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Applying for citizenship with criminal convictions in New York

Typically, in order to be eligible to apply for naturalization, an applicant needs to show the following: that they are at least 18 years of age, have been a lawful permanent resident for at least five years (3 years if residency was obtained through marriage to a US citizen and marriage is ongoing); have been physically present in the United States for at least half of five years prior to filing; must have lived for at least three months within the state where you file your application; and that they have been persons of good moral character for the five years prior to filing.

The good moral character requirement is a tricky one and involves many questions that should be reviewed by an immigration attorney. A few of the factors that could pose a problem to being able to establish good moral character include: failure to pay child support, failure to pay income taxes, failure to register for selective service (if you are a man who was lawfully in the U.S. between the ages of 18-26).

Another major issue in establishing good moral character is whether the applicant has any criminal record. If an applicant has committed murder at any time or an aggravated felony after November 1990, they are permanently barred from naturalization even if the conviction is many years old. Now, technically, if an applicant has not been arrested, convicted, on probation during the five years immediately preceding the naturalization application, many other prior arrests and convictions should not pose a big problem in the naturalization context. Unfortunately, however, that is not the way things have been working lately in the reality of the New York City District Office’s Naturalization Unit. The regulations concerning good moral character and naturalization do allow U.S. Citizenship & Immigration Services to “take into consideration, as a basis for its determination, the applicant's conduct and acts at any time prior to that period, if the conduct of the applicant during the statutory period does not reflect that there has been reform of character from an earlier period or if the earlier conduct and acts appear relevant to a determination of the applicant's present moral character.” But, USCIS should not rely only on criminal acts committed outside the five year period to deny an application based on a lack of good moral character. Also, if USCIS does use prior criminal acts to deny an applicant based on a lack of good moral character, USCIS is supposed to show how the previous bad moral character is tied to current conduct.

Recently, many naturalization applications have been denied in decisions that cite one of two reasons for the denial. The first frequent ground of denial is a finding that an applicant does not possess good moral character because of a very old conviction. USCIS rarely, if ever, cites a second reason from within the five year period to justify the poor moral character finding nor is a showing made to tie past bad character to current conduct. The second catch-all reason for a denial is a statement that the application cannot be approved because the applicant has committed crimes that make him deportable. Now, the naturalization unit could choose to place an applicant in removal (deportation) proceedings and then deny the application because a naturalization application cannot be approved while removal proceedings are ongoing. However, denying an application simply because a ground of deportability might exist is not in accordance with the law. Thus, the way that the unit is actually rendering these denials is unsupportable under the laws concerning naturalization.

Now, a denial can be appealed all the way up into the U.S. District Court. The problem that many applicants face and the reason that it is difficult to find a good test case to demonstrate the error in these types of denials is that, very often, the criminal act from the past does make the applicant removable (deportable) and there is a real worry that if they push their naturalization appeal that reprisals will be taken against them in the form of being served with a Notice to Appear before an Immigration Judge for removal proceedings.

Since only certain people with very specific factual scenarios are eligible for any forms of relief from removal each situation needs to be very carefully reviewed by an immigration attorney prior to a decision being made regarding either filing a naturalization application in the first place or appealing the denial of a naturalization application.

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