CITIZENSHIP AND NATURALIZATION
In order to become a U.S. Citizen, the resident of the U.S. must be a “person of good moral character.” What is the definition of “person of good moral character”?
On Oct. 25, 2019 the attorney general decided in Matter of Castillo-Perez that two or more DUI convictions during the statutory period could affect an applicant’s good moral character determination. When applying for an immigration benefit for which GMC is required, applicants with two or more DUI convictions may be able to overcome this presumption by presenting evidence that they had good moral character even during the period within which they committed the DUI offenses. The term 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 an individual to operate a motor vehicle while impaired.
Under the Immigration and Nationality Act (INA), an applicant for naturalization must establish GMC. Although the INA 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 claim 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.
Volume 12, Part F of USCIS Policy Manual addresses all the issues related to Good Moral Character during application for Naturalization.
Applicable Statutory Period
In general, the statutory period for GMC for an applicant filing under the general naturalization provision starts five years prior to the date of filing. In all cases, the applicant must also show that he or she continues to be a person of GMC until the time of his or her naturalization. USCIS is not limited to reviewing the applicant’s conduct only during the applicable GMC period. An applicant’s conduct prior to the GMC period may affect the applicant’s ability to establish GMC if the applicant’s present conduct does not reflect a reformation of character or the earlier conduct is relevant to the applicant’s present moral character. In general, an officer must consider the totality of the circumstances and weigh all factors, favorable and unfavorable, when considering reformation of character in conjunction with GMC within the relevant period. The following factors may be relevant in assessing an applicant’s current moral character and reformation of character:
- Family ties and background;
- Absence or presence of other criminal history;
- Employment history;
- Other law-abiding behavior (for example, meeting financial obligations, paying taxes);
- Community involvement;
- Credibility of the applicant;
- Compliance with probation; and
- Length of time in United States.
Statutory Definition of Conviction for Immigration Purposes
Most of the criminal offenses that preclude a finding of GMC require a conviction for the disqualifying offense or arrest. A “conviction” for immigration purposes means a formal judgment of guilt entered by the court. A conviction for immigration purposes also exists in cases where the adjudication of guilt is withheld if the following conditions are met:
- A judge or jury has found the alien guilty or the alien entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt; and
- The judge has ordered some form of punishment, penalty, or imposed a restraint on the alien’s liberty.
In cases where adjudication is deferred, the original finding or confession of guilt and imposition of punishment is sufficient to establish a conviction for immigration purposes because both conditions establishing a conviction are met.
Immigrants have to consult immigration attorneys priior to entering into first time offender’s programs to avoid consequences of criminal acts. If the accused is directed to attend a pre-trial diversion or intervention program, where no admission or finding of guilt is required, the order may not count as a conviction for immigration purposes.
In general, a guilty verdict, ruling, or judgment in a juvenile court does not constitute a conviction for immigration purposes. A conviction for a person who is under 18 years of age and who was charged as an adult constitutes a conviction for immigration purposes.
If a judgment is vacated for cause due to Constitutional defects, statutory defects, or pre-conviction errors affecting guilt, it is not considered a conviction for immigration purposes. The judgment is considered a conviction for immigration purposes if it was dismissed for any other reason, such as completion of a rehabilitative period (rather than on its merits) or to avoid adverse immigration consequences.
A conviction vacated where a criminal court failed to advise a defendant of the immigration consequences of a plea, which resulted from a defect in the underlying criminal proceeding, is not a conviction for immigration purposes.
An applicant who has received a full and unconditional executive pardon prior to the start of the statutory period may establish GMC if the applicant shows that he or she has been reformed and rehabilitated prior to the statutory period.
Expunged Records and the Underlying Conviction
A record of conviction that has been expunged does not remove the underlying conviction. The Board of Immigration Appeals (BIA) has held that a state court action to “expunge, dismiss, cancel, vacate, discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute” has no effect on removing the underlying conviction for immigration purposes. The officer may require the applicant to submit evidence of a conviction regardless of whether the record of the conviction has been expunged. It remains the applicant’s responsibility to obtain his or her records regardless of whether they have been expunged or sealed by the court. USCIS may file a motion with the court to obtain a copy of the record in states where the applicant is unable to obtain the record.
Effect of Probation
An officer may not approve a naturalization application while the applicant is on probation, parole, or under a suspended sentence. However, an applicant who has satisfactorily completed probation, parole, or a suspended sentence during the relevant statutory period is not automatically precluded from establishing GMC. The fact that an applicant was on probation, parole, or under a suspended sentence during the statutory period, however, may affect the overall GMC determination.
An applicant who has been convicted of an “aggravated felony” on or after November 29, 1990, is permanently barred from establishing GMC for naturalization purposes.
IMMIGRATION SERVICES IN HIGHEST DEMAND
United States Citizens and Lawful Permanent Residents can sponsor certain family members for permanent residence in the United States. This is the most common method of obtaining one’s “green card.” An individual can apply for a...
An individual may be eligible to become a permanent resident based on an offer of permanent employment in the United States. Most categories require an employer to get a labor certification through PERM and then file Form I-140...
Green cards may be available to investors and entrepreneurs who are making an investment in an enterprise that creates new U.S. jobs. One must invest $1,000,000, or at least $500,000 in a targeted employment area in new commercial enterprise....
A U.S. citizen who intends to marry a foreign national within 90 days of his or her fiancé(e) entering the United States, and both are free to marry, can apply for K-1 fiancé visa. The law requires that the couple met each other, in person...
The H-1B visa classification permits a foreign national to work in the United States for a temporary period. US employer should offer a position of employment that is in a specialty occupation and pay prevailing wage to satisfy H-1B requirement.
The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture...
The judge may cancel removal in the case of an individual who is inadmissible or deportable from the United States, if such individual (1) has been an alien lawfully admitted for permanent residence for not less than 5 years...
All grounds of inadmissibility are listed in INA §212, regardless of the fact that individual is otherwise inadmissible, he or she may be admitted into the United States temporarily by the discretion of the Attorney General.
Affidavit of Support, Form I-864, is legally required for many family-based and some employment-based immigrants to show they will have adequate means of support after immigration to the United States. Every petitioner for his or...