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Parviz Malakouti-Fitzgerald, Esq.

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  • Writer's pictureParviz Malakouti-Fitzgerald, Esq.

3 Strategies for Americans with Criminal Record Seeking Second Citizenship (Mobility Strategies)

Updated: Nov 6, 2023

By Parviz Malakouti-Fitzgerald, Esq.

By making the right moves, sometimes Americans with a criminal record can still get second citizenship

This article is part of our series on mobility concept & strategy explainers.

When you have a criminal record, options for second citizenship or residency can narrow greatly but aren't foreclosed entirely.

First of all, to state the obvious - some convictions simply will not prevent an American from obtaining residency or citizenship in a given foreign country. However, when an applicant has a potentially disqualifying conviction, sometimes the challenge can still be overcome.

Each country has its own laws regarding applicants with a criminal record. Here is a brief list of three strategies we attempt to use where possible.

1. Post conviction relief to dismiss the conviction

Post-conviction relief is a blanket term that refers to “expungements”, “expunctions”, “vacaturs”, and other post-conviction dismissals. For U.S. immigration, ONLY “due process” related dismissals can “remove” the conviction for immigration purposes. In other words, a scenario in which you were wrongfully convicted. But in many other countries, especially European, even “rehabilitative” post-conviction dismissals are not considered disqualifying for immigration or naturalization purposes.

The extent to which post-conviction relief is available for a conviction depends on the nature of the conviction and the state in which the person was convicted. Some states, like California, have many potential remedies available for post-conviction relief. Many other states do not.

2. Legal opinion letters

Legal opinion letters are written by an expert in the jurisdiction of conviction to a) explain what they must have done to have earned their conviction, b) explain what the conviction means in terms of the law of the receiving country and c) lightly advocate on behalf of the applicant, weaving in sympathetic factors.

They usually are three to six pages in length and dense with information and analysis about the particular applicant's situation.

Legal opinion letters work best in scenarios where the receiving country has discretion to approve or deny the residency or naturalization application based on the conviction. At Malakouti Law, we write these for American applicants with California convictions seeking citizenship abroad.

Learn more about legal opinion letters here.

3. Seeking citizenship in a country that doesn’t ask for evidence of any previous convictions.

Yes, there are still such countries that do not inquire about nor ask for a criminal records check (an FBI identity history summary for Americans) for residency or citizenship applicants. However, eventually if enough applicants with a criminal record seek the benefit in that country, other sovereigns (especially the U.S., UK and EU) take notice and do things like restrict visa free access or pressure the country to change the eligibility criteria. For example, this is what happened in 2022 with Hungary’s simplified naturalization program which requires NO evidence of home country police report from applicants. As a result, naturalized citizens can no longer travel visa-free on ESTA to the U.S. For this reason, I don’t list these countries publicly.

In summary, the possibility of second citizenship with a criminal conviction depends on:

1. What the conviction was for;

2. How long ago the conviction was;

3. Whether the conviction can be dismissed post-conviction;

4. The law of the receiving country; and

5. How sympathetic the applicant is otherwise (I call this “positive equities”).

At Malakouti Law, we help select clients with a criminal record screen residency and citizenship programs they may still qualify for. Screening properly is a multi-step process. If we believe the applicant has a chance, we usually work hand-in-hand with local counsel to help them apply, using the strategies above where possible.

Book a consultation with us at Malakouti law here.

Each immigration and citizenship case is particular and you should consult with a qualified, licensed immigration 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.

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