If you are considering U.S. citizenship, you may already be aware that a criminal record can pose obstacles to achieving this goal. Some crimes impose a permanent bar on citizenship, while others impose a temporary bar. USCIS will consider not only an applicant’s criminal record in the U.S. but also crimes committed in other countries, unless the applicant can show that they were convicted due to persecution in a foreign country. While this discussion covers the basic concepts related to crimes and citizenship, you should ask an immigration attorney to evaluate your specific criminal record and its likely impact on your application.
In general, having a criminal record may call into question whether a foreign national has the good moral character required to become a citizen. Even if you have not committed a crime that would subject you to a permanent or temporary bar automatically, USCIS may deny your application if the type of crime that you committed shows a lack of moral character. It may consider issues such as whether the foreign national cooperated with law enforcement, whether alcohol or drug abuse was involved, whether a weapon was involved, and whether a victim suffered any injuries.
Permanent Bars Based on Criminal Convictions
You will be permanently barred from obtaining U.S. citizenship if you have been convicted of murder or of an aggravated felony if the conviction was issued on or after November 29, 1990. USCIS does not have the discretion to override this type of bar, and you also probably will be subject to deportation once USCIS discovers that you have committed this type of crime. An aggravated felony is defined according to specific immigration rules and is not limited to crimes that are defined as felonies under state laws. In other words, a misdemeanor might count as an aggravated felony. Some examples of aggravated felonies include rape, sexual abuse of children, child pornography, drug trafficking, weapons trafficking, and fraud in a certain amount. Helping a foreign national illegally enter the U.S. is an aggravated felony, unless the foreign national was a spouse, parent, or child of the defendant, and they had no previous record of smuggling foreign nationals into the U.S.
An applicant will be automatically barred from obtaining U.S. citizenship and likely placed in removal proceedings if they have been convicted of murder or an aggravated felony on or after November 29, 1990.
A theft crime or a crime of violence is automatically considered an aggravated felony if the defendant was sentenced to at least one year in prison. In addition to obvious crimes of violence, such as homicide or aggravated assault, this category may include more minor crimes like resisting arrest or DUI in some cases.
Temporary Bars Based on Criminal Convictions
Other types of convictions result in a temporary bar. This means that the clock for the residency requirement restarts on the date that the foreign national committed the crime. In most cases, they will need to wait for five years after the date of the crime before applying for citizenship, or possibly three years in some situations. USCIS retains the discretion to deny your application if it feels that your criminal record shows that you do not have good moral character.
Although there is an exception to the temporary bar rule for a single offense involving 30 grams or less of marijuana, possession or use of any amount may still affect the “good moral character” assessment.
Examples of crimes that result in a temporary bar include prostitution, solicitation, drug possession, and more minor forms of fraud. There is an exception for possession of marijuana in an amount of 30 grams or less if that is your only drug crime. However, possessing marijuana in an amount greater than 30 grams results in a temporary bar, even if the possession occurred in a state in which it is legal. Any crime for which you spent 180 days or more in jail will result in a temporary bar. Also, any combination of two or more crimes that resulted in a total prison sentence of five years or more will result in a temporary bar. The reasoning behind the temporary bar is that these types of crimes prevent a foreign national from maintaining good moral character during that period.
Disclosing Arrest Records and Other Criminal History
The criminal history that you need to disclose on Form N-400 goes beyond your record of convictions. You also will need to state any arrests on your record and any crimes for which you were not arrested. Even if your case was dismissed, you must include the arrest on the application. This type of history relates to the good moral character requirement. While an arrest or a crime for which you were not arrested will not result in an automatic bar, whether temporary or permanent, it can result in the denial of your naturalization application based on a lack of moral character. However, you should not make false statements on the application. You could lose your citizenship if the falsehood is eventually discovered. USCIS likely will find out about arrests when it conducts the fingerprint check that forms part of the application.
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