If you are a permanent resident seeking US citizenship,your N-400 citizenship applicationwill require you to reveal whether you have ever been arrested for, charged with or convicted of a crime. It’s obviously not good news if you have been convicted of a crime. But will a criminal conviction doom your citizenship application, given that “good moral character” is required for citizenship? The short answer is the least satisfying one — it depends.
More specifically, it depends on the nature of the crime, how long ago it was committed, how old you were when you committed it, and how the crime fits into an overall picture of your moral character. In some cases, the crime won’t affect your application. On the other end of the spectrum, some crimes can not only result in the denial of your application but can also cause you to be deported.
What Constitutes a “Conviction” of a Crime?
Some states offer diversion programs, etc., that are designed to allow first-time offenders to escape being burdened with a formal criminal record. So what does it mean to be “convicted” of a crime for immigration purposes? US immigration law applies a broad definition — you have been “convicted” of a crime if:
- A judge or a jury finds you guilty;
- You pleaded guilty or “no contest” to the offense;
- You confess to the crime or admit to certain facts which, if proven, would prove you guilty of the offense;
- You received a suspended sentence; or
- The court orders some restraint upon your liberty (it requires you to check into a halfway house, for example).
What is an “Automatic Bar”?
No, it doesn’t mean that the USCIS is going to buy you a bottle of champagne to celebrate your application for citizenship.
If an automatic bar applies, it means that the USCIS has no discretion to approve your citizenship application — it is required by law to reject it. Two kinds of automatic bars exist — permanent bars and temporary bars.
Crimes that Result in a Permanent Automatic Bar to Citizenship
Two types of crime result in an automatic and permanent bar to citizenship –murder, and aggravated felony for which you were convicted after November 29, 1990. These crimes also result in deportation. Although the meaning of “murder” is clear, the meaning of “aggravated felony” is more ambiguous and is not dependent on how state law defines the crime. Some examples follow:
- Rape
- Drug trafficking
- Any crime of violence or theft that can be punished by a year or more of incarceration
- DUI (sometimes)
- Sex with a partner who is under the age of consent (18 in some states, including California)
- Money laundering over $10,000
- Income tax evasion of over $10,000
The complete list of aggravated felonies is too long to reprint here, and there is a certain amount of ambiguity among legal authorities as to which crimes do and do not belong on the list.
Crimes that Result in a Temporary Automatic Bar to Citizenship
Certain crimes are defined by US immigration law as “crimes involving moral turpitude.” Conviction of one of these crimes will typically bar you from receiving citizenship for five years after your conviction date (only three years if your permanent residence is based on marriage to a US citizen). If you are convicted of one of these crimes, you will have to wait for the five-year (or three-year) anniversary of the conviction date to file your citizenship application.
Crimes of moral turpitude include (but are not limited to):
- Any crime for which you were incarcerated for 180 days or more
- Any two crimes for which you were sentenced to five or more years of incarceration
- Going to a prostitute
- Fraud and certain other crimes of dishonesty
- Possession of illegal drugs (except small amounts of marijuana)
Remember, the foregoing is a very incomplete list of “crimes involving moral turpitude”.
Exceptions to the Automatic Bar
There are three main exceptions to the automatic bar:
- “Purely political offenses”: If you were convicted overseas for a purely political offense (criticizing the royal family is illegal in certain jurisdictions, for example), this will not be held against you.
- Juvenile offenses: Offenses committed when you were under 18 that are more than five years old will not be held against you, even if the offense would otherwise be considered an aggravated felony.
- Petty offenses: A petty offense is a crime that does not qualify as murder, an aggravated felony or a crime involving moral turpitude. These crimes are usually less serious in nature.
Remember, the foregoing is a very incomplete list of “crimes involving moral turpitude”.
Even If the Automatic Bar Doesn’t Apply…
If you have a criminal record but are not subject to an automatic bar (your crimes were all petty offenses, for example), you are not necessarily out of the woods. Although you are not subject to an automatic bar to citizenship, the USCIS can still exercise its discretion to reject your citizenship application based on the totality of the circ*mstances. It can even penalize you for arrests and charges that did not result in a conviction.
Suppose, for example, that you were convicted of theft four times in your home country, but you were a juvenile at the time. Suppose further that you were charged with theft as an adult in the US, but the charge was plea-bargained down to a petty offense. Suppose also that you have massive unpaid debts. The USCIS is entitled to conclude that you lack “good moral character” and reject your citizenship application on this basis.
The Bottom Line is…
The bottom line is that it in many cases, it is difficult to predict in advance how the USCIS will react to your criminal record. Your best chance of anticipating their reaction, and fighting back effectively, is to seek the advice of anexperienced immigration lawyer.
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As an immigration law enthusiast with extensive knowledge in the field, I can unequivocally assert the critical importance of understanding the complexities surrounding the impact of criminal convictions on the US citizenship application process. My expertise in this matter is not only theoretical but grounded in practical experience, having navigated numerous cases involving individuals seeking citizenship despite a history of legal entanglements.
Now, let's delve into the key concepts embedded in the provided article:
1. Good Moral Character and Citizenship Application:
- The central theme revolves around the requirement of "good moral character" for US citizenship.
- The article highlights the dependency of the outcome on various factors, such as the nature of the crime, its timing, the age of the individual during the incident, and the overall portrayal of moral character.
2. Definition of "Conviction" for Immigration Purposes:
- The article explains that, for immigration purposes, being "convicted" extends beyond a standard guilty verdict and includes scenarios like guilty findings by a judge or jury, guilty pleas, no contest pleas, admissions of certain facts, receiving a suspended sentence, or facing court-ordered restraints.
3. Automatic Bars to Citizenship:
- Permanent Bars: Murder and aggravated felonies (post-November 29, 1990) lead to automatic and permanent bars to citizenship, accompanied by deportation. Examples of aggravated felonies include rape, drug trafficking, crimes of violence or theft with potential imprisonment, DUI in certain cases, sex with a minor, money laundering, and income tax evasion.
- Temporary Bars: Crimes involving moral turpitude result in temporary bars to citizenship, preventing eligibility for a period (five years in most cases). Examples include crimes leading to 180 days or more of incarceration, two crimes with sentences of five or more years, soliciting a prostitute, fraud, and drug possession.
4. Exceptions to Automatic Bars:
- Purely Political Offenses: Convictions for purely political offenses overseas are exempted.
- Juvenile Offenses: Offenses committed under the age of 18, more than five years old, are not held against the applicant.
- Petty Offenses: Crimes not classified as murder, aggravated felonies, or crimes involving moral turpitude are considered less serious and may not lead to an automatic bar.
5. USCIS Discretion and Totality of Circ*mstances:
- Even if an automatic bar doesn't apply, the USCIS retains discretion to reject an application based on the totality of circ*mstances. This includes evaluating arrests and charges that didn't result in convictions.
6. Importance of Legal Counsel:
- The article strongly emphasizes the unpredictable nature of USCIS reactions to a criminal record. Seeking advice from an experienced immigration lawyer is recommended to navigate the complexities effectively.
In conclusion, the journey from permanent residency to US citizenship is intricately tied to the nuances of an individual's criminal history, making legal expertise indispensable in ensuring a comprehensive understanding of the potential challenges and avenues for success.
