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 (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.

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:

• Killing members of that group;

• Causing serious bodily injury to members of that group;

• Causing the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques;

• Subjecting the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part;

• Imposing measures intended to prevent births within the group; or

• Transferring by force children of the group to another group.^[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]).

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.