Criminal Record that Bars Citizenship

By Reuben S. Seguritan

July 29, 2015

Permanent residents applying to become U.S. citizens often ask whether a criminal record would make them ineligible for citizenship.

Good moral character is a requirement for naturalization. A person who has been convicted of murder, at any time, or of any other aggravated felony, if convicted on or after November 29, 1990, cannot establish that he is a person of good moral character. He is therefore automatically barred from naturalizing.

Aggravated felonies under U.S. immigration law include murder, rape, sexual abuse of a minor, and illicit trafficking in controlled substances or in firearms, among others.

Crimes of violence with an imprisonment of at least one year are considered aggravated felonies.  Crimes of violence involve the use or threat of physical force against the person or property of another, or by its nature involve substantial risk that physical force may be used in the course of committing the offense. Kidnapping, stalking, sexual assault and third degree assault, are examples of crimes that have been held by courts to be crimes of violence.

Offenses involving theft and burglary may constitute an aggravated felony if the term of imprisonment is at least one year.

The term of imprisonment is the prison sentence ordered by the court regardless of whether the sentence was suspended.

In a fraud and deceit offense the length of imprisonment is not what makes it an aggravated felony but rather the elements of the offense and the dollar amount of the victim’s loss, which must exceed $10,000.

A person convicted of an aggravated felony prior to November 29, 1990, is not permanently barred from naturalizing. However, it may still trigger removal proceedings and result in deportation.

Admission that one has committed certain crimes either in the U.S. or abroad, although not formally charged, arrested or convicted for it, makes the person ineligible for naturalization.

Other crimes or offenses may temporarily bar a person for naturalization. A person who committed certain crimes will have to wait 5 years (or 3 years if married to a citizen) after the offense before applying for citizenship. This is the statutory period for determining good moral character as a requirement for U.S. citizenship.

Crimes that temporarily bar a person from naturalizing include crimes involving moral turpitude, two or more offenses for which the applicant was convicted and the sentence actually imposed was 5 years or more, and any crime for which a person was confined to prison for more than 180 days, among others. Crimes involving moral turpitude are those that are “inherently base, vile or depraved, and contrary to the accepted rules of morality.”

Upon application, it is important to disclose all information and report all offenses committed including expunged convictions or those removed from the applicant’s records and committed before his 18thbirthday.

The USCIS will consider the seriousness of the offense committed before the statutory period and whether the applicant has reformed his character to determine if he meets the good moral character requirement.