Deportation & Removal Bars: INA §316, §101(f), §318

TL;DR

A criminal history, an active removal proceeding, or an outstanding removal order can bar naturalization under the Immigration and Nationality Act. Under INA §316(a), the applicant must demonstrate good moral character (GMC) for the statutory period (generally 5 years, or 3 years for spouses of U.S. citizens). INA §101(f) defines the categories that preclude GMC. Some bars are conditional (they preclude GMC only during the statutory period): controlled substance offenses (except one offense of simple possession of 30 grams or less of marijuana), crimes involving moral turpitude with the petty offense exception, two or more offenses aggregating 5 years imprisonment, 180+ total days of confinement, prostitution, illegal gambling income, false testimony to obtain benefits, and habitual drunkenness. Other bars are permanent: murder at any time, aggravated felony conviction on or after November 29, 1990, and Nazi persecution/genocide/torture/extrajudicial killings/severe religious freedom violations. INA §318 generally imposes a jurisdictional bar during pending removal proceedings and for certain outstanding deportability findings — USCIS cannot grant naturalization while the bar applies — but the statute expressly preserves exceptions for military naturalization under INA §328 and §329.

The INA §316(a) good moral character requirement

Every naturalization applicant under general INA §316 must demonstrate good moral character during the statutory period — 5 years for standard applicants, or 3 years for spouses of U.S. citizens under INA §319(a). The GMC requirement continues from the beginning of the statutory period through the date of the Oath of Allegiance. An applicant who develops a GMC problem between filing and oath faces the same disqualification as one whose disqualifying conduct occurred earlier in the period.

The INA does not define "good moral character" affirmatively. Instead, INA §101(f) defines categories of persons who are precluded from establishing GMC. These fall into two groups: conditional bars, which preclude GMC only if the disqualifying conduct occurred during the statutory period, and permanent bars, which preclude GMC regardless of when the disqualifying conduct occurred. Beyond these statutory bars, USCIS may examine conduct outside the statutory period under 8 CFR §316.10(a)(2) and may exercise discretion to find lack of GMC even where no bar strictly applies. For the underlying naturalization framework that GMC operates within, see our U.S. citizenship civics test guide.

Conditional bars — during the statutory period

Conditional bars under INA §101(f) preclude GMC only if the disqualifying conduct occurred during the statutory period (5 years for standard, 3 years for U.S. citizen spouses). Conduct outside the period does not trigger a conditional bar, though USCIS may still consider it under the general discretion standard. The main conditional bars are:

When a conditional bar applies, the applicant is precluded from establishing GMC during that statutory period. The applicant may reapply once the statutory period has passed without qualifying conduct — for example, an applicant with a CIMT conviction can typically apply five years after the conviction if no new disqualifying conduct occurs and the offense is not classified as an aggravated felony under §101(a)(43).

Permanent bars — regardless of when

Permanent bars under INA §101(f) preclude GMC regardless of when the disqualifying conduct occurred. An applicant subject to a permanent bar can never establish GMC and is thus permanently ineligible for naturalization under §316. The main permanent bars are:

Murder conviction at any time. Under 8 CFR §316.10(b)(1)(i), any conviction for murder is a permanent bar. Murder is also independently an aggravated felony under §101(a)(43)(A), so it functions as a permanent bar under both the murder-specific and aggravated-felony rules.

Aggravated felony conviction on or after November 29, 1990. Under INA §101(f)(8) and 8 CFR §316.10(b)(1)(ii), a conviction on or after November 29, 1990, for any offense meeting the INA §101(a)(43) aggravated felony definition is a permanent GMC bar. This is the most far-reaching permanent bar in modern immigration law. The definition of "aggravated felony" was substantially expanded by the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, and now includes rape, sexual abuse of a minor, drug trafficking, firearms trafficking, money laundering over $10,000, crimes of violence with sentences of at least one year, theft with sentences of at least one year, fraud over $10,000, obstruction of justice, RICO offenses, and many others. State-law misdemeanors can qualify as aggravated felonies if they meet the federal definition. Suspension of a sentence does not remove the aggravated-felony classification under §101(a)(48).

Aggravated felony conviction before November 29, 1990. Not a permanent bar per se, but USCIS considers the seriousness of the offense along with present moral character in determining GMC under 8 CFR §316.10(a)(2). If the applicant's actions during the statutory period do not reflect reform, the applicant may still be found to lack GMC.

Nazi persecution, genocide, torture, extrajudicial killings, or severe violations of religious freedom. INA §101(f)(9) permanently bars persons who engaged in conduct described in §212(a)(3)(E) (assistance in Nazi persecution, participation in genocide, commission of torture or extrajudicial killings) or §212(a)(2)(G) (severe violations of religious freedom) at any time.

The aggravated felony problem in detail

The permanent bar for aggravated felony convictions on or after November 29, 1990, deserves particular attention because it captures a much broader range of offenses than the term "aggravated felony" suggests. The immigration definition at §101(a)(43) is a term of art — it does not require the offense to be aggravated in a common-sense way, and does not require it to have been felony-classified under the underlying criminal law.

Examples that have been classified as aggravated felonies for immigration purposes include: a misdemeanor theft with a suspended one-year sentence; a state controlled-substance trafficking conviction regardless of drug quantity; a misdemeanor sexual abuse of a minor; a state fraud conviction where the total loss to victims exceeds $10,000; and firearms-trafficking offenses regardless of federal or state classification. The federal definition controls; state-law classification as a misdemeanor or felony is not determinative. This is why an aggravated-felony assessment requires careful legal analysis of the specific statute of conviction against the §101(a)(43) definitions, and why applicants with any criminal history should consult with an experienced immigration attorney before filing Form N-400.

INA §318: The pending removal proceedings jurisdictional bar

Beyond the GMC bars, INA §318 (codified at 8 U.S.C. §1429) generally imposes a jurisdictional bar on naturalization: no person may be naturalized while a proceeding for removal is pending against that person, and no person may be naturalized against whom there is outstanding a final finding of deportability. This is not a discretionary consideration — it is a jurisdictional constraint on USCIS's authority to grant naturalization. However, the statute expressly excepts military naturalization under 8 U.S.C. §§1439 and 1440 (INA §§328 and 329), so applicants using those military-service pathways require a separate analysis under the military provisions rather than the general §318 rule.

For non-military applicants, the practical effect is that an applicant in removal proceedings must first resolve those proceedings — typically by asking the immigration judge to terminate proceedings so that USCIS may exercise its naturalization authority. This is a discretionary decision by the immigration judge and depends on the specific charges, the underlying facts, and the applicant's overall record. An outstanding order of removal that was not appealed similarly precludes naturalization under §318 until the order is reopened, rescinded, or otherwise addressed. Applicants who are currently or previously in removal proceedings should not file N-400 without first consulting an immigration attorney to assess whether the §318 bar applies and how to address it.

Disclosure obligations on Form N-400

Form N-400 requires disclosure of all arrests, citations, detentions, and convictions — even those that were expunged, sealed, dismissed, or pardoned. Failure to disclose can lead to denial and may create separate misrepresentation or credibility problems. False oral statements under oath during the naturalization process may also constitute false testimony under INA §101(f)(6), creating a conditional GMC bar. USCIS runs background and fingerprint checks that may reveal federal, state, and local criminal-history records, including records an applicant fails to disclose, so nondisclosure is both a substantive risk and rarely effective at hiding history.

State-law dispositions can carry immigration consequences that differ from their state-law meaning. A California misdemeanor theft under Penal Code §484 or a California Penal Code §273.5 domestic violence conviction, for example, may be treated as an aggravated felony or a CIMT for federal immigration purposes. Applicants with criminal history should not rely on state-law characterizations; they should have an experienced immigration attorney or Board of Immigration Appeals-accredited representative review the specific conviction against the §101(a)(43) and §101(f) frameworks before filing. For the broader good moral character framework that governs the GMC analysis, see our good moral character standards guide, and for the military-service naturalization framework that has its own criminal-history overlay, our military naturalization guide.

Frequently Asked Questions

Can I naturalize with a DUI conviction?

It depends on the specific charge, sentence, and jurisdiction. A single DUI typically is not classified as a CIMT or an aggravated felony and may not trigger a conditional bar to GMC. Two or more DUI convictions during the statutory period may create a conditional GMC problem under USCIS guidance. DUIs involving injury, a minor passenger, or other aggravating facts may create additional criminal-immigration issues, including possible CIMT analysis depending on the statute and facts. USCIS may also consider DUIs as adverse factors in the general GMC analysis under 8 CFR §316.10(a)(2). Consult with an immigration attorney about your specific record before filing.

If my aggravated felony conviction was before November 29, 1990, am I permanently barred?

Not automatically. The permanent bar under INA §101(f)(8) applies only to aggravated felony convictions on or after November 29, 1990. A conviction before that date does not trigger the permanent bar, though USCIS may still consider the seriousness of the underlying offense along with your present moral character under 8 CFR §316.10(a)(2). If your actions during the statutory period do not reflect reform, USCIS may still find lack of GMC on discretionary grounds. Consult with an immigration attorney about your specific record.

Does an expunged or sealed conviction still count?

Yes, for immigration purposes. Under INA §101(a)(48)(A), a "conviction" for immigration purposes includes any formal judgment of guilt by a court, regardless of whether the conviction was later expunged, sealed, set aside, or otherwise reduced in state-law terms. State post-conviction relief that eliminates the conviction on rehabilitative grounds generally does not remove the immigration conviction. You must disclose all convictions on Form N-400 including those that were expunged or sealed, and USCIS will treat them as convictions for GMC and removability analysis.

What is the "petty offense exception" for CIMTs?

Under INA §212(a)(2)(A)(ii)(II), a single CIMT does not create inadmissibility (and thus does not create a §101(f)(3) conditional bar to GMC) if the applicant has no prior CIMT AND the offense is not subject to potential imprisonment of more than one year AND the actual sentence imposed was six months or less. This exception is narrow — the maximum sentence provision looks to the potential penalty under the underlying statute, not just the actual sentence. A misdemeanor theft under a statute with a maximum one-year sentence would meet the maximum-penalty test; a felony theft with a maximum five-year sentence would not, even if the actual sentence was one month.

How does INA §318 affect my case if I have a removal order?

Section 318 generally bars naturalization while a removal proceeding is pending or while certain final deportability findings remain outstanding, subject to the statute's exceptions for INA §§328 and 329 military naturalization. If you have an unexecuted removal order, USCIS generally cannot grant naturalization until the order is reopened and rescinded or otherwise addressed. If you have a pending removal case in immigration court, you must ask the immigration judge to terminate proceedings to permit USCIS to exercise naturalization authority. Both scenarios require experienced immigration counsel; do not file N-400 without addressing the §318 bar first. Military applicants under §§328 and 329 fall under separate analysis given the statutory exception.

Does military service in the U.S. armed forces overcome a permanent bar?

No. Federal case law confirms that the aggravated-felony permanent bar under §101(f)(8) applies even to applicants who served honorably in active-duty status during wartime. The military-service pathways under INA §328 and §329 waive residence and physical presence requirements but do not waive the GMC requirement or override the permanent bars. Applicants with aggravated felony convictions on or after November 29, 1990, are permanently barred from military naturalization on the same terms as civilian applicants.

Bottom Line

Naturalization requires good moral character (GMC) under INA §316(a), demonstrated during the 5-year statutory period (3 years for U.S. citizen spouses). INA §101(f) defines conditional bars (during the statutory period) and permanent bars (regardless of when). Conditional bars include: controlled substance convictions (except single simple possession of ≤30g marijuana), CIMTs (with the petty offense exception), two or more offenses aggregating 5 years imprisonment, 180+ total days of confinement, prostitution, alien smuggling, habitual drunkenness, illegal gambling income, and false testimony to obtain benefits. Permanent bars include: murder at any time, aggravated felony conviction on or after November 29, 1990, and Nazi persecution/genocide/torture/severe religious freedom violations. Aggravated felony under §101(a)(43) is a term of art that captures many state-law misdemeanors including theft with sentences of ≥1 year, drug trafficking, sexual abuse of a minor, fraud >$10,000, and firearms trafficking. INA §318 generally imposes a jurisdictional bar during pending removal proceedings or outstanding final deportability findings, but the statute expressly excepts military naturalization under §§328 and 329. Form N-400 requires disclosure of all arrests and convictions including expunged/sealed dispositions, and USCIS runs background and fingerprint checks that may reveal federal, state, and local records. False oral statements under oath during the naturalization process may constitute false testimony under §101(f)(6), creating a conditional GMC bar. Applicants with any criminal history should consult an immigration attorney before filing. For the underlying framework GMC operates within, see our good moral character standards guide, our U.S. citizenship civics test guide, and our military naturalization guide.

Source: USCIS Policy Manual — Part F, Chapter 4: Permanent Bars to Good Moral Character · USCIS Policy Manual — Part F: Good Moral Character · 8 U.S.C. §1101 (INA §101) — Definitions · 8 U.S.C. §1429 / INA §318 — Prerequisite to Naturalization