NATURALIZATION AND REMOVAL
When a non-citizen wants to become a United States citizen, that person must undergo a process known as naturalization. There are many benefits in becoming a U.S. citizen. A U.S. citizen can travel more freely; he can vote; and he can apply for more jobs, including government positions. Citizens are more eligible to apply for public benefits such as full Social Security, Supplemental Security Income, food stamps, and have access to certain loans, mortgages and scholarships. Finally, U.S. citizens would not be subject to deportation or removal proceedings.
WHAT IS REQUIRED FOR SOMEONE TO BECOME NATURALIZED?
An immigrant must be older than 18, be a permanent resident for 5 years (or 3 years for those who have gained permanent residency through a U.S. spouse), demonstrate good moral character, prove continuous residence and physical presence in the U.S., and be able to read, write and speak basic English (this last requirement may be waived in certain cases such as if the person has a permanent impairment that prevents them from being able to learn and understand English). In addition, the permanent resident must file an N-400, undergo an interview, pass a civics and ethics test, and take the Oath of Allegiance to the United States.
WHEN IS NATURALIZATION NOT THE BEST OPTION?
Naturalization may not be the best course for every permanent resident. The naturalization application is usually the last time for the immigration officials to review the immigrant’s case and determine both whether the person is eligible to naturalize and whether he is eligible to stay in the United States. Any inconsistencies in the naturalization application, such as evidence of immigration violations, criminal conduct or abandonment of his permanent residence status, may actually subject the immigrant to removal proceedings. Someone who is interested in becoming a U.S. citizen but is not sure of his eligibility should consult with an immigration attorney.
WHAT ACTS MAY BE SEEN AS VIOLATIONS OF IMMIGRATION LAW?
One of the most serious violations include immigration fraud, which may take many forms. Generally, if an immigrant has ever made a material misrepresentation on a form or to an immigration official, that may constitute fraud. This also includes nondisclosure of facts such as prior convictions or prior removal proceedings. In addition, immigration fraud can occur if the immigrant gained his permanent residency through fraudulent means. This can occur if the immigrant engaged in a fraudulent marriage in order to gain citizenship, for example.
In addition, an immigrant cannot make a false claim to U.S. citizenship (and derive a public benefit from that false claim). This can occur when an immigrant applies for a job, or seeks a loan/mortgage, or if the immigrant mistakenly registers to vote. In some cases, depending on the facts and the timing of the case, the immigrant can file for a waiver of his false claim, explaining the situation and why he made that claim. However, in other cases, particularly if the false claim to citizenship resulted in some financial loss to a victim, that act could be considered both immigration fraud and an aggravated felony. Some cases of immigration fraud may result in a mere denial of the N-400, if the fraud does not seem too severe. In other cases, however, removal proceedings may be issued, particularly if the facts suggest that the immigrant gained his permanent residency fraudulently or if the false claim to citizenship also results in an aggravated felony categorization.
WHAT CRIMES MAY LEAD TO REMOVAL?
Serious crimes such as murder, rape, drug trafficking, domestic violence, or acts involving moral turpitude (“bad character”) are likely to lead to removal proceedings . The analysis of whether a criminal record or the admission of a criminal act may lead to immigration consequences is often complicated, and an immigrant should consult an experienced immigration attorney to help assess whether naturalization is a viable option for him.
Generally, committing a criminal offense is especially likely to result in removal if the offense occurred during statutory period (5 years for most applicants, less for spousal applications and those in the military) before the application for naturalization is filed. However, immigration officials are allowed to look past the statutory period, and may even consider crimes committed before the immigrant ever arrived in the United States. Thus, in cases where the immigrant has been convicted of a crime, regardless of when the crime occurred, it would be wise to consult an immigration attorney before filing for an N-400.
Immigrants must keep in mind that even if they have complied with all the sentencing requirements from their crimes, they are still subject to immigration consequences up to and including removal. Even if a prior conviction has been expunged, USCIS will still be able to find records of it and are allowed to consider it. In addition, the immigrant may have had a sentence suspended, but it still counts towards the length requirement of a year’s imprisonment or more. If an immigrant has committed multiple offenses, even if they are all minor offenses, they may still find themselves subject to removal.
HOW CAN A PERMANENT RESIDENT ABANDON THEIR PERMANENT RESIDENCY?
A permanent resident who files for naturalization must show that he has maintained residence in the U.S. for 5 years before applying for naturalization, or for 3 years if he is the spouse of a U.S. citizen. He must also show that he was physically present for half that time. Finally, the immigrant cannot have interrupted their continued residence with an unapproved stay abroad of more than a year, even if they were otherwise present for more than half the statutory period. Some immigrants may qualify for an exception to these requirements, such as applicants who are employed abroad in the U.S. military or for a public international organization.
If an immigrant has not maintained residence or been physically present for the required amount of time, he generally would not face removal unless he has been shown to have abandoned his permanent residency. For example, this can be shown if the immigrant has left the country for over a year during the statutory period.
WHAT CAN AN IMMIGRANT WITH A TROUBLESOME HISTORY DO TO PROTECT THEMSELVES DURING THE NATURALIZATION PROCESS?
An immigrant who fits any of the described categories above should consult an attorney. The immigrant should be honest and thorough in discussing their history with their attorney, so that the attorney can give an accurate assessment of the case and prepare their client for the possibility of any unintended consequences of filing for a naturalization application.
WHAT CAN AN IMMIGRANT EXPECT IF THEY DO GET PLACED INTO DEPORTATION PROCEEDINGS DURING THE NATURALIZATION PROCESS?
In some cases, facts that come out during the naturalization application can result in removal and detention, but the immigrant may be eligible for a cancellation of removal hearing, which allows the immigrant to present reasons he feels he should not be removed. An immigrant who wants to file for cancellation of removal has to show that 1. he has been lawfully admitted for permanent residence for five years; 2. he has resided in the United states continuously for seven years after having been admitted in any status (including admission as a nonimmigrant); 3. he has not been convicted of an aggravated felony; and 4. he warrants a favorable exercise of discretion by the Attorney General. The seven-year period must be continuous and would end when the foreign national is either served with a Notice to Appear or when he has committed an offense that results in his inadmissibility or removability. To find out whether this form of relief from removal is a possible remedy for someone, it would be advisable to seek the help of an experienced immigration attorney.