Naturalization & Criminal Issues
There are two ways to become a U.S. citizen. One is by operation of law, which does not require any affirmative action by the individual. The other is by naturalization, which requires an affirmative application and satisfaction of the eligibility requirements.
One of the eligibility requirements is that the Applicant must show that “good moral character” exists during the five years immediately preceding the filing of the application and continuing through the administration of the oath of allegiance (three years if residing in a marriage to a USC or VAWA adjustment). USCIS may, however, take into account prior conduct and acts if the conduct during the statutory period does not show a reform of character from an earlier period or the prior acts appear relevant to a determination of present moral character. There is no specific statutory definition of “good moral character”.
There is a statutory list of bases for finding a lack of good moral characterduring the statutory period. The list includes: habitual drunkards, those incarcerated for 180 days or more, certain gambling related issues, those who have given false testimony, certain groups under INA §212(a) which include crimes involving moral turpitude (CIMT) and multiple criminal convictions, and those who have committed aggravated felonies.
It should be noted that the lack of good moral character is not a specific ground for inadmissibility or removal, but some of these grounds have counterparts in other statutory provisions of the Immigration and Nationality Act that can trigger Removal proceedings. Care should be taken to evaluate the risks of making application for Naturalization where there are criminal issues in applicant’s past.
Some of the most common questions regarding criminal issues are Record Expungement, Spousal Abuse Convictions and DUI Convictions.
CRIMES INVOLVING MORAL TURPITUDE (CIMT)
A noncitizen is subject to removal based on a conviction of a CIMT committed within five (5) years after admission and for which a sentence of one year or longer may be imposed.
Additionally removal may be based on one or more convictions of more than one CIMT occurring at any time after admission.
Driving Under the Influence. A simple DUI is usually not a crime involving moral turpitude. They are usually regulatory offenses that do not have an intent or knowledge requirement. Multiple convictions are not CIMTs by themselves, but, may not show reform from an earlier period in the overall determination of good moral character, if they are close to the statutory period. Be aware, the law of a particular jurisdiction could change making the third offense a CIMT or even an aggravated felony, so a sentence of more than one year should be avoided.
A DUI causing bodily injury is not a CIMT, but a felony DUI involving great bodily injury or death may be an aggravated felony where the sentence is one year or more.
Spousal Abuse. There are two (2) statutes in California. One is Battery of a spouse; the other is spousal abuse. The former is a misdemeanor; the latter can be a felony.
Crimes of domestic violence may or may not be considered CIMTs. Simple battery is not a CIMT. Battery on a spouse has been held by courts to be a CIMT because a special relationship of trust exists between offender and victim. Under statutes that apply to former spouses, cohabitants, in-laws or biologic parents, the CIMT standards may not apply under the statutory elements of the offense. Under those circumstances the statute may be divisible.
Sometimes the fact(s) necessary to allow consideration of an offense of domestic or family violence is not contained in the record of conviction. USCIS (formerly INS) is authorized to administer the immigration laws and they can – and do – determine what constitutes a CIMT. USCIS has asserted that assault of victims having that “special relationship” with the offender may be a CIMT on the basis the act of violence is “different” from that between strangers.
Sexual or physical abuse of women or children has been almost uniformly considered to involve a crime of moral turpitude. Abandonment of children is a form of abuse which can be a CIMT id the child is rendered destitute. Solicitation of a lewd act (including prostitution or homosexual conduct) has been held to be a CIMT under the Calif. Penal Code.
There must be a conviction in order for there to be an immigration consequence for a noncitizen lawful resident. Convictions which have beenexpunged are still considered convictions for immigration purposed. State action annulling, setting aside, vacating, cancelling, expunging, dismissing or discharging (and similar terms) that acts to erase the record of guilt for an offense, are not erased for immigration purposes.
Only a post conviction sentence modification is given effect in immigration proceedings. This involves having the original sentence changed so that a new one replaces the old one. This form of relief almost always requires action by a criminal law attorney in State Court.
The Tran Law Group lawyers encourage you to schedule a free consultation online or call at (714) 702-1437 to discuss your case with an experienced Santa Ana, California lawyer today.