FACTS:
A client living in Virginia became eligible for US Citizenship after 5 years of US Permanent Residency. He was concerned that his case might not be approved because he had several criminal convictions including a conviction under Virginia Code 18.2-250.1 (marijuana under 30 grams) and a conviction under 18.2-460 (obstruction of justice) as well as an assault charge which was dismissed. Despite, this lengthy criminal history, our office assured him that the law was on his side and that he could apply for citizenship.
After a lengthy wait, he was finally interviewed by the USCIS office in Fairfax, Virginia. Despite explaining the circumstances surrounding his criminal convictions and demonstrating that he had been a US Lawful Permanent Resident for more than 30 years, USCIS denied the citizenship application. Our office advised the client to appeal (by filing a Form N-336, Request for Hearing on a Decision in Naturalization Proceedings) and the client did.
THE LAW:
A person seeking naturalization must meet some basic requirements including:
- Be at least 18 years old at the time of filing Form N-400, Application for Naturalization.
- Be a permanent resident (have a “Green Card”) for at least 5 years.
- Show that you have lived for at least 3 months in the state or USCIS district where you apply.
- Demonstrate continuous residence in the United States for at least 5 years immediately preceding the date of filing Form N-400.
- Show that you have been physically present in the United States for at least 30 months out of the 5 years immediately preceding the date of filing Form N-400.
- Be able to read, write, and speak basic English.
- Have a basic understanding of U.S. history and government (civics).
- Be a person of good moral character.
- Demonstrate an attachment to the principles and ideals of the U.S. Constitution.
USCIS acknowledges that a single conviction for under 30 grams of marijuana does not preclude a finding of good moral character:
But, USCIS may still consider “unlawful acts” which were committed during the statutory period under:
We therefore had to argue that these convictions were not sufficiently “bad” to mean that the Applicant should be denied naturalization. This analysis is case-by-case and required a balancing of multiple factors including:
- Family ties and background;
- Absence or presence of other criminal history;
- Education;
- Employment history;
- Other law-abiding behavior (for example, meeting financial obligations, paying taxes);
- Community involvement;
- Credibility of the applicant;
- Compliance with probation; and
- Length of time in United States.
Importantly, USCIS has updated their policy manual to reflect that recent decriminalization of marijuana at the state level DOES NOT change their analysis:
Conditional GMC Bar Applies Regardless of State Law Decriminalizing Marijuana
A number of states and the District of Columbia (D.C.) have enacted laws permitting “medical” [19] or “recreational” [20] use of marijuana. [21] Marijuana, however, remains classified as a “Schedule I” controlled substance under the federal CSA. [22] Schedule I substances have no accepted medical use pursuant to the CSA. [23] Classification of marijuana as a Schedule I controlled substance under federal law means that certain conduct involving marijuana, which is in violation of the CSA, continues to constitute a conditional bar to GMC for naturalization eligibility, even where such activity is not a criminal offense under state law. [24]
Such an offense under federal law may include, but is not limited to, possession, manufacture or production, or distribution or dispensing of marijuana. [25] For example, possession of marijuana for recreational or medical purposes or employment in the marijuana industry may constitute conduct that violates federal controlled substance laws. Depending on the specific facts of the case, these activities, whether established by a conviction or an admission by the applicant, may preclude a finding of GMC for the applicant during the statutory period. An admission must meet the long held requirements for a valid “admission” of an offense. [26] Note that even if an applicant does not have a conviction or make a valid admission to a marijuana-related offense, he or she may be unable to meet the burden of proof to show that he or she has not committed such an offense.
THE RESULT:
Knowing the law and standing up for your right to become a US Citizen is essential. After filing an N-336, our client was granted a second interview with USCIS Washington Field Office in Fairfax, Virginia. After pointing out the law and making it clear our office was not backing down, USCIS approved the citizenship and granted the application!
DISCLAIMER: All Case Results published here depend on specific facts and legal issues unique to the case. It is impossible to guarantee any results.
