Naturalization With a Prior Arrest and a Pending Removal Order
A client has been an LPR for six years and applies for naturalization. In 2021 he was arrested for domestic battery; the charges were dismissed after he completed a diversion program that included a guilty plea that was later expunged. In 2022 he was placed in removal proceedings after a DUI conviction, but the proceedings were administratively closed. He has traveled abroad four times since 2020, once for seven months to care for his ill mother. He has filed taxes every year but owes $4,200 to the IRS under an installment agreement. He asks whether he should disclose the arrest and whether he meets the good moral character and continuous residence requirements.
1. Analyze the good moral character issue and the disclosure obligations.
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Disclosure. The N-400 asks about arrests, citations, and convictions, including expunged and sealed records. The client must disclose the 2021 arrest and the diversion disposition. An expunged conviction is still a conviction for immigration purposes if there was an admission of guilt in open court or a plea; expungement does not erase it. Failure to disclose is a separate ground for denial and can support a finding of lack of good moral character for false testimony under INA §101(f)(6) - a permanent bar.
Domestic battery. A conviction for a crime of domestic violence is an aggravated felony and a bar to naturalization; a dismissal after diversion is not a conviction if there was no formal judgment of guilt. But the underlying conduct can still be considered in the good moral character analysis, and USCIS will examine the police report. Counsel should obtain the complete court disposition and the diversion agreement to determine whether an admission of guilt was made.
DUI. A single DUI is generally not a bar to good moral character, but it can be considered, and multiple DUIs or a DUI with aggravating factors may support denial. The pending removal proceedings, even if administratively closed, must be disclosed and may affect the case.
Conclusion. The client should disclose everything and prepare a detailed explanation. The domestic battery arrest is the greatest risk; counsel should evaluate whether the diversion involved a plea that could be treated as a conviction.
2. Analyze continuous residence and the tax obligation, and advise on timing.
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Continuous residence. An absence of more than six months but less than one year creates a rebuttable presumption of a break in continuous residence. The seven-month trip to care for his mother is in that window. The client can rebut the presumption by showing he maintained ties to the U.S. - a home, family, employment, tax filings, and a return date - and that he did not intend to abandon residence. The burden is on the applicant. The other three trips must be documented and must not aggregate to a break.
Physical presence. The applicant must be physically present in the U.S. for at least half of the five years preceding the application (30 months). The seven-month absence reduces his physical presence; counsel should calculate the exact days to confirm he still meets the 30-month requirement.
Taxes. The IRS debt under an installment agreement is generally not a bar if the client is in compliance with the agreement and is not delinquent. USCIS may require proof of the agreement and payment history. Failure to pay taxes can support a lack of good moral character if it shows a failure to support dependents or an unwillingness to comply with the law.
Timing. The client should wait until the statutory period is clean, ensure the installment agreement is current, and resolve the removal proceedings before filing. Filing while a removal order is pending is risky; administrative closure does not terminate the proceedings, and USCIS may deny the N-400 if the applicant is in removal proceedings.