New York Lawyer's Legal Updates

Citizenship And Arrest

Author: Citizenship attorney Alena Shautsova

Citizenship is, perhaps, the ultimate goal of any Immigrant. Generally, to qualify for citizenship through naturalization, a person has to hold a permanent resident status for 3 (if the permanent residency was based on marriage to a US citizen), or 5 years.

An applicant should use form N400 and submit supporting documents, which consists often of a copy of the permanent resident card and 2 passport style photos.

An application for naturalization/citizenship is more complicated when an applicant has a history of arrests/convictions.

First, in every case of criminal history, an applicant should consult with an attorney. Why? Because for Immigration purposes, depositions that did not result in criminal convictions may nevertheless be regarded convictions. For example, in New York, there is a very common disposition called "ACD" or an adjudication in contemplation of dismissal. Normally, such a disposition would not have negative consequences for the subject. However, if a person admitted on a record that he committed a crime, the formal ACD would not matter, and DHS would still find a person "convicted".

Second, for each arrest a person has had in his life, he would have to inform DHS. And, as one can conclude from the previous paragraph, the presentation would matter… The Immigration law and the way courts and administrative officers look at it is changing and developing all the time. If, let’s say, five years ago, a particular criminal conduct was not considered an aggravated felony, or at least there was no a decision that would clearly regard it as such, and today there is such a decision, an applicant for naturalization should know about it.

Finally, because Immigration law is changing, it is subject to different interpretation. Sometimes, a skillful interpretation and presentation can save one’s chances of becoming a citizen. It is especially true for convictions that can be construed as "aggravated felonies". A person who is convicted of a firearm possession, for example, is eligible for citizenship. However, somebody who is convicted of smuggling of firearms will be permanently barred from receiving this Immigration benefit.

One should understand, that even if he/she somehow "gets lucky" and receives citizenship without "fixing" the bar to citizenship (let’s say an adjudication officer lacked experience and rendered a positive decision), there is always a possibility that the United States sooner or later, will "take the citizenship status back". It is better to vet all the issues prior to the adjudication, than to rely on a chance.

During the application process, a person who has been arrested would have to present dispositions for each arrest, and/or explanations of the arrests. DHS requires originals to be submitted or brought with the person to the interview. It is a bad idea to try to "hide" the arrest: an applicant must answer all the questions truthfully, plus the government has access to all the records anyway.

A common question in many situations is: I have been arrested but I was not fingerprinted, do I need to disclose the incident? The answer would be, yes, you have to disclose it. If you were not fingerprinted after the arrest, chances are that the reason for the arrest was harmless: either it was a mistake, or something so insignificant that it would not have any consequences.

Another common question is: would I be deported if I disclose my arrests/convictions? The answer to this question would depend on the convictions and record of convictions. Any Immigration practitioner who, after analysis, would see that the applicant may face a risk of deportation/removal, would advise his/her client accordingly. A record of conviction would include a certificate of disposition, minutes of guilty plea, sometimes, probation report/recommendation.

The bottom line is that a prior arrest is like a dental problem: you might not want to face it, but it is better to address it as soon as possible than to let it later "address" you...

16 May 2016
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