It’s commonly stated in the citizenship by investment world that in order to be successful, an applicant has to have a “clean record.”
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That’s largely true, but as with all things in the law, there are nuances, exceptions and details that may apply.
In this article, we will briefly review the important issues for individuals with previous criminal convictions who are interested in applying for citizenship by investment or citizenship by descent in another country.
The Significance of FBI Background Checks
When applying for citizenship by investment or descent programs abroad, Americans are typically required to submit an FBI background check, also known as an FBI identity history summary (“FBI IdHS”). This document provides a record of previous arrests, including information on the outcome of those arrests, such as convictions, dismissals, or other dispositions.
Redacted FBI IdHS from someone who has no criminal record
Disposition information means “what eventually happened in the case, after the arrest.” The FBI background check is a critical document for citizenship by investment programs (St. Kitts, Malta, Vanuatu, etc.) as well as citizenship by descent programs (Slovakia, Italy, Croatia, etc.) that are evaluating an application from an American, or any other nationality.
You can learn more about how exactly reporting of arrests and convictions on an FBI background check works here.
Instances Where FBI Background Checks Are
Not Required
While less common, there are instances where FBI background checks are not required.
One such situation arises when an individual is seeking verification of citizenship rather than applying for citizenship itself. In these instances, the person is already a citizen of foreign country as a matter of law and is applying to be recognized as such. This is different from the more common naturalization, in which the applicant is not a citizen of the foreign country, and is applying to become a citizen.
Some Americans qualify for verification of citizenship in a European country
This distinction is important and applies only in specific cases. However, for the majority of Americans seeking second citizenship abroad, an FBI background check is necessary.
Evaluating Criminal Backgrounds for Citizenship Programs
Different countries and programs, whether based on investment or descent, have their own legal criteria for assessing an applicant's criminal background. Speaking generally, those legal criteria will usually consider two primary factors generally to determine whether an applicant is ineligible:
Nature of the Conviction: The severity of the crime committed is a crucial factor in evaluating an applicant. While more serious offenses like assault, robbery, or financial crimes can be challenging to overcome, lesser convictions such as California DUI, loitering, or public urination may be more manageable.
Time Since Conviction: The duration between the conviction and the application date is also usually taken into account, if the conviction is not automatically disqualifying for that particular citizenship program. If a significant amount of time has passed since a less severe conviction, like DUI or reckless driving, many programs consider the conviction under a more forgiving lens.
Honesty & Disclosure
In all instances of applying for citizenship abroad, particularly for Americans seeking dual citizenship, honesty and full disclosure are crucial. It is essential to truthfully report all convictions and provide accurate information during the application process. Engaging in fraudulent activities or providing false information can lead to severe consequences, including the possibility of citizenship revocation under the legal provisions of many programs.
At Malakouti Law, we totally foreclose the possibility of those negative outcomes by disclosing everything, dealing with the issues head-on and letting the chips fall as they may.
Solutions for Applicants with Convictions
In some cases, individuals interested in citizenship abroad may find that their conviction disqualifies them from the program.
However, there are two potential solutions (a third being to pursue the few countries that don’t request an FBI IdHS) that can still enable an applicant to apply and successfully obtain citizenship:
Post-Conviction Relief: This involves seeking legal remedies to clean up the criminal record after the conviction. Various forms (and names) of post-conviction relief exist in different U.S. states, such as expungement (PC 1203.4 in California), expunction, vacatur [of a dismissal], etc. If an applicant can obtain dismissal (i.e. “dropping the charge”) through post-conviction relief, some citizenship programs will a) consider the conviction as not “counting” for the purpose of the application or b) consider the post-conviction relief as a factor softening the negative effect of the conviction.
Providing Explanations and Additional Evidence: In certain instances, a program may require an explanation from the applicant regarding the conviction or request additional evidence. In such cases, a sworn declaration can be prepared on behalf of the applicant, addressing the conviction and providing any requested information. Submitting these materials might satisfy the program's requirements and lead to approval.
More crucially, a cogent, detailed explanation of what the conviction and post-conviction relief mean in easy-to-understand terms for the foreign program can be invaluable. This is what we call a legal opinion letter, written by a legal expert explaining the conviction, tying together all the evidence including an affidavit from the applicant, and also advocating on behalf of the applicant.
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Navigating the complexities of applying for second citizenship with a criminal record, particularly when intersecting with U.S. criminal law, can be challenging. It is advisable to consult with a professional, such as an immigration attorney experienced in international citizenship matters.
So, If you're considering applying for a second citizenship, whether it be by descent, investment or otherwise, and you need help, click on this link to request a consultation with Malakouti law.
Each immigration and citizenship case is particular and you should consult with a qualified immigration and citizenship lawyer about your case before taking any steps. The Law Office of Parviz Malakouti does not guarantee the accuracy of information presented nor assume responsibility for actions taken in reliance of this information. The information in this page could become outdated. Attorney marketing.