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Chapter 4: Permanent Bars to GMC


A. Murder


An applicant who has been convicted of murder at any time is permanently barred from establishing GMC for naturalization.[1] See 8 CFR 316.10(b)(1)(i).


B. Aggravated Felony


In 1996, Congress expanded the definition and type of offense considered an “aggravated felony” in the immigration context.[2] See INA 101(a)(43). See the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 3009-546 (September 30, 1996). An applicant who has been convicted of an “aggravated felony” on or after November 29, 1990, is permanently barred from establishing GMC for naturalization.[3] See 8 CFR 316.10(b)(1)(ii).


While an applicant who has been convicted of an aggravated felony prior to November 29, 1990, is not permanently barred from naturalization, the officer should consider the seriousness of the underlying offense (aggravated felony) along with the applicant's present moral character in determining whether the applicant meets the GMC requirement. If the applicant's actions during the statutory period do not reflect a reform of his or her character, then the applicant may not be able to establish GMC.[4] See 8 CFR 316.10(a)(2).


Some offenses require a minimum term of imprisonment of one year to qualify as an aggravated felony in the immigration context. The term of imprisonment is the period of confinement ordered by the court regardless of whether the court suspended the sentence.[5] See INA 101(a)(48)(B). See Matter of S-S-, 21 I&N Dec. 900 (BIA 1997). For example, an offense involving theft or a crime of violence is considered an aggravated felony if the term of imprisonment ordered by the court is one year or more, even if the court suspended the entire sentence.[6] See INA 101(a)(43)(F) and INA 101(a)(43)(G). 


The table below serves as a quick reference guide listing aggravated felonies in the immigration context. The officer should review the specific statutory language for further information.


“Aggravated Felonies” in the Immigration Context 

Aggravated Felony

Citation

Murder, Rape, or Sexual Abuse of a Minor

INA 101(a)(43)(A)

Illicit Trafficking in Controlled Substance

INA 101(a)(43)(B)

Illicit Trafficking in Firearms or Destructive Devices

INA 101(a)(43)(C)

Money Laundering Offenses (over $10,000)

INA 101(a)(43)(D)

Explosive Materials and Firearms Offenses

INA 101(a)(43)(E)(i)–(iii)

Crime of Violence (imprisonment term of at least 1 yr)

INA 101(a)(43)(F)

Theft Offense (imprisonment term of at least 1 yr)

INA 101(a)(43)(G)

Demand for or Receipt of Ransom

INA 101(a)(43)(H)

Child Pornography Offense

INA 101(a)(43)(I)

Racketeering, Gambling (imprisonment term of at least 1 yr)

INA 101(a)(43)(J)

Prostitution Offenses (managing, transporting, trafficking)

INA 101(a)(43)(K)(i)–(iii)

Gathering or Transmitting Classified Information 

INA 101(a)(43)(L)(i)–(iii)

Fraud or Deceit Offenses or Tax Evasion (over $10,000)

INA 101(a)(43)(M)(i), (ii)

Alien Smuggling

INA 101(a)(43)(N)

Illegal Entry or Reentry by Removed Aggravated Felon

INA 101(a)(43)(O)

Passport, Document Fraud (imprisonment term of at least 1 yr)

INA 101(a)(43)(P)

Failure to Appear Sentence (offense punishable by at least 5 yrs)

INA 101(a)(43)(Q)

Bribery, Counterfeiting, Forgery, or Trafficking in Vehicles

INA 101(a)(43)(R)

Obstruction of Justice, Perjury, Bribery of Witness

INA 101(a)(43)(S)

Failure to Appear to Court (offense punishable by at least 2 yrs)

INA 101(a)(43)(T)

Attempt or Conspiracy to Commit an Aggravated Felony

INA 101(a)(43)(U)


C. Persecution, Genocide, Torture, or Severe Violations of Religious Freedom


The applicant is responsible for providing any evidence or documentation to support a claim that he or she is not ineligible for naturalization based on involvement in any of the activities addressed in this section.


1. Nazi Persecutions


An applicant who ordered, incited, assisted, or otherwise participated in the persecution of any person or persons in association with the Nazi Government of Germany or any government in an area occupied by or allied with the Nazi government of Germany is permanently barred from establishing GMC for naturalization.[7] See INA 101(f)(9) and INA 212(a)(3)(E).


2. Genocide 


An applicant who has ordered, incited, assisted, or otherwise participated in genocide, at any time is permanently barred from establishing GMC for naturalization.[8] See INA 101(f)(9) and INA 212(a)(3)(E). See 18 U.S.C. 2340 and 18 U.S.C. 1091(a).  The criminal offense of “genocide” includes any of the following acts committed in time of peace or time of war with the specific intent to destroy in whole or in substantial part a national, ethnic, racial, or religious group as such:



3. Torture or Extrajudicial Killings


An applicant who has committed, ordered, incited, assisted, or otherwise participated in the commission of any act of torture or under color of law of any foreign nation any extrajudicial killing is permanently barred from establishing GMC for naturalization.[10] See INA 101(f)(9) and INA 212(a)(3)(E).


“Torture” is defined as an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his or her custody or physical control.[11] See 18 U.S.C. 2340.


An “extrajudicial killing” is defined as a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees, which are recognized as indispensable by civilized peoples.[12] See 28 U.S.C. 1350 (Note). See Section 3(a) of the Torture Victim Protection Act of 1991. 


4. Particularly Severe Violations of Religious Freedom 


An applicant who was responsible for, or directly carried out, particularly severe violations of religious freedom while serving as a foreign government official at any time is not able to establish GMC.[13] See INA 101(f)(9) and INA 212(a)(2)(G).  “Particularly severe violations of religious freedom” are defined as systematic, ongoing, egregious violations of religious freedom, including violations such as:


  • Torture or cruel, inhuman, or degrading treatment or punishment;

  • Prolonged detention without charges;

  • Causing the disappearance of persons by the abduction or clandestine detention of those persons; or

  • Other flagrant denial of the right to life, liberty, or the security of persons.[14] See 22 U.S.C. 6402.





Footnotes


2. [^] 

 See INA 101(a)(43). See the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 3009-546 (September 30, 1996).

4. [^] 

 See 8 CFR 316.10(a)(2).

5. [^] 

 See INA 101(a)(48)(B). See Matter of S-S-, 21 I&N Dec. 900 (BIA 1997).

7. [^] 

 See INA 101(f)(9) and INA 212(a)(3)(E).

9. [^] 

 See 18 U.S.C. 1091. See Article II of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (78 U.N.T.S. 278 [Dec. 9, 1948]).

10. [^] 

 See INA 101(f)(9) and INA 212(a)(3)(E).

11. [^] 

 See 18 U.S.C. 2340.

12. [^] 

 See 28 U.S.C. 1350 (Note). See Section 3(a) of the Torture Victim Protection Act of 1991.

13. [^] 

 See INA 101(f)(9) and INA 212(a)(2)(G)

14. [^] 

 See 22 U.S.C. 6402.



Resources


Legal Authorities
INA 101(f) - Good moral character definition
INA 316(e), 8 CFR 316.10 - Good moral character requirement


Updates


Date Details
January 7, 2013
POLICY ALERT

Comprehensive Citizenship and Naturalization Policy Guidance

​USCIS is issuing updated and comprehensive citizenship and naturalization policy guidance in the new USCIS Policy Manual.

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Current as of July 1, 2014