Eligibility for Naturalization with Pending Criminal Charges
Posted Sep 22, 2001

A federal court in Virginia ruled that INS could not delay its decision on a naturalization application to await the outcome of pending criminal charges. When INS is reconsidering a denied application for naturalization, there is a statutory time limit, which cannot be extended in such instances. We provide below a description of the case, in the thought that it may be of interest to MurthyBulletin readers. While this was not a case handled by The Law Office of Sheela Murthy, it was publicly reported in the legal literature.

As background, when an Application for Naturalization (N-400) is denied, if the applicant feels s/he may be able to provide additional evidence to overcome the grounds for denial, s/he may file a request for a hearing on the application. In practice, this "hearing" takes the form of another interview, focusing on the particular issues that led to the denial and providing the opportunity to supplement the record. Under section 336(b) of the Immigration and Nationality Act, the final decision on the application must be made within 120 days of the hearing / re-interview date. If that deadline is not met, the applicant can file a lawsuit in federal District Court, and have the court decide the case.

In this particular case, the INS wanted to delay the decision because the applicant had been indicted for a criminal offense and the criminal case was still pending. The applicant therefore filed suit against INS. In court, INS argued that the naturalization application would not be complete until documentation of the criminal disposition was provided. It was INS' assertion that the 120-day time period would only begin once the file was complete.

However, the court held that since this documentation was not available within the 120-day period, the period could not be extended, and it was up to the court to make a final decision or send the case back to INS. The judge determined that INS had enough information to make a decision, and therefore directed INS to make a decision promptly.

In the case of this particular applicant, we are told that the criminal court set a hearing just a few days before the District Court ruling on the naturalization case. Since the criminal proceeding resulted in a conviction, the naturalization application was adversely affected.

Still, this case stands for the proposition that INS cannot delay review of a denied naturalization application to wait for the outcome of pending criminal charges.