There are a great many reasons why the USCIS might deny your application for citizenship — the conviction of a crime, overdue taxes, delinquent child support payments, being a “habitual drunkard”, adultery and even criminal acts that were never prosecuted can all justify a rejection. Nevertheless, there are ways to fight back if you are not ready to give up.
Filing an Appeal
If your Form N-400 citizenship application is denied, your first avenue of attack will be to appeal the decision by filing Form N-336 with the USCIS within 30 days of the date that your citizenship application was denied. A hearing before an USCIS officer should be scheduled within 180 days. The officer should be a different officer than the one who denied your original application, and he should be of equal or higher rank. You are allowed to bring your immigration lawyer with you.
What to Expect?
The officer who hears your case is empowered to overturn the denial and accept your application for citizenship, uphold the denial and deny you citizenship, or hold a formal new hearing in which he considers new evidence.
If your appeal asserts no new facts and provides no new evidence, it is likely to be denied unless you can point to a clear error of fact or law made by the officer who rejected your initial application. Formerly, it was almost impossible to convince a USCIS officer to overturn the rejection of a citizenship application. Over the past few years, however, the situation has improved somewhat.
Important Matters to Consider
Consider the following before you file an N-336 appeal:
- The filing fee for an appeal is $700 as of 2019. It might not be worth the money unless you have solid grounds for appeal.
- If you were denied for insufficient knowledge of US history and government or inadequate English language skills, you might want to consider using the time between the initial denial and the appeal hearing to brush up on your skills. You could then request to be re-tested, and if the officer grants your request and you pass, the denial of your application could be overturned and you could be granted citizenship.
- If your appeal is denied and you want to keep on fighting, you can always file a lawsuit against the USCIS in federal district court. The court will be obligated to take a fresh look at your case — it is not bound by USCIS precedent. If you lose in the district court, you can appeal the case to the federal appeals court.
Don’t forget that unless you committed a serious crime that would render you subject to deportation, the worst-case scenario is likely to be the rejection of your appeal, which would still allow you to file a new application for citizenship. If you are subject to a temporary bar, however, it may be pointless to submit a new citizenship application until the temporary bar expires (five years for most applicants).
As a US permanent resident, you need to file Form N-400, along with supporting documents, to apply for citizenship. An interview with a USCIS officer is required along with tests of history, civics and English language ability. If everything goes well, you can take the Oath of Allegiance and obtain a Certificate of Naturalization. The problem, of course, is that everything doesn’t always go well.
To obtain citizenship, the USCIS must determine that you are a person of “good moral character” after examining your background. Good moral character is a formal requirement with a very specific legal meaning. Unpaid taxes and delinquent child support obligations can definitely affect your chances of being granted US citizenship.
What is “Good Moral Character”?
Put succinctly, a person of good moral character is someone whose behavior is consistent with the expectations of a law-abiding society in the community in which he or she resides. This means more than simply refraining from committing crimes, however.
You must also manage your affairs in terms of general moral expectations, and your debts are relevant to the extent that failure to pay them raises questions about your moral character.
Permanent and Temporary Bars
Certain behaviors can result in you being barred from citizenship. The USCIS applies two kinds of bars — permanent bars to citizenship and temporary bars to citizenship. Permanent bars apply to serious crimes such as rape and drug trafficking.
It is dangerous to submit a citizenship application if you are subject to a permanent bar because you could not only be turned down for citizenship, you could be detained, deported, and barred from re-entering the US.
Temporary bars apply to less serious crimes and to non-criminal behavior such as alcoholism. These bars are temporary because the USCIS only looks back five years to find them (three years if you are married to a US citizen). If you are subject to a temporary bar, your citizenship application will be denied, but you will remain a permanent resident and you can re-apply for citizenship as soon as your record has remained clear for the last five (or three) years.
Unpaid Child Support
Failure to comply with court-ordered child support payments is considered a serious matter that can sometimes result in incarceration. The USCIS will also hold this against you, regardless of whether the court that ordered you to pay is located in the United States or abroad. The USCIS can impose a temporary bar to citizenship on the basis of unpaid child support.
Since the real issue is your moral character, not your finances, the USCIS might refrain from issuing a bar if you can establish extenuating circumstances. Unemployment may or may not be considered an acceptable extenuating circumstance, depending on the reason for your unemployment. Medical disability, for example, might be viewed leniently by the USCIS, as might a demonstration of reasonable efforts to pay.
Since child support is considered a legal as well as a moral obligation, however, you are not necessarily in the clear just because no court has yet ordered you to pay child support. If you are the parent of a child (under 18), you will be expected to pay your fair share of child support even without a court order. Of course, the USCIS will consider extenuating circumstances in this situation as well. If you are a man, for example, you might reasonably doubt your paternity.
Unpaid Taxes
Unpaid taxes are likely to affect your citizenship application, but it is not impossible for your application to be accepted despite a delinquent tax bill. It all depends on how much you owe, how long you have owed it, and why you haven’t paid it. Some examples follow:
- If your failure to pay taxes adds up to intentional tax evasion of more than $10,000, the USCIS will apply a permanent bar (meaning that you will never be eligible for citizenship) and then put you into deportation proceedings.
- If you committed intentional tax evasion of less than $10,000, the USCIS will probably apply a temporary bar.
- If your failure to pay your tax bills did not involve any dishonesty, the USCIS is less likely to reject your citizenship application than it would be if you intentionally avoided paying by, say, falsifying your tax return or failing to file altogether. You could still be subject to a temporary bar, however.
One of the most common ways that permanent residents see their citizenship applications denied on the basis of tax evasion is failing to report income earned abroad to the IRS. As a permanent resident, your entire worldwide income is subject to taxation (although tax treaties and the foreign-earned income exclusion often reduce the actual tax liability to zero).
The best way to maximize your chances of obtaining citizenship in the face of unpaid taxes is to make arrangements with the IRS or local authorities to pay them, even if you have to set up a payment plan. Your chances for citizenship will greatly improve if your taxes are already paid, even if late, by the time you apply for citizenship. The USCIS might also treat you leniently if you are making late payments on a negotiated payment plan.
Ultimately, the determination of whether unpaid child support or back taxes will prevent the approval of your citizenship application is a judgment call based on the circumstances, at least if your conduct does not add up to a criminal offense.
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!