigration purposes, it may bar the alien from naturalizing regardless of the time between the offense and the Naturalization interview.

Spodek Law Group takes federal matters nationwide, coast to coast, and runs a fully online client portal so a case can be handled from anywhere.

Which Convictions and Conduct Can Defeat the Good Moral Character Requirement?

While INA § 101(f) applies broadly and provides for a general statutory bar to naturalization, some specific statutory exceptions may keep an alien eligible. As discussed, INA § 101(f)(1) addresses murder, and INA § 101(f)(8) addresses aggravated-felony convictions; INA § 101(f)(3), through INA § 212(a)(2), addresses certain crimes involving moral turpitude, multiple convictions with aggregate sentences of five years or more, and controlled-substance violations, while the petty-offense exception appears in INA § 212(a)(2)(A)(ii)(II). Here is more in-depth information about how those provisions affect eligibility:

• The petty-offense exception only applies if the alien: (i) is convicted of not more than one crime involving moral turpitude (CIMT), (ii) the punishment for the CIMT’s underlying offense shall not exceed one year in the U.S., and (iii) the alien’s sentence was no more than six months of imprisonment.
• A person convicted of two CIMTs cannot qualify for the petty-offense exception. If the underlying crimes arise from separate schemes, then the alien must be analyzed for the statutory moral-character bar as provided under INA § 101(f)(2).
• INA § 101(f)(3) incorporates criminal conduct involving controlled substances into the statutory analysis for good moral character. If the conduct involves the cultivation, production, distribution, or sale of marijuana or another unlawful drug during the statutory period, then an alien generally cannot establish good moral character for naturalization.
• There is a statutory exception to INA § 101(f)(3). Under the marijuana exception, an alien who is “(except as such paragraph relates to a single offense of simple possession of 30 grams or less of marihuana), if the offense described therein, for which such person was convicted or of which he admits the commission, was committed during such period” is still eligible to prove good moral character for the purposes of naturalization.
• If an alien has two or more offenses during the statutory period for which the combined, imposed sentence was 5 years or more, then the alien is ineligible for naturalization as provided under INA § 101(f).

What Must You Disclose When the Records Were Dismissed, Sealed, or Vacated?

Generally, an arrest alone cannot support a naturalization denial because arrests do not establish criminal culpability for the purposes of federal immigration law. However, USCIS may consider an alien’s arrest if the evidence supports a finding of “bad moral character” based on the alien’s underlying conduct. USCIS can rely on an alien’s arrest in conjunction with other evidence that would support a finding of “bad moral character” in other cases.

• When will USCIS consider my arrest?
• Will my arrest affect my naturalization application?
• Do I need to disclose a dismissal in my naturalization application?

The Form N-400 is titled “Application for Naturalization.” When responding to the form’s questions regarding arrests, citations, or detentions, an alien must truthfully disclose all such matters, regardless of whether the charges were dropped, dismissed, or vacated. For example, while a citation may not lead to removal or impact naturalization eligibility, it will impact eligibility if an applicant’s lack of candor results in a finding of bad moral character.

The Form N-400 explicitly requires applicants to disclose their records even if they were expunged or sealed. With some exceptions, if a record was expunged or sealed for a non-substantive reason, then the record may still satisfy the definition of a conviction. For example, a state’s decision to expunge or seal an alien’s record upon the alien’s admission of guilt or upon payment of a fine does not preclude the conviction from being classified as an immigration-law conviction. Under these circumstances, the record remains subject to review, and an alien’s failure to disclose such a record can be construed as fraud in the eyes of the U.S. government.

• Does an expungement or sealing prevent the record from being considered for naturalization?
• When should I not disclose my expungement or sealed record to USCIS?
• Do I need to disclose a deferred adjudication on my naturalization application?

When is Naturalization Worth the Risk, and How Can You Challenge a Denial?

When considering whether naturalizing worth the risk, consider how long of a continuous residence period is required, the alien’s qualifying citizenship or immigration status, and the alien’s physical presence in the United States.

• How long should you have been a permanent resident to apply for naturalization?

For the purposes of naturalization, applicants must have had a continuous residence in the U.S. for at least five years. While this is a general rule, those who are married to U.S. citizens who qualify under INA § 319(a) generally have a shorter three-year residence period.

• How long should you be physically present in the United States to apply for naturalization?

Generally, to be physically present in the U.S. for the requisite three or five years, an applicant must be physically present in the U.S. for at least half of those years (30 months for the 5-year requirement, 18 months for the 3-year requirement). Even if an applicant is physically present in the United States, there are circumstances under which their presence may be denied. When considering this, it is important to have a clear understanding of your situation to make informed decisions.

• When is the best time to file for naturalization?

The Form N-400 “Application for Naturalization” can be filed as soon as 90 days before an applicant meets the eligibility requirements. In many cases, this is the most desirable filing strategy because it allows the applicant to be within the jurisdiction of the Department of Homeland Security while taking full advantage of the law’s protections.

• Can I file my application without disclosing a record that may lead to removal proceedings?
• When is naturalizing considered too risky for the alien?
• What constitutes bad moral character for a naturalization denial?
• What is the penalty for an immigration-related conviction when applying for naturalization?
• How do you challenge naturalization denials related to criminal offenses?
• What is a “criminal alien”?
• How can an attorney help with a naturalization application?

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 888 348 8028 to speak with our team.