Limited Consideration of Past Crimes in Citizenship Cases
Posted Oct 14, 2005
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The Ninth U.S. Circuit Court of Appeals recently issued an opinion that, in a naturalization (citizenship) case, a criminal record that occurred more than five years prior to filing for citizenship cannot be the sole reason for a denial of naturalization.
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Legal Standard of Good Moral Character for Naturalization
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It is necessary in naturalization cases for the applicant to show good moral character (GMC). A demonstration of good moral character must be evident for the immediately preceding 5-year (or 3- year for certain persons married to U.S. citizens) "statutory period" of permanent residence required for eligibility for naturalization. This good moral character must continue until naturalization. The particular case examined by the Court involved behavior occurring more than five years prior to the application for naturalization.
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USCIS Interpretation of GMC
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Under long standing regulations, the U.S. Citizenship and Immigration Services (USCIS) can look at a past criminal record in determining good moral character, even if the crimes were outside of the 5- (or 3-) year period. The regulation refers to reviewing the earlier conduct if the behavior during the 5- (or 3-) year period does not indicate that there has been a reform of character. The 9th Circuit recognized that the controlling regulation indicates that such prior acts should be considered only if there is otherwise proof that the applicant's character has not been reformed during the 5-year period. Thus, the court held that the case cannot be denied simply based upon the fact of an old conviction, without more.
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It should be noted that there are some very serious crimes that create a permanent bar to naturalization. This case does not change that bar. It should also be noted that some crimes make the individual removable from the United States. Thus, anyone with a criminal history should try and understand the potential risks by speaking with a qualified, experienced immigration attorney before filing for naturalization.
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Conclusion
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This case will impact those filing cases subject to the jurisdiction of the Ninth Circuit Court of Appeals. Under this case, if one waits long enough and maintains a clean record, that person should be eligible for naturalization. It is noteworthy that the regulation refers to a "reform of character." It is often helpful to be able to show that the individual has addressed whatever the problem was that led to the criminal case. Sometimes alcohol or drug treatment is appropriate. Anger management or other therapy may be needed. Proof that the individual is leading a clean life, with a good work or school record, involvement in positive community or volunteer activities and similar proof can be helpful. While this case is limited to states within the jurisdiction of the 9th Circuit, it could be helpful in making an argument in other states, as well. Moreover, the ruling in the case may not be immediately implemented at the local USCIS offices. It is important, therefore, to be prepared with proof of the law when attending naturalization and other interviews.