Criminal Convictions that May Prevent You from Becoming a US Citizen

If you are a green card holder applying for citizenship and have ever been arrested, you must disclose it on Form N-400, application for naturalization, even if the case was dismissed by a judge. A fingerprint check by immigration officials will likely reveal any arrests or criminal convictions. When applying for citizenship through naturalization, one of the main questions is whether the applicant has “good moral character” (GMC). Below is a brief summary of the types of criminal convictions that may bar you from becoming a naturalization citizen either permanently or temporarily, as well as the crimes that may delay qualifying for citizenship due to a finding that you lack good moral character.

Permanent Bar

Some criminal convictions will permanently bar applicants from attaining citizenship, unless the instance involves a refugee or asylee that is the victim of unfair government prosecution. The crimes that result in an automatic and permanent bar from citizenship include murder and any “aggravated felony” committed on or before November 29, 1990. In addition, this bar is also likely to trigger removal proceedings.

An “aggravated felony” can refer to many different crimes. In addition to the more predictable ones, such as rape, murder, and drug trafficking, it also includes criminal convictions that are classified as misdemeanors in certain local and state courts, as long as they resulted in a prison term of at least one year. For example, resisting arrest and driving under the influence have, in some cases, been considered aggravated felonies.

In addition, any applicant who ordered, incited, assisted, or otherwise participated in either the persecution of any person or persons in association with the Nazi Government; who has ordered, incited, assisted, or otherwise participated in genocide; who has committed, ordered, incited, assisted, or otherwise participated in the commission of any act of torture or any extrajudicial killing; or, who was responsible for or directly carried out particularly severe violations of religious freedom while serving as a foreign government official is permanently barred from establishing GMC for naturalization.

What is or is not considered an aggravated felony is often a point of contention, so we highly recommend you see an immigration lawyer if you have a criminal record that you believe could affect your chances of attaining citizenship.

Temporary Bar

Certain crimes will temporarily bar applicants from citizenship. Below is a summary of these crimes:

• Applicant operated a commercial vice enterprise (i.e. worked as a prostitute, ran a call-girl ring, or sold pornography)
• Applicant participated in illegal vice activities (i.e. hiring a prostitute).
• Applicant has been convicted of or admitted to a crime involving moral turpitude (i.e. fraud)
• Applicant spent 180 days or more in jail or prison for any crime
• Applicant committed any crime related to illegal drugs other than a single offense involving 30 grams or less of marijuana
• Applicant has been convicted of two or more crimes, the combination of which totaled a prison sentence of five or more years
• Applicant gets majority of income from illegal gambling or has been convicted of two or more gambling crimes

If you have any criminal convictions, we recommend you see a lawyer to determine whether you will have a problem applying for citizenship, and/or how long you should wait after your date of conviction to apply for citizenship.

If you have not committed any of the crimes discussed above, the good news is that you will not receive an automatic ban. However, USCIS can still use its discretion on a case-by-case basis to claim that an applicant lacks good moral character by considering factors such as whether or not you were cooperative with law enforcement and the courts, whether you were intoxicated during the crime, whether anyone was injured, or whether you were carrying an illegal weapon. What is considered reckless or intentional behavior is often judged more harshly.

Again, this area of law is very complicated and it is advisable that you consult both an experienced immigration attorney and an experienced criminal defense attorney before pleading to any charges that may affect your immigration rights. The table below provides insight into what are considered aggravated felony convictions under federal immigration law.

“Aggravated Felonies” in the Immigration Context
Aggravated Felony	Citation
Murder, Rape, or Sexual Abuse of a Minor	INA 101(a)(43)(A)
Illicit Trafficking in Controlled Substance	INA 101(a)(43)(B)
Illicit Trafficking in Firearms or Destructive Devices	INA 101(a)(43)(C)
Money Laundering Offenses (over $10,000)	INA 101(a)(43)(D)
Explosive Materials and Firearms Offenses	INA 101(a)(43)(E)(i)–(iii)
Crime of Violence (imprisonment term of at least 1 yr)	INA 101(a)(43)(F)
Theft Offense (imprisonment term of at least 1 yr)	INA 101(a)(43)(G)
Demand for or Receipt of Ransom	INA 101(a)(43)(H)
Child Pornography Offense	INA 101(a)(43)(I)
Racketeering, Gambling (imprisonment term of at least 1 yr)	INA 101(a)(43)(J)
Prostitution Offenses (managing, transporting, trafficking)	INA 101(a)(43)(K)(i)–(iii)
Gathering or Transmitting Classified Information	INA 101(a)(43)(L)(i)–(iii)
Fraud or Deceit Offenses or Tax Evasion (over $10,000)	INA 101(a)(43)(M)(i), (ii)
Alien Smuggling	INA 101(a)(43)(N)
Illegal Entry or Reentry by Removed Aggravated Felon	INA 101(a)(43)(O)
Passport, Document Fraud (imprisonment term of at least 1 yr)	INA 101(a)(43)(P)
Failure to Appear Sentence (offense punishable by at least 5 yrs)	INA 101(a)(43)(Q)
Bribery, Counterfeiting, Forgery, or Trafficking in Vehicles	INA 101(a)(43)(R)
Obstruction of Justice, Perjury, Bribery of Witness	INA 101(a)(43)(S)
Failure to Appear to Court (offense punishable by at least 2 yrs)	INA 101(a)(43)(T)
Attempt or Conspiracy to Commit an Aggravated Felony	INA 101(a)(43)(U)

Client Reviews

General Resources – Criminal Convictions

• List of Crimes of Moral Turpitude (State Department)
• Immigration Consequences of Criminal Convictions – Office of Immigration Litigation (Revised November 2010)
• Criminal and Deportation Defense – National Immigration Project of the National Lawyers Guild
• Defending Immigrants
• Tooby’s Guide to Criminal Immigration Law (230 pages)
• Padilla Resources Page (American Bar Association)
• Attorney General Eric Holder Vacates Matter of Silva-Trevino (4-10-15)
• Practice Advisory: Descamps v. U.S. and the Modified Categorical Approach (6-26-13)
• Seeking Post-Conviction Relief under Padilla v. Kentucky after Chaidez v. US (2-28-13)
• ICE Targets Fewer Criminals in Deportation Proceedings (11-05-11)
• Duty of Criminal Defense Counsel Representing An Immigrant Defendant After Padilla v. Kentucky (IDP Practice Advisory)
• Retroactive Applicability of Padilla v. Kentucky – National Lawyers Guild (6-24-10)
• Lopez v. Gonzales Practice Advisories and Media Materials (Immigrant Defense Project)
• DOJ/EOIR Proposed Regulation Implements St. Cyr v. INS (8-13-02)
• EOIR FAQ: §212(c) Regulations (8-13-02)

Case Decisions – Criminal Convictions

• Matter of J-H-J, 26 I&N Dec. 563 (BIA 2015) (5-12-15)
• Matter of Montiel, 26 I&N Dec. 555 (BIA 2015) (4-17-15)
• BIA Interim Decision in the Matter of Martin Chairez-Castrejon: Firearms Offense vs. Aggravated Felony (7-24-14)
• BIA Decision in the Matter of Patricia Pinzon: Entry Using a False Claim to US Citizenship Does not Constitute an Admission and is Considered a CMT (8-19-13)
• Judulang v. Holder US Supreme Court – Green Card Holder Eligible to Apply for 212(c) Waiver Whether Conviction is for a Removable or Inadmissible Ground (12-12-11)
• Padilla v. Kentucky – US Supreme Court – Duty of Counsel in Criminal Proceedings to Warn Client About Deportation Consequences of Plea (3-31-10)
• AAO Decision Regarding Use of Marijuana (6-17-09)
• Nijhawan v. Holder – U.S. Supreme Court. 129 S. Ct. 2294 (6-15-09) – Whether a Particular Theft Crime is an Aggravated Felony
• Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008) – Application of “Modified Category” Approach to Crimes of Moral Turpitude
• Gonzales v. Duenas-Alvarez U.S. Supreme Court (1-17-07) – A Theft Offense Includes the Crime of Aiding and Abetting a Theft Offense
• Lopez v. Gonzales – When is a Drug Offender an Aggravated Felon? – U.S. Supreme Court (12-06-06)
• Leocal v. Ashcroft – DUI Causing Bodily Harm is Not a Crime of Violence – U.S. Supreme Court (11-09-04)

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