Becoming a U.S. citizen is a complex process, and legal issues like being arrested can make it even more complicated. If you are a Legal Permanent Resident (LPR) and have been arrested after obtaining your permanent residency but not formally charged, there are important things you need to know before starting the naturalization process.

1. The Paramount Importance of Good Moral Character (GMC)

GMC is a cornerstone of the naturalization process. Even if you were not charged following an arrest, the very fact of the arrest could come under scrutiny. The GMC evaluation considers:

Statutory Evaluation Period: The duration for which an applicant must demonstrate their GMC depends on the naturalization provision they are filing under. In general, the GMC statutory period for an applicant filing under the general naturalization provision starts 5 years prior to the date of filing. For certain spouses of U.S. citizens, the statutory period starts 3 years prior to the date of filing. The period for certain service members or veterans to demonstrate GMC starts 1 or 5 years from the date of filing, depending on the military provision. Regardless of the provision, the applicant must show they have maintained GMC until the time of naturalization.

It is important to note that the United States Citizenship and Immigration Services (USCIS) evaluates not only an applicant's behavior during the statutory period but also their past conduct leading up to it. Consequently, previous actions can impact an applicant's ability to demonstrate good moral character, particularly if their current behavior does not reflect a positive change or if their prior conduct is relevant to their present moral character. If USCIS determines that the applicant cannot demonstrate GMC, their naturalization application will be denied.

2. Having an arrest record can negatively impact your chances of establishing good moral character.

While an arrest without a formal charge might seem inconsequential, it can have implications.

When applying for naturalization, the N-400 form requires you to disclose any criminal records you may have. It specifically asks if you have ever been arrested, cited, or detained by any law enforcement officer, including immigration officials or members of the U.S. armed forces. In  if you must answer yes to this question, you will have to provide additional information explaining the reason, time, and circumstances of your arrest, citation, detention, or charge. Even if you didn't disclose this information, USCIS will likely discover it through a comprehensive background check conducted across various databases, at least for arrests that occurred within the U.S.

Transparency plays a crucial role during the citizenship interview, particularly when asked about past arrests. Providing false testimony under oath can result in a conditional bar to establishing good moral character. However, it is also important to answer questions skillfully. Even if you were not formally charged for an arrest, it does not necessarily mean that no wrongdoing occurred in the past. Whether you committed an offense requires a complex legal analysis to see whether each element of the offense has been committed. Should you admit to committing an offense, even without being officially charged, it could create obstacles in establishing good moral character.

When you are explaining the circumstances surrounding your arrest, it is important to keep in mind that USCIS officers may also consider whether you have established good moral character (GMC) for other unlawful acts. An officer may determine that an applicant does not have GMC due to the commission of an unlawful act which can be evidenced through admission, conviction, or other reliable evidence in the record. USCIS officers decide on a case-by-case basis whether an unlawful act committed during the statutory period is one that negatively impacts moral character.

There is no comprehensive list of unlawful acts in the INA or regulations. However, case law provides examples of unlawful acts that can bar good moral character. USCIS has provided a non-exhaustive list:

• Bail jumping;
• Bank fraud;
• Conspiracy to distribute a controlled substance;
• Failure to file or pay taxes;
• Falsification of records;
• False claim to U.S. citizenship;
• Forgery-uttering;
• Insurance fraud;
• Obstruction of justice;
• Sexual assault;
• Social Security fraud;
• Unlawful harassment;
• Unlawfully registering to vote;
• Unlawful voting (discussed below); and
• Violating a U.S. embargo

3. Here are nine important things you should do to navigate these challenges and come out successful.

1. Don't Be Discouraged: Do not abandon the idea of naturalization simply because you have a criminal record. Not all criminal records will bar you from Good Moral Character (GMC). Achieving naturalization can offer a level of protection; as a Lawful Permanent Resident (LPR), you can be placed in removal proceedings if you commit certain offenses. However, this risk goes away for offenses committed after becoming a U.S. citizen.
2. Fight for your rights: When you are accused of a crime, it is essential to fight for your rights and stand your ground. Don't let fear or pressure lead you to accept a plea deal without fully comprehending the potential immigration consequences. It is crucial to have competent defense counsel who can effectively represent you and minimize any potential immigration consequences. A rushed guilty plea can have long-lasting impacts on your immigration status and your chances of naturalization.
3. Seek Expertise: Consult with an experienced immigration attorney, especially if you have a criminal record. They can provide clarity on the implications of past convictions on your citizenship application and suggest the best way forward.
4. Know the details: Familiarize yourself with your criminal record, diving into the specifics of each incident, its outcomes, and any subsequent rehabilitation steps.
5. Be consistent: Your statements on the application and during the interview should align. Inconsistencies can lead to suspicions and potential accusations of false testimonies.
6. Gather Documentation: Obtain all relevant documentation related to your criminal history, like court dispositions and probation records. Having a comprehensive paper trail not only illustrates transparency but also provides a clear narrative that can be vital for case evaluations.
7. Understand the Stakes: Be aware that certain criminal records might jeopardize not just the naturalization process but can also result in removal proceedings. It's crucial to evaluate the risks before initiating the application.
8. Prepare for In-depth Scrutiny: A criminal record naturally invites additional examination. Preparing mentally for thorough questions and preparing thorough answers can help you manage the situation with confidence and accuracy.
9. Stay Updated: Immigration policies and norms can change. Regular consultations with legal professionals can ensure you're updated about alterations that could influence your eligibility.

Conclusion

In summary, while an arrest adds layers of complexity to the citizenship process, it doesn’t automatically preclude you from becoming a U.S. citizen. The key is understanding the nuances of the immigration system and preparing accordingly. Looking for guidance on your journey to U.S. citizenship? The Law Offices of Sabrina Li can help. We have extensive experience helping applicants overcome various challenges. Contact us today for assistance.