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.
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.
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:
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.