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Listserv Q&A for
"Immigration Consequences of Criminal Convictions: Problems, Solutions and Best Practices"

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Question:

I do volunteer work at Cabrini Immigrant Services on Manhattan's lower East Side, and we have an individual who wishes to naturalize, but he was convicted of multiple counts of multiple criminal offenses 22 years ago, including Conspiracy, Arson (6 counts), and Reckless Endangerment. He was sentenced to 5-15 years (consecutive) for each count of arson, and ultimately was incarcerated for more than a year.

I've read the regs and the Bender's treatise, and it seems to me that even though this occurred prior to the statutory period of residence for establishing Good Moral Character, it is likely to be considered. I've also read confusing, and seemingly conflicting information about the consequences of incarceration - that incarceration for more than 180 days mandatorily precludes a finding of GMC regardless of whether it occurred within the statutory period (this wasn't clear to me in the regs.)
I recognize that one must also factor into the analysis whether he would have any relief from deportation.

Essentially, I'm just wondering if there is any chance that he may be able to naturalize. If so, I will refer him to capable counsel for assistance to pursue this. If not, we'll tell him not to file. I just don't want to tell him "NO" if there is some chance he could benefit.

Many thanks if someone could just advise "Yes, investigate it" or "No-forget it- out of the question under existing law!".

Answer by Norton Tooby:

I would say it's worth investigating. Even if the offenses are aggravated felonies, they occurred in about 1981, so they do not constitute permanent bars to proving GMC. I assume that the person may also be eligible for St Cyr 212(c) relief, unless he actually served a total of five years or more in prison. While the old convictions can be considered in deciding whether the person was of good character during the five year (or whatever) period for which GMC must be shown for naturalization, presumably they occurred so long ago the person can make a credible showing of rehabilitation. Even if removal proceedings are commenced, it would be possible to ask the IJ to terminate removal proceedings to allow naturalization to occur. Failing that, it would be possible to go into district court. I believe the 180 actual custody served bar to showing GMC requires the time to have been served during the period for which GMC must be shown.


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