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To Err is Human; But Just How Much Leeway is there for Naturalization Applicants?:A Look at the Good Moral Character Requirement for Naturalization


By John C. Valdez, Attorney at Fontes Figueroa Law Group

Serving clients in Orange County, Riverside County, and surrounding areas.

For many immigration attorneys, a naturalization case is very rewarding. Naturalized clients are always happy clients. If they have taken the time to study for citizenship, paid for the process, and gone through the paperwork and interview, they value the title, citizen. They normally have pride in their new status and cherish their new rights, especially the right to vote in a democratic system of government. Naturalization, though, is not always a pleasant process, especially if the government questions the applicant’s character. This article briefly discusses the good moral character standard for naturalization.

Defining Good Moral Character

The Immigration & Nationality Act (“INA”) prohibits a person from naturalizing unless the person “has been and still is a person of good moral character.” INA § 316(a). The INA lists several types of behavior that disqualify a person from establishing good moral character, but does not specifically define the term. INA § 101(f).

Government’s regulations leave little doubt that the standard for determining good moral character can be a subjective one. 8 CFR § 316.10(a)(2) grants the government considerable discretion by proving that it “shall evaluate claims of good moral character on a case-by-case basis taking into account the elements enumerated in this section and the standards of the average citizen . . . .” The “average citizen” standard can be very subjective, and individual examiners will often differ on just what an average citizen would find to be good moral character. This subjective element involving naturalization leaves too much room for arbitrary, fluctuating standards and decisions. Thus, applicants with any issues in their background would be well-advised to retain a highly qualified attorney to represent him or her throughout the adjudication process.

Bars to a Finding of Good Moral Character

The immigration laws provide a list of behaviors that specifically bar a finding of good moral character. The list, under 8 CFR § 316.10(b), include the following acts that generally prohibit naturalization:
  • Convicted of murder;
  • Convicted of an aggravated felony;
  • Committed one or more crimes involving moral turpitude;
  • Committed two or more offenses for which he or she was convicted and the aggregate sentence imposed was five years or more;
  • Violated any law related to a controlled substance (but not including a single offense for simple possession of 30 grams or less of marijuana);
  • Is or was confined to a penal institution for an aggregate of 180 days based on a conviction or convictions;
  • Has given false testimony to obtain an immigration benefit;
  • Is or was involved in prostitution or commercialized vice;
  • Committed two or more gambling offenses;
  • Derives his or her principal income from illegal gambling activities; or
  • Is or was a habitual drunkard.

Other Conduct that May Prevent a Finding of Good Moral Character?

There are many subjective areas involving an analysis of good moral character. These areas include behaviors that often do not involve criminal convictions and involve conduct that can be hard to prove. Some conduct that can be difficult to assess can be found under 8 CFR § 316.10(b)(3), which provides:

“Unless the applicant establishes extenuating circumstances, the applicant shall be found to lack good moral character if, during the statutory period, the applicant:

  • (I) Willfully failed or refused to support dependents;
  • (II) Had an extramarital affair which tended to destroy an existing marriage; or
  • (III) Committed unlawful acts that adversely reflect upon the applicant’s moral character, or was convicted or imprisoned for such acts, although the acts do not fall within the purview of Sec. 316.10(b)(1)(2).”

Based on the above provisions, an officer can investigate the applicant’s personal life, including sexual behavior and other family matters. In addition, INA 101(f) provides that even if a person has not committed acts proscribed in applicable laws involving good moral character, this fact “shall not preclude a finding that for other reasons such person is or was not of good moral character.” This catch-all provision means that the USCIS can consider a broad array of behaviors in making good moral character determinations. Since the USCIS is charged with making immigrant status determinations, it will sometimes focus on a prior status or immigration violation as a basis for a negative determination on good moral character. Applicants would be well-advised to be prepared to explain any possible issues in prior immigration applications, involvement in any legal proceedings, or unusual divorce or custody issues.

Statutory Period for Proving Good Moral Character

There are different statutory periods for determining good moral character for different types of applicants. “An applicant for naturalization bears the burden of demonstrating that, during the statutorily prescribed period, he or she has been and continues to be a person of good moral character.” This time “includes the period between the examination and the administration of the oath of allegiance.” 8 CFR § 316.10(a)(2).

Usually this period is five years, but sometimes it is less. For example, for people married to a U.S. citizen for three years, the statutory period is three years. INA § 319(a). For many veterans, the statutory period is one year. See e.g. 8 CFR § 329.2(d).

The Deep Reach of the Government

Although good moral character, by statute, is reviewed for a specific period of time, the government can sometimes peer further into the applicant’s past to look for skeletons. By regulation, it is authorized to examine and consider, as a basis for its determination, conduct occurring at any time prior to the statutory period. 8 CFR § 316.10(a)(2). Nevertheless, because the statutory period must have some meaning, the USCIS is not given unfettered authority to make decisions solely based on conduct occurring long into the past. If a naturalization applicant’s conduct during the statutory period reflects reform of character from an earlier period, the USCIS should make a favorable determination on good moral character.

There are two instances when conduct occurring long before the beginning of the statutory period for determining good moral character can serve solely as the basis for a negative determination. Indeed, an applicant cannot demonstrate good moral character if he or she was ever convicted of the crime of murder. If an applicant committed an aggravated felony at any time after November 29, 1990, he or she is similarly barred from establishing good moral character. An aggregated felony is any of several serious crimes listed in INA § 101(a)(43). In addition, applicants who have not completed their parole, probation, or a suspended sentence, are not eligible to establish good moral character. Those who completed their parole, probation, or a suspended sentence during the requisite statutory period are not precluded from naturalizing, but USCIS officers will be able to consider these circumstances in making their determinations.

Conclusion

This article is just an overview of the rules involving good moral character. There are numerous exceptions to the rules and strategies to help applicants overcome prior conduct that they may regret. As with many areas of law, there are gray areas in naturalization where skilled legal representation can make the difference in achieving the desired result.