How a Criminal Conviction or Charge Can Affect Path to Citizenship

February 15, 2013 | Cancellation of Removal, Criminal Convictions, Naturalization

Q.  I am a permanent resident. I was detained and placed in removal proceedings because of two old marijuana convictions. The immigration judge granted me cancellation of removal, giving me the chance to continue with my life here. I have been a permanent resident for 17 years and employed. I have no felony convictions. Can I become a U.S. citizen? Thank you.

A.  Yes. Provided that you have maintained good moral character for the past five years, you can naturalize. Three years if you have been married to and living with the same U.S. citizen spouse.

Let’s first explain “cancellation of removal.” INA section 240A(a) Cancellation of removal is available, generally, to legal permanent residents who have had legal residence for five years, who have lived in the United States for at least seven years. Note that the seven years must be prior to the beginning of removal proceedings by the issuance of an NTA, a Notice to Appear, or the commission of certain crimes. and have not been convicted of an aggravated felony. “Aggravated felony” has a special meaning under immigration law. An “aggravated felony” under immigration law includes many, but not all felonies, and some misdemeanors.

An Immigration Judge can grant cancellation of removal if he/she feels that the lawful permanent resident merits a favorable exercise of discretion because the positive factors about the immigrant outweigh the negative factors. Cancellation of removal does not change the date legal permanent residence status was granted.

A person granted cancellation of removal is eligible to apply for naturalization. The Board of Immigration Appeals (BIA) has said that a person who has been granted cancellation of removal, cannot again be charged with deportability based on the same crime, but that the prior crimes do not completely disappear from the record for immigration purposes. An applicant for naturalization must show good moral character during the statutory period, either the five-year period immediately before filing the naturalization application (or the three–year period if applying based on being married to and residing in marital union with the same U.S. citizen spouse for the past three years). Certain conduct during this period will bar or stop the applicant from naturalizing. USCIS can look beyond the statutory period to determine good moral character if the past conduct or acts appear relevant to the applicant’s present moral character. USCIS has the right to deny naturalization in their discretion.

If your two “old” marijuana offenses were resolved through the grant of cancellation of removal and you have no other offenses within the past five years (or three years of married to and living in marital union with the same U.S. citizen) and you are otherwise eligible to naturalize, then you should be able to proceed with a naturalization application. The fact that you were in removal proceedings during the five- (or three-) year period does not prevent you from demonstrating good moral character.

A person charged or convicted with a crime should always have their court records reviewed by an immigration attorney or Board of Immigration Appeals (BIA) accredited representative before filing for naturalization. You can visit one of our immigration centers and make an appointment to see if you are meet all the eligibility requirements to apply for citizenship.