How Criminal Charges and Convictions Can Affect the Naturalization Process: What Every Applicant Should Know

Written by: Roberto Santiago-Garcia, Immigration Help USA (A Division of Lex Tecnica) Law Clerk

Naturalization refers to the process by which non-citizens who are lawful permanent residents obtain U.S. citizenship.¹ To begin the naturalization process, applicants file Form N-400, Application for Naturalization, with United States Citizenship and Immigration Services, commonly known as USCIS. USCIS then conducts an investigation and examination to determine whether the applicant satisfies all statutory and regulatory requirements.²

An individual’s criminal history can complicate a naturalization application. A key requirement for naturalization is demonstrating that the applicant has good moral character. Because of this, an applicant’s arrests, charges, convictions, admissions, periods of probation or parole, and even some dismissed or expunged matters may be considered by USCIS when deciding whether to grant or deny naturalization.

Nothing in this post constitutes legal advice. Any person with a criminal record should consult a qualified immigration attorney before filing Form N-400.

After the application is filed, USCIS conducts a background and security investigation, which includes fingerprinting and a federal background check against various state and federal databases.³ USCIS will complete these checks before scheduling the naturalization interview, often the last step before the naturalization oath ceremony.⁴

The naturalization interview consists of a USCIS officer questioning the applicant under oath to establish eligibility. During this interview, the officer may ask questions regarding the various facets of moral character and other matters relating to eligibility.⁵ If USCIS needs additional records, it may issue a Request for Evidence and give the applicant an opportunity to respond.⁶

Most naturalization applicants must demonstrate that they have been, and continue to be, a person of good moral character.⁷ The statutory period during which good moral character must be established varies:

• Five years immediately preceding the date of filing, for most applicants;
• Three years for certain applicants married to U.S. citizens who meet additional requirements;
• One or five years for certain military applicants, depending on the applicable military naturalization provision.⁸

The applicant must show good moral character for the required statutory period and maintain that character through the filing date and the date of the Oath of Allegiance.⁹ USCIS evaluates good moral character on a case-by-case basis unless a statute or regulation imposes a mandatory bar.¹⁰ These bars may be conditional and only prevent naturalization when the activity occurred during the statutory period, or permanent and result in the permanent disqualification of the non-citizen for naturalization.¹¹ Where no bar applies, USCIS may consider all relevant facts and circumstances, including conduct outside the statutory period.¹²

Under immigration law, the definition of a “conviction” is much broader than how many states interpret the term. A person has a “conviction” when there is a formal finding or admission of guilt and a punishment ordered based on that finding.¹³

This broader definition can affect how certain criminal resolutions that are generally favorable to a defendant may still cause issues in the federal immigration context, including resolutions such as:

• Deferred adjudication and diversion programs: Any pre-trial diversion, deferred adjudication, or rehabilitative disposition may constitute a conviction.
• Expungement: Expungement of a conviction under state law generally does not eliminate the immigration consequences of that conviction. An expunged conviction is typically still a conviction for immigration purposes.
• Nolo contendere, or no contest, pleas: A plea of nolo contendere followed by a penalty or restraint on liberty is a conviction for immigration purposes, even though it is not technically an admission of guilt under state law.
• Foreign judgments: A criminal conviction handed down by a foreign court counts for immigration purposes, provided that the underlying conduct is also recognized as criminal under U.S. law.¹⁴

USCIS may ask about any arrest or charge and may request police reports, arrest records, or certified court dispositions.¹⁵ USCIS may review records even if the charge was dismissed, reduced, or never prosecuted.¹⁶ Under 8 C.F.R. § 316.10(b)(2)(vi), USCIS may deny good moral character where the applicant has admitted committing the essential elements of a crime involving moral turpitude or a controlled-substance violation, regardless of whether charges were filed.¹⁷

In a similar vein, USCIS takes the position that an applicant currently on probation, on parole, or under a suspended sentence should not be approved for naturalization.¹⁸ Merely completing the requirements of probation or parole before filing does not guarantee approval, but a failure to do so likely ensures denial. If the underlying offense falls within the statutory period, it will still be examined as part of the good moral character analysis.¹⁹

An applicant who is currently on probation or parole, or who is serving a suspended sentence, should seek legal advice before filing, as previous criminal history can serve as the basis for instituting removal proceedings against the non-citizen. The institution of such proceedings is of particular concern to applicants because, under INA § 318, 8 U.S.C. § 1429, USCIS cannot proceed with a naturalization application while removal proceedings are pending against the non-citizen.

Applicants must answer every question on Form N-400 truthfully and completely and must testify truthfully at the naturalization interview.²⁰ This obligation extends to questions about arrests, charges, convictions, court proceedings, and any matters for which the record may have been expunged, sealed, or dismissed. When potential information could lead to disqualification, it is important to consult with an immigration attorney to determine how best to present unfavorable information.

Omitting, minimizing, or concealing criminal history can create consequences far more serious than the criminal matter itself:

• USCIS may deny naturalization on the basis of misrepresentation alone, separate from any underlying criminal issue.
• If naturalization is obtained through willful misrepresentation or concealment of a material fact, it may later be revoked. Under INA § 340(a), 8 U.S.C. § 1451(a), a naturalized citizen’s citizenship may be revoked in a civil action brought by the government if the naturalization was illegally procured or was procured by concealment of a material fact or willful misrepresentation.
• Revocation proceedings can occur years after naturalization is granted and may result in removal proceedings.

Misrepresentations may result in denaturalization.²¹

A criminal record does not automatically disqualify a person from becoming a U.S. citizen. Whether a particular arrest, charge, conviction, or admission affects naturalization depends on the nature of the offense, when it occurred, how it was resolved, and how the applicable statutes, regulations, and USCIS policy interact with those facts.

Individuals with any history of legal or criminal issues, including but not limited to anyone currently serving a sentence of probation, parole, or a suspended sentence, should consult a qualified immigration attorney before initiating the naturalization process.

References

1. INA § 101(a)(23), 8 U.S.C. § 1101(a)(23); U.S. Citizenship and Immigration Services, Citizenship and Naturalization, U.S. Department of Homeland Security, https://www.uscis.gov/citizenship/learn-about-citizenship/citizenship-and-naturalization
2. INA § 335, 8 U.S.C. § 1446; 8 C.F.R. §§ 335.1–335.2; USCIS Policy Manual, Vol. 12, Part B, Chapter 2.
3. 8 C.F.R. § 335.1; USCIS Policy Manual, Vol. 12, Part B, Chapter 3.
4. 8 C.F.R. § 335.2.
5. 8 C.F.R. § 335.2(b); USCIS Policy Manual, Vol. 12, Part B, Chapter 4.
6. 8 C.F.R. § 103.2(b)(8); USCIS Policy Manual, Vol. 12, Part B, Chapter 5.
7. INA § 316(a), 8 U.S.C. § 1427(a).
8. INA § 316(a), 8 U.S.C. § 1427(a); INA § 319(a), 8 U.S.C. § 1430(a); INA §§ 328–329, 8 U.S.C. §§ 1439–1440.
9. 8 C.F.R. § 316.10(a)(1); USCIS Policy Manual, Vol. 12, Part F, Chapter 2.
10. 8 C.F.R. § 316.10(a)(2); USCIS Policy Manual, Vol. 12, Part F, Chapter 2.
11. 8 C.F.R. § 316.10(b)(1); 8 C.F.R. § 316.10(b)(2).
12. INA § 101(f), 8 U.S.C. § 1101(f); USCIS Policy Manual, Vol. 12, Part F, Chapter 2.
13. INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).
14. USCIS Policy Manual, Vol. 12, Part F, Chapter 2(B)(1), (4), (6), and (7); INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).
15. 8 C.F.R. § 316.10(b)(2); USCIS Policy Manual, Vol. 12, Part F, Chapter 5.
16. Id.
17. 8 C.F.R. § 316.10(b)(2)(vi).
18. INA § 318, 8 U.S.C. § 1429; 8 C.F.R. § 316.10(b)(2)(vii)–(viii); USCIS Policy Manual, Vol. 12, Part F, Chapter 5.
19. 8 C.F.R. § 316.10(b)(2); USCIS Policy Manual, Vol. 12, Part F, Chapter 5.
20. INA § 316(e), 8 U.S.C. § 1427(e); 8 C.F.R. § 335.2(b).
21. INA § 340(a), 8 U.S.C. § 1451(a); USCIS Policy Manual, Vol. 12, Part L.

This article has been reviewed and approved for legal accuracy by Tamaryn Da Ponte, Esq. It is intended for informational purposes only and does not constitute legal advice.