If you have been a lawful permanent resident with a green card for more than five years you may be eligible for naturalization as a citizen of the United States.[1]
However, if you have had any interactions with the criminal justice system you should consider this article and consult an immigration attorney before you try to gain U.S. citizenship by filing Form N-400, Application for Naturalization.
Criminal Records and Deportation
Foreign nationals who have committed a crime of moral turpitude, a crime related to a controlled substance, or engaged in terrorist activities are inadmissible to the United States.[2]
Likewise, a non-citizen living in the United States who has been convicted of certain crimes, including crimes of moral turpitude or punished by at least one year in prison, can be deported.[3]
These crimes may come to the attention of the federal government soon after the conviction which often results in deportation proceedings.
But sometimes a conviction will slip through the cracks one way or another and the government will not go after a permanent resident or visa holder.
In the case of an immigrant who is not deported, records of the conviction can show up again if they apply for citizenship.
For this reason, some green card holders would be wise to not apply for citizenship if their criminal history would call for deportation.
Criminal Background Checks in an Application for U.S. Citizenship
When you apply for naturalization, USCIS will conduct a criminal background check to determine your eligibility.[4]
This background check should consist of a review of all government records, police department checks and a neighborhood investigation of the area where you’ve lived and been employed or conducted business for the past five years.
Just because your records have been sealed does not mean past criminal charges will be ignored.
Even convictions which have been set aside or taken off your record may be used against you in the government’s determination of whether to grant you citizenship.[5]
One exception to this rule is in a case where the President of the United States or governor of any state has granted you a full pardon for the crime.[6]
Crimes Used as Grounds for Deportation
The American Congress has listed numerous crimes, ranging from misdemeanors to serious felonies, which could stand between you and U.S. citizenship.
This list is very broad, encompassing many types of crimes, and certain categories will overlap and justify deportation for one crime on several grounds.
Crimes of Moral Turpitude
Any non-American citizen who has been convicted of a crime involving moral turpitude after lawful admission within the past ten years can be deported and therefore would have a hard time obtaining citizenship.[7]
Just one conviction can be grounds for deportation only if it was punishable by a year or longer in prison.
Moral turpitude is a term used in American law to describe conduct that goes against community standards of how people should behave, including dishonesty and bad morals.
For immigration purposes, courts have recognized moral turpitude to mean “conduct that shocks the public conscience” because it is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.”
To determine moral turpitude, courts look to whether the act was “accompanied by a vicious motive or a corrupt mind.”[8]
Crimes which have been recognized as involving moral turpitude under immigration law include:
- Using forged or false documents[9]
- Resisting arrest or using violence against a law enforcement officer[10]
- Malicious destruction of property[11]
- Indecent assault and battery including crimes against minors[12]
- Robbery[13]
This list provides examples of crimes that involve moral turpitude but does not come close to including all of those the Board of Immigration Appeals considers deportable.
In general, the Board will look to the nature of the crime for whether it’s the type of act that would violate community standards of decency and then to the record of conviction for how the case proceeded through the court system.[14]
Multiple Criminal Convictions
A permanent resident who has been convicted of more than one crime involving moral turpitude can be deported as long as both crimes did not arise “out of a single scheme of criminal misconduct.”[15]
Even if multiple convictions were the result of a single trial, the crimes could be treated as more than one if the criminal acts took place separately from each other.
Aggravated Felonies
The term “aggravated felony” refers to certain crimes punishable by more than one year which, upon conviction, can result in deportation.
Aggravated felonies under immigration law include:
- Murder
- Drug trafficking crimes
- Illicit trafficking of firearms or other destructive devices
- Violent crimes
- Theft or burglary
- An offense related to smuggling an alien into the United States
- Murder, rape, or sexual abuse of a minor
- An offense related to fraud or deceit
- Bribery, counterfeiting or forgery
- Conspiracy or attempt to commit any of the aggravated felonies.[16]
Other Crimes Specified by Congress
Congress has also specifically authorized deportation of aliens who have been convicted of the following crimes:
- Attempted high speed escape from an immigration checkpoint
- Failure to register as a sex offender[17]
- Illegal possession of a controlled substance (except 30 grams or less of marijuana for one’s own personal use)
- Certain firearm offenses
- Conspiracy or attempt to commit espionage, sabotage, treason or sedition with a punishment of five or more years
- Crimes of domestic violence including stalking and crimes against children
- Terrorist activities
- Voter fraud.[18]
Exceptions for Victims of Domestic Violence
If you have been battered or subjected to extreme cruelty and were not the perpetrator of the violence, the government may choose not to deport you for convictions related to domestic violence.[19]
If Your Application for U.S. Citizenship is Denied
If USCIS denies your application for naturalization, you have an opportunity to appeal the decision and may still be able to become an American citizen.[20]
In this case you should hire a qualified immigration lawyer to represent you, if you haven’t done so already.
Even if your application was denied because of criminal history, there is a chance that USCIS made a mistake and your conviction would not warrant deportation.
But to avoid deportation at this point will likely require the assistance of an immigration attorney.
Removal Proceedings
If evidence of your conviction is turned over to Immigration and Customs Enforcement (ICE) for removal proceedings, you will be given a hearing in front of an immigration court.
At this hearing you are allowed to represent yourself, but you will have a much greater chance of success if you are represented by an immigration lawyer.
An initial decision by the court that you should be deported may be reviewed by the Board of Immigration Appeals.
But the Board may deny review and issue a final decision without a second hearing.
Once a final decision is reached by the Board, you may be deported to your home country.
However, you will still have an opportunity to appeal this decision through the federal court system.
With such a large number of crimes that justify deportation, it isn’t always likely that a court will overturn the Board’s decision.
But since the Board’s decision often requires a determination of whether your conviction under state law meets the federal definition of a crime calling for deportation, courts will sometimes consider whether the Board made the right decision.
For example, in 2004 the Supreme Court decided that a conviction for driving under the influence of alcohol and injuring another driver was not a “crime of violence” and therefore did not qualify as an “aggravated felony” which would otherwise call for deportation.[21]
In that case, the immigrant, a man from Haiti, was deported in 2002 after serving his prison sentence but was still able to appeal the decision through the federal courts which resulted in the Supreme Court’s decision in 2004.
What You Can Do
Because every case is different and we do not know your specific circumstances, this article is not meant to be used as legal advice.
The first step you should take in deciding what to do if this article applies to you is to talk with an immigration attorney--we provide consultations.
If you think you’ve been convicted of a crime that calls for deportation, you may be better off if you remain under the radar and do not apply for naturalization.
If you are a lawful permanent resident and removal proceedings have not been initiated against you despite a criminal conviction, it is entirely possible that you can remain in the United States legally without becoming a citizen.
U.S. citizenship includes many benefits even if you are already allowed to remain in the country as a permanent resident.
But an application for naturalization will likely call attention to your criminal history which can result in deportation.
If the conviction you’re concerned about was one involving moral turpitude, you may be able to apply for naturalization ten years after serving your sentence.
In many cases, once ten years have passed you will not be subjected to deportation for that crime.
You should not expect – or even try – to become an American citizen by keeping your conviction(s) a secret.
Even if your crime is not one that qualifies you for deportation, making false claims or failing to disclose a conviction can result in deportation.
The best thing you can do would be to hire an immigration attorney to fully review your case.
You should keep in mind that if you have a conviction on your record that could result in deportation, your wisest option may be to remain a lawful permanent resident without applying for naturalization.
[1] 8 U.S.C. § 1427.
[2] 8 U.S.C. § 1182(a)(2)(A)(i).
[3] 8 U.S.C. § 1226(c)(1)(B), (C).
[4] 8 C.F.R. § 335.1
[5] United States v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004).
[6] 8 U.S.C.A. § 1227(a)(2)(A)(vi).
[7] 8 U.S.C.A. § 1227(a)(2)(A)(i).
[8] Maghsoudi v. I.N.S., 181 F.3d 8, 14 (1st Cir. 1999).
[9] Yeremin v. Holder, 738 F.3d 708 (6th Cir. 2013).
[10] Cano v. U.S. Atty. Gen., 709 F.3d 1052 (11th Cir. 2013).
[11] Da Silva Neto v. Holder, 680 F.3d 25 (1st Cir. 2012).
[12] Maghsoudi, supra note 8.
[13] Maghsoudi, supra note 8.
[14] See Da Silva Neto, supra note 11.
[15] 8 U.S.C.A. § 1227(a)(2)(A)(ii).
[16] Kurtis A. Kemper, J.D., What Constitutes “Aggravated Felony” for which Alien Can Be Deported or Removed Under § 237(A)(2)(A)(III) of Immigration and Nationality Act (8 U.S.C.A. § 1227(A)(2)(A)(III)), 01-11 Immigration Briefings 1 (2001).
[17] 8 U.S.C.A. § 1227(a)(2)(A)(iv), (v).
[18] 8 U.S.C.A. § 1227(a).
[19] 8 U.S.C.A. § 1227(a)(7).
[20] 8 C.F.R. § 336.2.
[21] Leocal v. Ashcroft, 543 U.S. 1 (2004).
