Do you have Good Moral Character? Legally Speaking

What is Good Moral Character?

If you are going to apply for U.S. citizenship, you must also have good moral character. Good moral character is just another way of showing that you are a person of a character which meets the standards of the average citizen in your community. Generally, you must show that you have had good moral character for a certain amount of time preceding the naturalization application up to the time of the Oath of Allegiance. This period of time is called the statutory period. The number of years in the statutory period depends on how you obtained your permanent residence. Keep in mind that the determination of good moral character is done on a case by case basis. If there is a serious matter, such as a serious criminal violation that occurred beyond the statutory period, the officer can still examine the facts of that particular issue to determine whether you hold good moral character.

The Statutory Period

The statutory period is typically the time during which you must show good moral character. If you obtained your permanent residence through marriage to a U.S. citizen, then the officer will examine the 3 year period preceding the date of the naturalization application. If you’ve obtained your permanent residence through means other than marriage to a U.S. citizen, then the statutory period is typically 5 years. If you obtained permanent residence through the military, then the statutory period ranges from 1 to 5 years depending on particular circumstances.

The officer may look beyond the statutory period to determine your good moral character if your conduct within the statutory period is contrary to a rehabilitated character or if the conduct outside of the period is relevant to a good moral character determination within the statutory period.

The Officer’s evaluation of an application to find good moral character

Upon reviewing the naturalization application, the officer will look for anything that may be contrary to a finding of good moral character. The naturalization application contains extensive biographic information, which guides the officer’s judgment. Such information includes:

  • Family ties and background
  • Criminal history
  • Education
  • Employment history
  • Tax history
  • Community activity
  • Time present in the United States
  • Rehabilitation and compliance with the law

The above information provides the officer enough to determine whether there is a good moral character issue that can lead to a denial of the naturalization application. The officer can broadly review your history to determine whether a particular act reflects a lack of good moral character. However, the officer commonly reviews two major aspects of the good moral character examination. The first, whether there are any conditional bars to showing good moral character. Second, whether there are any permanent bars to showing good moral character. Any conditional (temporary) or permanent bars to showing good moral character also means that that naturalization application will be denied because of the failure to meet this important requirement.

The conditional bars to naturalization based on a lack of good moral character

There are certain established factors that lead to a determination that there is a lack good of moral character. Certain acts may lead to a temporary bar to naturalization because of the assumption that there is no good moral character. This bar is only within the statutory period. Therefore, if you face a conditional bar, you may wait out another 3 to 5 years and try to apply again. There are certain established acts that lead to this conditional bar. These include:

  • One or More Crimes Involving Moral Turpitude, INA 101(f)(3): 

If you’ve been convicted of one or more crimes involving moral turpitude (CIMT) within the statutory period, you will not be able to show good moral character. This ultimately means that your naturalization application will be denied. That is why it is so important to understand this requirement and determine whether any criminal convictions or acts on your part amount to a CIMT.                                                                                        

Crimes involving moral turpitude has no statutory definition. Rather case law has provided guidance on how to determine whether a particular crime falls under this category. Courts have stated that to fall under a crime involving moral turpitude (CIMT), the crime generally “shocks the public conscience” due to the “base, vile or depraved” nature of the crime. The crime usually must involve a reprehensible act driven by willful, reckless, evil or malicious intent. The officer must look at the elements of the crime, based on state law to determine whether the elements of the crime under the state law meet the definition of a CIMT. Generally the following types of criminal conduct meet the standard of a CIMT.

  1. Crimes against a person involve moral turpitude when there in criminal intent, recklessness or is described as reprehensible by state statute. However the officer may infer intent or recklessness from any violence or use of weapons. Examples of crimes against a person that involve moral turpitude include aggravated assault and battery, forcible touching and statutory rape. However, keep in mind that simple assault and battery may not be found to be a CIMT.
  2. Crimes against property that involve moral turpitude involve intentional fraud against the government or an individual to take away property. Examples of such crimes include fraud, theft, embezzlement, forgery and robbery.
  3. Sexual and family crimes include domestic violence, child abuse and spousal abuse. This is a more complex determination and really depends of the particular state statutes and facts. Usually it is very difficult to argue that a crime with sexual abuse or violence is not a CIMT. For example, any intentional sexual contact with a minor is a CIMT. On the other hand, indecent exposure requires more analysis and examination of intent, and whether there was a victim involved. If a comparison of the facts in the crime does not meet the elements of the state law or show criminal intent or recklessness, it may not be a CIMT. In family crimes a determination depends on the particular facts. If there is an absence of intent or violence, there may be a determination that the crime does not involve moral turpitude. But this is done on a case by cases basis with close examination of the facts and how it meets the elements of the crime in the state law.
  4. Crimes against the authority of the government that involves moral turpitude usually involves fraud which include bribing and counterfeiting. Not all crimes that challenge or influence the authority of the government are CIMTs. For example, contempt of court is not usually considered a CIMT.

The above types of CIMTs does not include an exhaustive list of offenses that are and are not CIMTs. It is best to seek the advice of an immigration attorney as early as after the arrest to determine possible immigration consequences and whether your particular charges amount to a CIMT under immigration law. One way to get around any good moral character issues due to a CIMT conviction is to argue the Petty Offense or Purely Political exceptions.

The Petty Offense or Purely Political exceptions permit you to still prove your good moral character for a CIMT conviction within the statutory period. The Petty Offense exception applies if you’ve been convicted of only one CIMT, the sentence imposed was 6 months or less and the maximum sentence that could be imposed is one year. The Purely Political exception applies where the conviction occurred outside the United States for purely political violations. These sorts of convictions can involve charges against an individual for the purpose of political, racial, religious repression.

  • Aggregate Sentence of 5 Years or More, INA 101(f)(3)

You cannot prove good moral character if convicted of two or more offenses with a total of 5 years or more sentence within the statutory period. The Purely Political exception may apply here.

  • Controlled Substance Violation, INA 101(f)(3)

If you’ve been convicted within the statutory period for controlled substance violation under federal, state or foreign law, then you’ll be barred from showing good moral character. The controlled substance is determined by the list under the Controlled Substances Act. Any conviction or admission that you are a trafficker, or benefitted from the financial activity of trafficking as a spouse or child of a trafficker will also lead to a conditional bar from showing good moral character.

It is important to note that states have been decriminalizing the possession and use of marijuana, which directly contradicts the federal law. For purposes of federal immigration law, marijuana is still considered a controlled substance and therefore can lead to a conditional bar for a violation. Possession of a controlled substance is not the only basis to bar a showing of good moral character. The manufacture, production, distribution or dispensing of marijuana or any other controlled substance will lead to this harsh immigration consequence. This includes legal recreational and medical marijuana in the state. There is an exception for simple possession of 30 grams or less of marijuana.

  • Incarceration for 180 Days or More, INA 101(f)(7)

If you’ve been imprisoned or incarcerated for a total of 180 days within the statutory period, you cannot show good moral character. It must be incarceration. A sentence of parole is not applicable here. However, if incarcerated for this period of time due to a parole violation, then this will pose a conditional bar to showing good moral character. The purely political exception applies under this circumstance.

  • False Testimony Under Oath, INA 101(f)(6)

False testimony to obtain an immigration benefit within the statutory period will result in a bar to showing good moral character. False testimony is testimony under oath to the U.S. government. Therefore any testimony involving false information about admission into the United States, marital status, employment and criminal history and taxes can lead to this type of offense and bar. There are three elements of false testimony. The first element is the testimony must be in the form of an oral statement. The oral statement must be a false oral statement to an officer. An omission or concealment of information which leads to incomplete but truthful information is not a false oral statement. The second element is the requirement that the oral statement be made under oath. The third elements requires that there be a subjective intent to obtain an immigration benefit. If there is no intent to obtain an immigration benefit, then the bar for false testimony does not apply.

  • Prostitution Offenses, INA 101(f)(3)

If you participate in the regular pattern of conduct to engage in prostitution or to benefit financially from prostitution, then the conditional bar to showing good moral character will apply here.

  • Smuggling of a Person, INA 101(f)(3)

If you’ve participated in the smuggling of a person into the United States within the statutory period, then you’ll be barred from showing good moral character. Smuggling is broadly defined as not only physically helping to smuggle people across the border but also includes encouraging, inducing, assisting, abetting or aiding an alien to enter or try to enter the U.S. illegally. There is the family reunification exception which does not bar any person who tried to smuggle a spouse, parent, son or daughter into the U.S. before May 5, 1988.

  • Polygamy, INA 101(f)(3)

If you have more than one spouse at the same time, then you are practicing polygamy and will be barred from showing good moral character. The officer’s review of your marital history will reveal any issues with polygamy.

  • Gambling Offenses, INA 101(f)(4)-(5)

If you’ve been convicted for illegal gambling or your income primarily comes from gambling, within the statutory period, then you’ll be barred from showing good moral character.

  • Habitual Drunkard, INA 101(f)(1)

If the record reveals that you have a drinking problem, you’ll be precluded from showing good moral character. Information in the record can reveal such a problem. Any employment, divorce or arrest records revealing drinking related problems can raise this red flag. Multiple DUI arrests and convictions is one of the most common ways that this problem comes to the forefront. 

  • Failure to Support Dependents, INA 101(f)

If the application reveals that you don’t financially support your child(red) or you’ve abandoned your child(ren), then you’ll be conditionally barred from showing good moral character. Information such as child support orders or arrests for child support delinquency whether in the U.S. or abroad will be the most telling clues to whether this will be a problem. One exception here is if there are extenuating circumstances that have caused the failure on the part of the parent. Such extenuating circumstances should explain why this failure occurred and could include unemployment, proven good faith effort to meet child support obligations, or mistake of law.

  • Adultery, INA 101(f)

If your extramarital affair within the statutory period destroyed your marriage, then you’ll be precluded from showing good moral character. Extenuating circumstances serves as an exception here. Such circumstances involve a mutual separation of spouses before the affair, or the inability to get a divorce.

  • Unlawful Acts, INA 101(f)

This is a catch all for any other types of conduct that don’t fall under the above categories but yet still leads to a finding that there is a lack of good moral character. This is determined on a case  by case basis. Examples of such unlawful acts include unlawful voting, false claim to U.S. citizenship and failure to file or pay taxes.

The permanent bars to naturalization based on a lack of good moral character

There are certain established factors that lead to a determination that there is a lack good of moral character. Certain acts may lead to a permanent bar to naturalization if such an act was committed at any time preceding the submission of the naturalization application up to the point of the Oath of Allegiance. Acts that lead to a permanent bar include:

  • Murder

A conviction for murder will permanently bar you from establishing good moral character which in turn precludes you from becoming a U.S. citizen.

  • Aggravated Felony

Under immigration law, there are a list of crimes referred to as aggravated felonies pursuant to INA 101(a)(43). If convicted of an aggravated felony on or after November 29, 1990, then you’ll be permanently barred from establishing good moral character. Those persons convicted of an aggravated felony, but before November 29, 1990 are not permanently barred. However, the officer will carefully evaluate the person’s history to determine whether there has been rehabilitation. A list of aggravated felony crimes include:

Murder, rape, sexual abuse of a minor, drug trafficking, firearms or destructive devices trafficking, money laundering over $10,000, explosive devices and firearms offenses, crime of violence (imprisonment term of at least 1 year), ransom, child pornography, racketeering, gambling (imprisonment term of at least 1 year), prostitution offenses involving managing, transporting and trafficking), gathering or transmitting classified information, fraud or tax evasion, alien smuggling, illegal entry or reentry by aggravated felon, passport or document fraud with imprisonment term of at least 1 year, failure to appear for sentence (punishable by at least 5 years, bribery, counterfeiting, forgery, trafficking in vehicles, obstruction fo justice, perjury, bribery of witness, failure to appear to court punishable by at least 2 years and any attempt, conspiracy to commit an aggravated felony.

  • Nazi Persecution, Genocide, Torture, or Severe Violations of Religious Freedom.
  1. Nazi Persecutions

Anyone who participated in the persecution of persons as a Nazi or in association with the Nazi government of Germany are permanently barred from showing good moral character.

  1. Genocide

Anyone who participates in the act of genocide will be permanently barred from showing good moral character. Genocide is the intent to destroy a “national, ethnic, racial, or religious group” through different techniques which includes killing and torture.

  1. Torture or Extrajudicial Killings

Anyone who tortures or commits extrajudicial killing is permanently barred. Torture is the act of intentionally inflicting severe physical and mental pain or suffering on another person in their custody or control. Extrajudicial killing is the act of terminating another without judicial due process.

  1. Severe Violations of Religious Freedom

Anyone who represses religious freedom while serving as a government official through systematic and egregious acts such as torture, detention and killing is permanently barred from showing good moral character.

Adjudication of a Naturalization Application with Good Moral Character Issues

The officer carefully reviews the application during the interview. If the officer identifies particular moral character issues, the officer will have more questions about it. The officer may ask for a sworn statement and testimony. If the testimony does not provide sufficient information, the officer will issue a Request for More Evidence (RFE). Such a request will require additional documents or evidence showing more details about the conduct. Such additional evidence includes the certified court disposition or other statements from witnesses. It is very important to comply with the deadline for the request for more evidence to ensure the officer’s consideration of all information. After a review of all the information in the application along with the evidence, the officer or a panel may make a determination on the question of good moral character.

The Complexities of a Good Moral Character Issue 

The above information is not at all exhaustive or inclusive. For example, you may have a conviction that does not fall under any particular CIMT but yet may just indicate a lack of good moral character. You may have been convicted of a misdemeanor and a slap on the wrist. Yet the offense can still fall under CIMT. Whether or not a particular offense falls within a conditional or permanent bar to good moral character depends on your particular facts and state law.

Another consideration of factors involve whether or not there was a conviction, a guilty plea, a conditional plea or a diversion program. There are many types of court dispositions that may not be considered a conviction, but is considered a conviction under immigration law. For example, a conviction that was vacated because of completion of a rehabilitative or conditional period is considered a conviction for immigration purposes. On the other hand, a conviction that is vacated on the merits such as constitutional defects, conviction errors or statutory defects is not considered a conviction for immigration purposes. Another consideration is probation. A naturalization application will not be approved while you are on probation, parole or suspended sentence. An Expungement does not remove the conviction and must still be disclosed. Therefore, one you know that you have a criminal history, it is important to carefully evaluate every aspect of the offense to identify a moral character issue.

There is no cookie cutter approach to this issue. Therefore, it is important to get particular legal advice regarding your particular case. Any questions about this article, go ahead and subscribe and then send a question about this article.

NOTE: As always this is for informational purposes only and is not legal advice. Consult an immigration attorney, like myself, for advice regarding your particular circumstances.

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