In order to qualify for naturalization, an applicant must demonstrate that she is or was a person of good moral character (GMC) throughout the relevant statutory period and through the time she takes the oath of allegiance. See Immigration and Nationality Act (INA) § 101(f); Title 8, Code of Federal Regulations (CFR) § 316.10.
For the average person, GMC may not be an issue – the average person will have the requisite “character which measures up to the standards of average citizens of the community in which the applicant resides,” USCIS Policy Manual, Volume 12, Part F (hereinafter “PM”), Ch.1A, and will not be statutorily precluded from showing GMC. GMC “does not mean moral excellence . . . .'” Matter of Sanchez-Linn, 20 I&N Dec 362, 366 (BIA 1991).
GMC “is incapable of exact definition,” Posusta v. United States, 285 F.2d 533, 535 (2d Cir. 1961), and extremely complex. Because the statute and regulations governing the meaning of GMC cover a broad range of conduct and acts, and because officers will be exercising discretion in making a determination, an advocate must carefully review GMC with a client to ensure any potential issues are analyzed and addressed.
There are statutory and regulatory bars to GMC, as well as a catchall provision which allows an adjudicator to exercise discretion and find a lack of GMC where none of the other bars apply, and it is important to keep them all in mind.
Having an issue that could result in a negative determination of GMC can do more than prevent a person from obtaining U.S. citizenship – it can signal that the individual may be removable and may even be subject to mandatory detention if put in removal or if the person returns to the United States after traveling abroad.
USCIS officers must assess GMC on a “case-by-case” basis, 8 CFR § 316.10(a), examining an applicant’s conduct and acts during the relevant statutory period immediately preceding the application – 5 years as a general matter, INA 316(a)(1), 3 years for those who have been residing with their U.S. citizen spouse for that period, INA 319(a), and 1 year for those who have served honorably in the U.S. military, 8 CFR § 329.2(d). However, officers are not limited to the statutory periods, and can go back in time as far as they believe necessary in assessing whether a person has experienced a “reform of character,” or if the officer believes that “the earlier conduct and acts appear relevant to a determination of the applicant’s present moral character.” 8 CFR § 316.10(a) (2).
An officer must consider “the totality of the circumstances and weigh all factors” when considering reformation of character in conjunction with GMC within the relevant period. PM Ch.2B.
The PM provides officers with the following list of factors to consider in assessing an applicant’s current moral character and reformation of character: family ties and background; absence or presence of other criminal history; education; employment history; other law-abiding behavior (meeting financial obligations, paying taxes, etc.); community involvement; credibility of the applicant; compliance with probation; length of time in United States. Id.
A GMC determination therefore involves a balancing test and advocates should make a strong showing of equities where any negative factors that do not constitute a bar to establishing GMC are present, to present a strong foundation upon which an adjudicator may be swayed to find in an applicant’s favor.
Absolute Bars to Showing GMC
An individual cannot show GMC if he or she has:
• Been convicted of murder at any time (8 CFR § 316.10(b)(i));
• Engaged in persecution, genocide, torture, or severe violations of religious freedom at any time (INA § 101(f)(9));
• Been convicted of an aggravated felony as defined in INA § 101(a) (43) on or after November 29, 1990 (INA § 101(f) (9), 8 CFR § 316.10(b) (ii)).
Note that an individual who was convicted of an aggravated felony before November 29, 1990 and does not otherwise fall into any of the permanent or conditional preclusions to showing good moral character can naturalize.
They face an uphill battle and must demonstrate that they have made exemplary efforts to redeem themselves, but it can be done, if not at the USCIS level, then in federal court. For an excellent example of the showing that needs to be made, and how advocates can prepare not only an application but also their client for the application process, see Lawson v. USCIS, 795 F.Supp.2d 283 (SDNY 2011), discussed at length in a previous blog post.
Judge Denny Chin of the U.S. Court of Appeals for the Second Circuit, sitting by designation in district court, found that Lawson, a Vietnam War veteran honorably discharged from the Marines, had established good moral character and therefore was eligible to naturalize despite the fact that he was convicted of manslaughter for killing his wife in 1985.
Judge Chin found Lawson had paid his debt to society serving 13 years in prison and while there “he overcame his drug and alcohol problems, earned three degrees (including two with honors), completed several training programs, and counseled and taught other inmates” and continued his efforts at reform after he was released. Cases like Lawson demonstrate that in preparing a naturalization application for a client with a criminal history or any other GMC issue, it is important to pull out all the stops and be creative about demonstrating all of the ways in which your client is an asset to the community. Make sure they are able to communicate the many ways in which they participate in and contribute to the various communities with which they may interact.
Conditional Bars for Acts in the Statutory Period
Beyond the absolute bars to establishing GMC, the statute and regulations provide a laundry list of what USCIS refers to as “conditional bars” to establishing GMC, found in INA § 101(f) and 8 CFR 316.10:
• One or more crimes involving moral turpitude
• Convicted of two or more offenses, aggregate sentence imposed five years or more
• Controlled substance violation
• Admitting to any of the above
• Incarceration for aggregate of 180 days due to a conviction
• False testimony
• Prostitution or commercialized vice
• Smuggling of a person
• Polygamy
• Gambling
• Habitual drunkard
Here are highlights of some of the more complex conditional bars:
Crime Involving Moral
Turpitude
Being convicted of a crime involving moral turpitude (CIMT) during the statutory period precludes a finding of GMC. This excludes a conviction for a purely political offense as well as an offense that falls within the petty offense exception in INA § 212(a)(2)(ii)(II) (maximum penalty possible does not exceed one year and the person was sentenced to 6 months or less imprisonment) or the youthful offender exception in INA § 212(a)(2)(ii) (committed crime when under 18, crime committed (and person released from resulting confinement) more than 5 years before application for the benefit).
If the client is unclear on whether they have been convicted or what they may have been convicted of, make sure you obtain any and all records relevant to their brush with the criminal justice system. You can have them request a copy of their file from their criminal defense attorney, obtain an FBI rap sheet, have them go to the court where their case was heard and request a record or court disposition. Try to get as much documentation as possible and do not rely solely on the FBI rap sheet because it may be incomplete.
Like GMC, CIMT is not defined in the INA or implementing regulations and is incredibly complex. Moral turpitude refers generally to conduct that “shocks the public conscience,” conduct that “is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.
Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong, or malum in se so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.” Matter of Franklin, 20 I&N Dec. 867, 868 (BIA 1994), aff’d, 72 F.3d 571 (8th Cir. 1995). Key to the determination of moral turpitude is “whether the act is accompanied by a vicious motive or a corrupt mind.” Id.
Each statute must be examined to determine whether it involves moral turpitude, but some common elements of CIMTs are fraud, theft (intent to permanently deprive the owner of property), crimes involving bodily harm to another with an intent to harm, and even some instances of harm resulting from criminally reckless conduct.
The CIMT concept has developed over time through a multitude of court decisions, and the steps one must take in analyzing whether a crime amounts to a CIMT continues to be fought out in the courts.
The determination of whether a crime is a CIMT depends on the judge, the wording of the particular statute at issue, and whether the judge applies the “categorical approach” (which requires consideration of the minimal conduct implicated by a penal law) or “modified categorical approach” (where the categorical approach does not yield an answer because a criminal statute includes offenses that fall outside the generic criminal category, this approach allows consideration of the record of conviction for clarification), among other things.
Because the topic of CIMTs can fill many volumes, an in-depth analysis of how to identify a CIMT is beyond the scope of this blog post, and the reader is referred to resources such as Mary E. Kramer, Immigration Consequences of Criminal Activity: A Guide to Representing Foreign-Born Defendants (5th Ed. 2012) (an AILA publication), that deal in more depth with CIMTs and other issues relating to crimes and immigration.
Keep in mind that in addition to precluding a finding of GMC, one CIMT within 5 years of admission where the crime is one for which a sentence of one year or more may be imposed makes a person deportable, see INA § 237(a)(2)(A)(i), as do two or more CIMTs at any time. See INA § 237(a) (2) (A) (ii).
An advocate also has to be aware of the impact of a criminal conviction on a lawful permanent resident who wants to travel outside the United States. If a lawful permanent resident with one or more CIMTs on her record travels outside the United States, upon return she may be considered an applicant for admission under INA § 101(a)(13), and may be subject to mandatory detention under INA § 236(c).
To be continued
* Â Cyrus D Mehta, may be contacted at 212-425-0555 or info@cyrusmehta.comÂ
Myriam Jaidi
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