Commandment #2 of Applying for Naturalization: Thou Shall Not Pretend Never Have Been in the Big House (Unless You Truly Haven’t)

There are several requirements an applicant must meet before becoming a naturalized U.S. citizen. One of these requirements is that the applicant must be a person of “good moral character”. What constitutes good moral character is not clearly defined by statute, although it has been interpreted by case law to mean behavior that meets the moral standard of the average citizen in the applicant’s community.

There are various factors that will affect a determination of good moral character. Section 101(f) of the Immigration and Nationality Act (INA) has a list of factors that would prevent a person from showing good moral character. Factors that affect this determination include: refusing to pay court-ordered child support; failing to file or to pay income taxes; neglecting to register for Selective Service (if you are required to do so); lying to obtain an immigration benefit; driving drunk or habitual drunkenness; adultery; and several other grounds, including being arrested or convicted for any criminal offense whether in or outside of the United States. Although not every arrest or conviction renders the applicant ineligible to apply for U.S. citizenship, an applicant who has ever been involved in any criminal proceeding should consult with an experienced immigration attorney before submitting an application with the U.S. Citizenship and Immigration Services.

All arrests and convictions should be analyzed by an experienced immigration lawyer to determine whether they render the applicant ineligible to apply or whether the applicant’s criminal history would not only result in the denial of the application, but possibly the initiation of deportation proceedings. If the applicant elects to move forward with the application, all arrests and convictions should be disclosed – even if the records have been expunged. 

It is very important to highlight that the definition of what exactly constitutes a conviction is different for immigration purposes. To read the immigration definition of what constitutes a conviction INA § 101(a)(48) should be consulted. A person might not have a conviction for state purposes or even have had the case expunged, and still have a conviction for immigration purposes. The fact that the offense might have occurred many years ago is irrelevant for removal purposes. For example, a Lawful Permanent Resident (LPR) is subject to removal from the United States for a violation of relevant immigration laws, regardless of the length of residency or the age at which it was attained. Thus, an individual who immigrated to the United States when he was a couple of months old who is now convicted of a crime at age 65 can be removed, depending on the nature of the conviction.

There are many important reasons why clients should not withhold important information from their attorneys. In my years working as an immigration attorney I have encountered people that, for one reason or another, have decided to hide important information that would have avoided problems in the future. Most people that fit this category are well-intentioned people that are extremely embarrassed by their past. Of course, there are some that think (or hope) that by not disclosing an arrest, that somehow no one will realize it. Hopefully the client feels comfortable enough with their attorney to confide in them very personal details about their past, especially when they have had any contact with the criminal justice system. The attorney also plays an important role in extracting some of this information and bringing the issue to the floor so an open and honest conversation can follow. It’s important that the applicant understand that the U.S. Citizenship and Immigration Services (USCIS) will require fingerprints to be taken as part of the application process.

When in doubt, we have clients complete an FBI Identification Record, often referred to as a Criminal History Record or Rap Sheet. The FBI Rap Sheet is a listing of certain information taken from fingerprint submissions retained by the FBI in connection with arrests and, in some instances, federal employment, naturalization, or military service. Once submitted, the results normally arrive within 30-60 days.

As most of our readers know, criminal convictions can have very serious consequences in an immigration matter. We recently posted an entry about the case of a Lawful Permanent Resident (LPR) who was convicted of Petit Larceny in Virginia and later placed in deportation proceedings. We encourage our readers to read that entry to see the interplay between state and federal law as it relates to the removability of criminal non-citizens.  There are ways that criminal and immigration counsel can work together to achieve the best possible results that could minimize or prevent immigration consequences.

In all, the client’s interests are better served by having an open and honest conversation about these topics. Although momentarily uncomfortable for the client, being straightforward about their past can not only save them thousands of dollars in legal fees, but a lot of heartache for them and their family in the future.

Custom and Border Protection (CBP) Revokes Notice to Appear (NTA) for Client Returning From Trip Abroad

Our law firm recently worked with Customs and Border Protection (CBP) to have them return our client’s alien registration card or “green card” and to have them revoke the Notice to Appear (NTA) which had placed our client erroneously in removal proceedings. Our client was returning from a trip abroad and was detained upon inspection when their system showed incomplete information regarding a past criminal matter that did not result in a conviction.

The whole ordeal began when our client was returning from a short trip abroad. Like many times before, she presented her alien registration card or "green card" to the CBP officer upon disembarking the plane. This time though, she was in for an unpleasant surprise. As the CBP officer reviewed his computerized system, he noticed a "hit" or arrest in our client's background and placed her in secondary inspection. Secondary inspection is a separate, more thorough screening that normally lasts several hours. During this secondary inspection, the CBP officers involved misread the information on their computer, and instead of inquiring further with their legal department, they confiscated our client's green card and issued a Notice to Appear (NTA) which basically placed our client in removal proceedings.

When our client first came to see us she was understandably upset about the entire situation. Upon further review of her case, and close examination of her record, we determined that there were in fact no convictions and therefore the NTA should not have been issued. We contacted CBP and for the next several days corresponded back and forth until the issue was resolved in favor of our client. The NTA was ultimately revoked and our client got her green card back.

On a recent blog we discussed the dangers lawful permanent residents face when traveling abroad when they have previous criminal convictions. We encourage our readers to review that entry as it outlines factors that LPRs should consider before traveling. LPRs that have been arrested in the past but never convicted should travel with a certified copy of the Final Disposition Record. However, it is very important to highlight that the definition of what exactly constitutes a conviction is different for immigration purposes. Thus, a person might not have a conviction for state purposes or even have had the case expunged, and still have a conviction for immigration purposes. We will discuss the immigration definition of what constitutes a conviction on a different post. LPRs that are not sure whether they have a conviction for immigration purposes are urged not to travel until they have an experienced immigration attorney review their record.

PLEASE NOTE THAT THE RESULTS OF PAST CASES DEPEND ON A VARIETY OF FACTORS UNIQUE TO EACH CASE. PAST CASE RESULTS DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN FUTURE CASES.