The U.S. Citizenship and Immigration Services (USCIS) recently expanded its policy guidance regarding unlawful acts that may prevent an applicant from meeting the good moral character (GMC) requirement for naturalization. The commission, conviction or imprisonment for, an unlawful act, during the statutory period for naturalization, may render an applicant ineligible for naturalization should the act be found to adversely reflect on moral character, unless the applicant can demonstrate extenuating circumstances. An extenuating circumstance must pertain to the unlawful act and must precede or be contemporaneous with the commission of the unlawful act.

What’s new?

Previously, the USCIS Policy Manual did not include extensive information on unlawful acts. This update to the Policy Manual provides additional examples of unlawful acts and instructions to ensure USCIS adjudicators make uniform and fair determinations, and further identifies unlawful acts that may affect GMC based on judicial precedent. This update does not change the impact of an unlawful act on USCIS’ analysis of whether an applicant can demonstrate GMC. Adjudicators in the field receive extensive training to apply the law on GMC and unlawful acts regulation. They are aware of which unlawful acts could bar an applicant from naturalization and are not limited by the examples listed in the Policy Manual.

Under immigration law, an applicant for naturalization must establish GMC. Although the law does not directly define GMC, it does describe certain acts that bar establishing GMC of an applicant. Examples of unlawful acts recognized by case law as barring GMC include, but are not limited to, the following:

• bail jumping;

• bank fraud;

• conspiracy to distribute a controlled substance;

• failure to file or pay taxes;

• false claim to U.S. citizenship;

• falsification of records;

• forgery uttering;

• insurance fraud;

• obstruction of justice;

• sexual assault;

• Social Security fraud;

• unlawful harassment;

• unlawful registration to vote;

• unlawful voting; and

• violation of a U.S. embargo.

In general, applicants must show they have been, and continue to be, people of GMC during the statutory period before filing for naturalization and up until they take the Oath of Allegiance. The statutory period is generally five years for permanent residents of the United States, three years for applicants married to a U.S. citizen, and one year for certain applicants applying on the basis of qualifying U.S. military service.

What are other possible bars to good moral character?

• One or More Crimes Involving Moral Turpitude: “Crime involving moral turpitude” (CIMT) is a term used in the immigration context that has no statutory definition. Generally, these are generally crimes which are categorized as: Crimes Against a Person (presence of unjustified violence or the use of a dangerous weapon, for example statutory rape or aggravated battery), Crimes Against Property (e.g. fraud, theft, robbery, forgery), Sexual and Family Crimes (e.g. spousal or child abuse, intentional sexual contact with a minor); and Crimes Against Government Authority (e.g. fraud, bribery, counterfeiting.

• Conviction of two or more offenses with combined sentence of 5 years or more: the underlying offenses must have been committed within the statutory period. The GMC bar for having two or more convictions does not apply if the convictions and resulting sentence or imprisonment of 5 years or more occurred outside of the United States for purely political offenses committed abroad.

• Controlled Substance Violation: Violation of any law on controlled substances, except for simple possession of 30g or less of marijuana. This includes conspiring to violate or aiding and abetting another person to violate such laws or regulations. Furthermore, a conviction or admission that the applicant has been a trafficker in a controlled substance, or benefited financially from a spouse or parent’s trafficking is also a conditional bar.

• Imprisonment for 180 days or more: An applicant cannot establish GMC if he or she is or was imprisoned for an aggregate period of 180 days or more during the statutory period based on a conviction. The commission of the offense resulting in conviction and confinement does not need to have occurred during the statutory period for this bar to apply. Only the confinement needs to be within the statutory period for the applicant to be precluded from establishing GMC. This bar to GMC does not apply to a conviction and resulting confinement of 180 days or more occurring outside of the United States for a purely political offense committed abroad.

• False Testimony: False testimony occurs when the applicant deliberately intends to deceive the U.S. Government while under oath in order to obtain an immigration benefit. This holds true regardless of whether the information provided in the false testimony would have impacted the applicant’s eligibility. The statute does not require that the benefit be obtained, only that the false testimony is given in an attempt to obtain the benefit. While the most common occurrence of false testimony is failure to disclose a criminal or other adverse record, false testimony can occur in other areas. False testimony may include, but is not limited to, facts about lawful admission, absences, residence, marital status or infidelity, employment, organizational membership, or tax filing information.

• Prostitution: An applicant may not establish GMC if he or she has engaged in prostitution, procured or attempted to procure or to import prostitutes or persons for the purpose of prostitution, or received proceeds from prostitution during the statutory period. The Board of Immigration Appeals (BIA) has held that to “engage in” prostitution, one must have engaged in a regular pattern of behavior or conduct. The BIA has also determined that a single act of soliciting prostitution on one’s own behalf is not the same as procurement.

• Smuggling of a person: An applicant is prohibited from establishing GMC if he or she is or was involved in the smuggling of a person or persons by encouraging, inducing, assisting, abetting or aiding any alien to enter or try to enter the United States in violation of law during the statutory period. This bar to GMC does not apply in certain cases where the applicant was involved in the smuggling of his or her spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law before May 5, 1988.

• Polygamy: An applicant who has practiced or is practicing polygamy during the statutory period is precluded from establishing GMC. Polygamy is the custom of having more than one spouse at the same time.

• Gambling: An applicant who has been convicted of committing two or more gambling offenses or who derives his or her income principally from illegal gambling activities during the statutory period is precluded from establishing GMC. The gambling offenses must have been committed within the statutory period.

• Habitual Drunkard: An applicant who is or was a habitual drunkard during the statutory period is precluded from establishing GMC. Certain documents may reveal habitual drunkenness, to include divorce decrees, employment records, and arrest records. In addition, termination of employment, unexplained periods of unemployment, and arrests or multiple convictions for public intoxication or driving under the influence may be indicators that the applicant is or was a habitual drunkard.

• Certain acts during statutory period: Although immigration law provides a list of specific bars to good moral character, it also allows a finding that “for other reasons” a person lacks good moral character, even if none of the specific statutory bars applies. The following sections provide examples of acts that may lead to a finding that an applicant lacks GMC “for other reasons.”

• Driving Under the Influence: The term “driving under the influence” (DUI) includes all state and federal impaired-driving offenses, including “driving while intoxicated,” “operating under the influence,” and other offenses that make it unlawful for a person to operate a motor vehicle while impaired. This term does not include lesser included offenses, such as negligent driving, that do not require proof of impairment. Evidence of two or more DUI convictions during the statutory period establishes a rebuttable presumption that an alien lacks GMC. The rebuttable presumption may be overcome if the applicant is able to provide “substantial relevant and credible contrary evidence” that he or she “had good moral character even during the period within which he [or she] committed the DUI offenses,” and that the “convictions were an aberration.” One’s efforts to reform or rehabilitate himself or herself after multiple DUI convictions do not in and of themselves demonstrate GMC during the period that includes the convictions.

• Failure to Support Dependents: An applicant who willfully failed or refused to support his or her dependents during the statutory period cannot establish GMC unless the applicant establishes extenuating circumstances. The GMC determination for failure to support dependents includes consideration of whether the applicant has complied with his or her child support obligations abroad in cases where it is relevant. Even if there is no court-ordered child support, the courts have concluded that parents have a moral and legal obligation to provide support for their minor children, and a willful failure to provide such support demonstrates that the individual lacks GMC. Failure to support includes: desertion of a minor; failure to pay any support; and obvious payment of insufficient amount.

• Adultery: An applicant who has an extramarital affair during the statutory period that tended to destroy an existing marriage is precluded from establishing GMC. If the applicant shows extenuating circumstances, an offense of adultery should not adversely affect the GMC determination. Extenuating circumstances may include instances where the applicant divorced his or her spouse but later the divorce was deemed invalid or the applicant and the spouse mutually separated and they were unable to obtain a divorce.

If you've had previous contact with law enforcement or immigration officials, or believe that one of these conditional bars apply to you, you should seek the assistance of an immigration attorney who can advise you on how to best present your case in light of your prior history. Please contact us, we have extensive experience in naturalization and other immigration matters. We are here to help. Follow us on Instagram, Twitter, Facebook, LinkedIn and Tumblr, for up-to-date immigration news.

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