Naturalization and Previous Charge of Knife Possession as a Minor

January 18, 2013 | Criminal Convictions, Naturalization

Q.  I was charged with possessing a knife, but the judge discharged the case. This happened when I was just 17. Will I have a problem becoming a U.S. citizen?

A.  If you have been a permanent resident five years from the time of your offense, the incident should not keep you from naturalizing unless you committed other offenses or were involved in other bad conduct during that time period. The period is three years if you have been married to and living with a U.S. citizen for those three years. Still, you should speak to an immigration law expert before applying for citizenship. Though you say that your case was discharged, USCIS may still consider you to have been convicted. U.S. immigration law defines conviction to include a situation where the person admitted guilt, or the facts warranting a finding of guilt, or pleaded nolo contendere (no contest) and a judge has ordered some form of punishment, penalty, or restraint. If those facts apply to you, then you were convicted of an offense. That’s true despite the discharge. Readers should note that if a judge dismisses a case, that dismissal means that under immigration law the person was never convicted. That’s different from the rules that apply for a conditional discharge.

You also state that you were 17 when your case was discharged. It is therefore possible that the authorities treated you as a “youthful offender” under criminal law instead of having a criminal conviction. Generally, under New York criminal law, you can be held responsible for crimes starting at age 16. You can be treated as an adult for certain serious crimes committed between ages 13 through 15. Certain youths, who are prosecuted in adult criminal court and are found guilty of committing a crime under the age of 19 may be treated as “youthful offenders.” If the criminal authorities determine that someone is a “youthful offender,” it means that the youth does not have a conviction for a crime or an offense. A person who is determined to be “youthful offender” therefore does not have a conviction for immigration purposes. Although the offense is not a conviction for immigration purposes, the immigration authorities may still consider the person’s conduct when they committed the offense (and which is the basis of the “youthful offender” determination) to determine whether the applicant demonstrated good moral character. I do not know from your question whether you had a “conviction” for immigration purposes or a determination that you were a “youthful offender.”

An applicant for naturalization must show good moral character (GMC) for the statutory period of five years (or three years if applying based on marriage to a U.S. citizen) through the time the applicant is sworn in as a U.S. citizen. Even if you were convicted or were determined to be a “youthful offender”, whether that conviction or “youthful offender” status shows a lack of good moral character depends on the nature of the offense. You say you were caught with a knife, but an immigration attorney or Board of Immigration Appeals (BIA) accredited representative would need to know the exact nature of the offense for which you were convicted or for which you were determined to be a “youthful offender.”

Any individual charged or convicted with a crime should have his court papers reviewed by an immigration attorney or BIA accredited representative. My guess is that you can naturalize, but to be sure, you need a careful review of your case by an expert.