If you are a permanent resident seeking US citizenship, your N-400 citizenship application will 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 circumstances. 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 an experienced immigration lawyer.
Looking for more information, check out our naturalization & citizenship guidelines now!
