06 Nov What are the convictions that bar naturalization application?
Q. What is considered a conviction?
A: First it is important to note what constitutes a conviction for immigration purposes. According to USCIS, “conviction” means a formal judgment of guilt entered by a court, or an adjudication of guilt is withheld if a judge or jury has found the person guilty, or a no contest plea was entered, or sufficient facts were admitted to warrant a finding of guilt and the judge has ordered a form of punishment, penalty, or imposed a restraint on the alien’s liberty. For immigration purposes, if there is no admission or finding of guilt, then the offense may not count as a conviction.
Q: How does a finding of moral turpitude affect a finding of good moral character?
A: According to 8 CFR § 316.10, “an applicant who has committed or admits the commission of two or more crimes involving moral turpitude … is precluded from establishing good moral character, even though the conviction record of one or more offenses has been expunged.”
Q: What happens if I committed one or more CIMTs in statutory period?
A: An applicant who is convicted of or admits to committing one or more CIMTs during the statutory period cannot establish GMC for naturalization. If the applicant has only been convicted of (or admits to) one CIMT, the CIMT must have been committed within the statutory period as well. In cases of multiple CIMTs, only the commission and conviction (or admission) of one CIMT needs to be within the statutory period.
Q: What if the CIMT is a “petty offense”?
A: An applicant who has committed only one CIMT that is a considered a “petty offense,” such as petty theft, may be eligible for an exception if all of the following conditions are met:
• The “petty offense” is the only CIMT the applicant has ever committed;
• The sentence imposed for the offense was six months or less; and
• The maximum possible sentence for the offense does not exceed one year.
Q: What if I committed more than one petty offenses?
A: The petty offense exception does not apply to an applicant who has been convicted of or who admits to committing more than one CIMT even if only one of the CIMTs was committed during the statutory period. An applicant who has committed more than one petty offense of which only one is a CIMT may be eligible for the petty offense exception.
Q: I pleaded guilty of a crime and the judge sentenced me to community service after which my conviction was discharged and my record sealed. Will my conviction impact my citizenship application?
A: It depends on the nature of the crime, but U.S. immigration law considers you to have been convicted. That is despite the discharge and any sealing of your record.
Q: What if I was sentenced to more than five years for the crime?
A: An applicant may not establish GMC if he or she has been convicted of two or more offenses during the statutory period for which the combined, imposed sentence was five years or more. The underlying offenses must have been committed within the statutory period.
Q: If the offense was drug-related, can I establish GMC?
A: No. An applicant cannot establish GMC if he or she has been convicted of or admits to having violated any controlled substance-related federal or state law or regulation of the United States or law or regulation of any foreign country during the statutory period. This bar to establishing GMC also applies to an admission to committing acts that constitute the essential elements of any controlled substance violation.
Q: If the violation was only once and was only for simple possession of marijuana, does the conditional bar apply?
A: No. The conditional bar to GMC for a controlled substance violation does not apply if the violation was for a single offense of simple possession of 30 grams or less of marijuana.
Q: Can I establish GMC if I was imprisoned for more than 180 days?
A: No. An applicant cannot establish GMC if he or she is or was imprisoned for an aggregate period of 180 days or more during the statutory period based on a conviction. This bar to GMC does not apply if the conviction resulted only in a sentence to a period of probation with no sentence of incarceration for 180 days or more. This bar applies regardless of the reason for the conviction. For example, this bar still applies if the term of imprisonment results from a violation of probation rather than from the original sentence. The commission of the offense resulting in conviction and confinement does not need to have occurred during the statutory period for this bar to apply. Only the confinement needs to be within the statutory period for the applicant to be precluded from establishing GMC.
Note: This is not a legal advice. You should seek the advice of your attorney about your specific case.