Marijuana, a DUI, and other crimes can disrupt the citizenship process. Good Moral Character (GMC) is a requirement that must be satisfied and there are some instances in which an applicant may never make a showing of GMC. Here we discuss Marijuana, DUI, and other bars to Citizenship that may make you sweat as you begin your application.
Permanent Bars to Citizenship
Applicants who trigger permanent bars to a good moral character will likely be unable to become naturalized, even if a significant period of time has passed since the triggering act or conduct. Even if the person has otherwise led an exemplary lifestyle. For a complete list of permanent bars, see https://www.uscis.gov/policy-manual/volume-12-part-f-chapter-4
For example, a crime of theft or violence is automatically considered an aggravated felony if the defendant was sentenced to at least 1 year in prison. Moreover, this category may include minor crimes like resisting arrest or a DUI in some cases. Exceptions may always apply, so it is important to discuss your case’s particularities with an experienced attorney.
Temporary Bars to Citizenship
Other types of convictions can result in a temporary bar. This means that the clock for the residency requirement restarts on the date the crime was committed. In most cases, the applicant will need to wait for 5 years after the date of the crime before applying for citizenship, or 3 years in some situations. However, USCIS always retains the discretion to deny your application if it feels that your criminal record shows that you do not have GMC.
Below I address 2 of our most frequent questions regarding citizenship and bars. Keep in mind, each case is unique. In order to provide you with a plan for your case, it is important to consult with our legal team so that we can design a strategy that will ensure a positive outcome for your case.
Case Example 1: I have been a Green Card holder for 20 years. 15 years ago, I received my first DUI, and 3 years after that, I received my second DUI. I have stayed out of trouble since then. Am I eligible for citizenship?
Short Answer: Probably, yes. The problem here is that there were 2 DUI’s. Although many years have passed, proving rehabilitation and providing generous amounts of evidence showing GMC will be the key to a successful outcome.
Long Answer: With a simple DUI on your record, it is theoretically possible to apply for and receive U.S. citizenship. However, the adjudicator has a lot of discretion and will consider several factors, including:
- Was it your first and only DUI?
- What was your blood alcohol content level?
- Was there any property damage?
- Was anyone hurt in an accident?
- Were you driving other passengers (including children) in your car?
This is where evidence of your good character since these arrests will come into play. The controlling case law involving DUI was decided in 2019 in Matter of Castillo Perez. Here, the BIA determined that two or more DUI convictions during the statutory period create a presumption that the applicant lacks GMC. Furthermore, being a “habitual drunkard” is a bar to showing GMC. (See 8 U.S.C. 1101(f).) An adjudicator could bring this up in an argument for a potential denial.
To overcome Castillo Perez, you will have to work hard to prove you are a person of GMC. This can be done in several ways, for example, by submitting proof of community service activities, continuous and active membership in a church or other religious organizations, receiving awards for your community involvement, and anything else that can highlight your positive character.
Case Example 2: I have been a green card holder for 5 years. Last year I was arrested for possession of marijuana and possession of paraphernalia. Can I apply for naturalization?
Short Answer: Maybe. It depends on the amount of cannabis you were arrested for. An offense relating to a single incident of possession of 30 grams or less of a substance containing cannabis will not be considered when determining the applicant’s GMC.
Long Answer: USCIS may deny applicants for citizenship who are charged with marijuana possession since this affects the person’s GMC. Even if the applicant is a resident of a state which legalized marijuana (yes, even recreationally), a possession charge can still be an obstacle to becoming a U.S. citizen. This is because federal law governs the immigration field and marijuana remains illegal at the federal level. The 30 grams or less exception protects only against charges related to possession of 30 grams or less of marijuana, or any crime connected to possession. This could include possession of paraphernalia (such as pipes or cigarette paper) with traces of marijuana even if the person did not possess actual cannabis.
What does “single offense” mean? Courts have interpreted the term single offense to include several charges originating from the same violation. This means that if a person is charged with several counts (such as possession of paraphernalia and possession of cannabis) arising from one violation, it will still be considered a single offense.
Explore Your Legal Options Today!
The legal team at Purdy Law understands that applying for U.S. Citizenship with a prior conviction may seem like an uphill battle, but we will work with you to create a plan that will lead to your best chances of approval.