Five Years Passed Since Crime: Can You Apply for Naturalization?
To qualify for naturalization, the law requires that you show that you have resided in the U.S. for a specific period of time, and that for all of that time period you have been and continue to be “a person of good moral character.”
If you are a green card holder (a lawful permanent resident) interested in applying for naturalization, you probably know that a crime on your record might bar your approval. That’s because, in order to qualify for naturalization, the law requires you to show that you have resided in the U.S. for a specific period of time and that, for all of that time period, you have been and continue to be “a person of good moral character.” We call that the “good moral character period.”
This is why it’s so important to include every name (and every variation of your name) that you have ever used on the first page of the N-400 application. If you leave off a name, or fail to include your middle name or all your surnames, this can slow down approval of your application, because those name checks cannot be completed before your interview. When you apply for naturalization, USCIS will run your fingerprints and name(s) through every database imaginable—federal, state, international, and local.
USCIS will also require a certified copy of ALL your criminal convictions (ever) and proof that you have complied completely with all fines, probationary periods, and so forth.
Convictions Leading to Permanent Finding of Bad Moral Character
The most serious crimes, such as murder and other aggravated felonies, will automatically and permanently bar a person from ever being considered to have good moral character. If you have one of these on your record you will never qualify for U.S. citizenship, no matter how long you wait.
Convictions That Make You Deportable
Other convictions will not be permanent bars to good moral character, but they do make you deportable, and here again, waiting for time to pass won’t make that fact go away. Some of these crimes might seem quite minor—for example, a conviction for violating a protective order can result in your deportation from the United States.
If you apply for naturalization with a deportable conviction on your record—regardless of how much time has passed—USCIS may place you in removal proceedings. Most domestic violence convictions, including protective order violations, and nearly all convictions related to firearms and drugs, can make you deportable.
If you have a conviction on your record that makes you deportable, then regardless of how much time has passed, if you apply to naturalize, USCIS may decide, instead of granting your citizenship application, to begin removal proceedings against you.
But it’s also important to understand that even if you are deportable, you can still have good moral character if you have no convictions during the good moral character period. In these cases, USCIS can choose to exercise what lawyers call “prosecutorial discretion.” That means USCIS can decide not to begin removal proceedings, and instead approve your application for naturalization. Because asking USCIS to exercise prosecutorial discretion is difficult, if you have a deportable offense on your record, you should never apply for naturalization without consulting an attorney first.
Convictions That May Lead USCIS to Find You Do Not Have Good Moral Character
There are many crimes that are not permanent bars to naturalization, and don’t make you deportable, but that USCIS will still find are evidence of bad moral character. If you have a conviction for shoplifting, for example, and you apply for naturalization without waiting until your arrest is outside the good moral character period, it is 100% guaranteed that your application will be denied.
Currently, any remotely serious conviction (DUI, battery, criminal damage to property, negligent care of a child, and so on) will likely cause USCIS to deny your application for lack of good moral character.
In the past, if a crime required a knowing and intentional choice to break the law, it was automatically proof of bad moral character, while other crimes were treated more leniently under U.S. immigration law. More recently, however, USCIS has found convictions to be evidence of bad moral character even when a “knowing and intentional choice to break the law” is not required for the criminal conviction.
Convictions That USCIS Usually Won’t Find to Show Lack of Good Moral Character
The single most common violation of the law in the U.S. is speeding. The N-400 application for naturalization requires you to list any and all arrests, citations, detentions, charges, and convictions, for any crime or offense—including traffic tickets.
Fortunately, according to courts that have interpreted U.S. immigration law, you don’t have to be perfect to be found to be of good moral character. So if your only conviction during the good moral character period is for speeding, you should still be able to naturalize. Other minor traffic tickets will also normally not be considered a violation of good moral character.
Multiple Convictions and Good Moral Character
If you have more than one criminal conviction, even if one or more of them are minor, your case is more complicated. There are two primary reasons for this. The first is that even a minor violation during the good moral character period allows USCIS to consider your entire record, not just the good moral character period.
Say you had a DUI conviction six years ago. You had no arrests or problems for four years, but last year you pled guilty to fishing without a license. By itself, one minor offense within the good moral character period normally won’t cause USCIS to find that you are of bad moral character. But what it does do is make it possible for your examiner to look at your record outside the good moral character period—that is, further back in time than the typically required five years—to see whether you have a pattern of bad moral character. Even though your DUI conviction happened more than five years ago, the examiner will also consider it in deciding whether you have demonstrated good moral character. At the very least, your examiner will want to know whether you were drinking when you were charged with fishing without a license; if so, the examiner may decide that you have a pattern of not respecting the law. On the other hand, if you were not drinking, or if you got a speeding ticket instead of a ticket for fishing without a license, the immigration officer has the discretion to decide that this single conviction doesn’t mean you lack good moral character, and approve your case.
The second reason that multiple convictions, even minor ones, can lead to a finding that you lack good moral character is where those convictions show a pattern of disregard for the law. For instance, if you have several speeding tickets in the same year, or three or four speeding tickets every year for two or three years, or two tickets for driving without insurance, the USCIS examiner may conclude that you didn’t learn your lesson the first or even the second time, and that you don’t respect and obey the law.
USCIS tends to reserve this type of finding for the most egregious scofflaws, and usually even four or five traffic tickets during a five-year good moral character period will not cause your application to be denied
Immigration Officers Have Discretion to Judge Your Good Moral Character
It can be difficult to predict when one or more minor convictions within the good moral character period will result in an naturalization application being denied. There are no absolute rules—the law gives USCIS discretion to decide whether or not you have proven that you have good moral character.
“Discretion” means that USCIS and its officers can make up their own minds. USCIS trains its officers to weigh all factors, good and bad. But discretion means that all sorts of considerations can affect the decision. Remember, even one conviction during the good moral character period will allow the examiner to consider your entire record, both during and before the good moral character period.
“Discretion” also means that where USCIS draws the line between convictions that are automatically evidence of bad moral character and convictions that are not is subject to change, as society changes. For example, 30 or 40 years ago, a DUI would not have been a serious conviction for good moral character purposes. Now it is.
Today, a minor conviction might be a speeding ticket, a child-restraint violation, driving without insurance, fishing without a license, or creating a nuisance on your property. But maybe in 20 years, if society becomes convinced that only negligent parents would fail to properly secure their children in a car, a child restraint violation will become evidence of bad moral character.
Will Waiting Five Years Always Result in Approval?
If you do not want any risk that your naturalization application might be denied, or if you don’t want the immigration officer to consider any of your convictions, you will need to be conviction-free for the entire good moral character period, and you will need to make sure you haven’t committed a crime that might make you deportable. That can mean waiting five years from the date of your arrest before submitting your application for U.S. citizenship—or not applying at all.
On the other hand, that doesn’t mean no one should apply within five years of a crime. To make a personal decision as to whether the risk of denial is worth the effort of applying, consult an experienced immigration attorney