I. What is Good Moral Character (GMC)?
Unlike a criminal statute that consists of legal elements, there are no specific elements that define good moral character for the purpose of an immigration proceeding. Good moral character is commonly interpreted to mean that your behavior must meet the moral standard of the average citizen. In naturalization proceedings it is an absolute requirement that you demonstrate GMC.
II. GMC during the Statutory Period of 5 Years
The Permanent Resident will be required to demonstrate GMC for a minimum statutory period of the 5 continuous years preceding submission of an application to become a naturalized citizen. This is commonly referred to as the statutory period.
III. GMC Beyond the Statutory Period of Five Years
When the Adjudicator finds that the applicant for naturalization committed acts demonstrating a lack of GMC outside of the statutory period, and has not shown rehabilitation or a change in behavior during the statutory period, the adjudicator has discretion whether to find a lack of GMC and deny the application for that reason.
Consideration of the applicant’s conduct and acts outside the statutory period is specifically sanctioned by law if the applicant’s conduct during the statutory period does not reflect reform of character or the earlier conduct is relevant to the applicant’s present moral character. See section 316(e) of the Immigration and Nationality Act (the Act) and 8 CFR 316.10(a)(2). USCIS Adjudicator’s Field Manual.
IV. Good Moral Character after the Interview and before the Ceremony
Be aware that the permanent resident is not home free if the adjudicator has approved his/her application at the interview. You are not a Naturalized United States Citizen until AFTER you have been sworn in at a ceremony. Any act that demonstrates a lack of GMC during the period between the interview and the ceremony may result in the revocation of the adjudicator’s decision and your naturalization may be denied.
The investigation into the applicants GMC is broad and can span many years. The investigation will continue right up until the permanent resident is sworn in to become a naturalized citizen. Even after the permanent resident has naturalized the status can be revoked if it is discovered that you have concealed a matter, lied, or committed fraud in order to obtain the naturalization.
The author’s purpose in Part I of this series was to convince the reader of the importance of Good Moral Character in seeking naturalization. Hopefully you are convinced and you will read on. In Part II we will discuss acts that demonstrate a lack of GMC.
Part II: Naturalization and Good Moral Character
I. Good Moral Character (GMC): The courts have held that GMC is character that measures up to the standards of the average citizens of the community. Any act or conduct that offends the moral character of the average citizen in the community may be considered as evidence of a lack of GMC EVEN IF the permanent resident was not arrested for the behavior or if arrested was not convicted.
Good Moral Character (GMC) is determined on a case-by-case basis. Section 101(f) of the Immigration and Nationality Act and 8 CFR 316.10 specifically provide that GMC cannot be established where some types of criminal conduct has occurred.
II. Permanent Statutory Bars to Establishing Good Moral Character
There are some criminal acts that will prevent the ability to show GMC FOREVER and will lead to deportation. This rule applies regardless of how long you have been in the United States, how many children you have and whether you have a spouse.
1. Murder. If a permanent resident is convicted of murder he/she will never be able to show GMC. 8 CFR 316.10(b)(1)(i). The Adjudicators Field Manual specifically states that, “you should deny the naturalization and consider whether the case should be referred for removal proceedings.”
2. Keep in mind that causing another person’s death is not necessarily murder – accidents do happen. The author represented a permanent resident who was detained by ICE because he was a fault in a car accident that resulted in the death of the other driver. The client was not deported and is now a United States Citizen. The death of the other driver was an accident and was not murder for the purposes of immigration.
3. A permanent resident convicted of an aggravated felony that was committed on or after November 29, 1990 is permanently barred from showing GMC. INA 101(a)(43) What constitutes an aggravated felony varies. Some crimes are aggravated felonies only if they carry a sentence to confinement of more than one year. Other crimes such as crimes of violence and drug crimes (other than possession of marijuana less than 30 grams) are aggravated felonies regardless of the sentence. Theft crimes are aggravated felonies depending on the value of what was taken and/or the sentence.
III. Statutory Bars to Good Moral Character
1. Crimes Involving Moral Turpitude (CIMT): Regardless of whether the permanent resident was arrested or convicted or merely admits to committing one or more crimes involving moral turpitude during the statutory period he/she cannot establish GMC and is ineligible for naturalization. See 8 CFR 316.10(b)(2)(i).
IV. Other Acts that prevent a showing of Good Moral Character: There are acts not normally charged as crimes, though they technically are crimes, that may result in a finding that a permanent resident does not have the GMC necessary to become a naturalized US citizen:
• Failure to Pay Taxes or Failure to File an Honest Tax Return: Paying your taxes is evidence that you have the GMC required in order to Naturalize. The failure to pay taxes or the failure to file an honest tax return may result in a finding that you lack GMC. Over the past few years the Immigration Court and the USCIS have looked more closely at the tax returns of applicants and made decisions based on their findings.
• Failure to Pay Child Support: An applicant for Naturalization will be required to provide the adjudicator with a copy of any child support order and evidence that he/she is current with his/her payments. Being delinquent in paying child support is not an absolute bar to a finding of GMC but the permanent resident better have a good reason for the delinquency if you he/she wants a positive decision.
• Failure to pay fines for traffic violations or non-moving violations. Where the permanent resident has more than one outstanding fine the adjudicator has the discretion to find a lack of GMC and can require the applicant to wait for the statutory period to expire.
• Not being Truthful on the Application or at the Interview: Getting caught in a lie can carry the worst consequences and will result in a finding of a lack of GMC. The adjudicator can make your life miserable and it may end up costing you dearly to clear up the situation – if it is even possible. When in doubt how to answer a question on the application or at the interview, retain an experienced immigration attorney to assist and prepare you. Yes, you may have to pay for their services, but if you are serious about becoming a US Citizen you need to consider making the investment.
The best defense against a finding that a permanent resident does not have the GMC to become a naturalized citizen is to know the behavior that may constitute a lack of GMC for immigration purposes and avoid it. In Part III of this article we will discuss what to do if you are found by the adjudicator not to have GMC.
Part III: Naturalization and Good Moral Character (GMC)
The Adjudicating Officer has found that I lack GMC and has denied my application to naturalize. Now what?
II. The first question is; What was the officer’s basis for finding that you lack GMC? Was the decision a result of a statutory bar that precludes the applicant from establishing GMC, (see part II of this article.) or was the decision the result of a discretionary finding made by the adjudicating officer. Some acts effectively and permanently bar an applicant from naturalizing and the officer has no discretion to grant the application. Other acts allow the adjudicating officer some discretion. where the officer has discretion, he/she may take into consideration the nature of the offense(s), the applicant’s overall conduct, and other factors relevant to the definition of good moral character.
III. Where the adjudicating officer had discretion whether to grant your petition, and he made the decision to deny it, you may want to request that the adjudicator give you time to provide additional evidence. You may also request he/she provide you with a Notice of Intent to Deny. If this is not feasible then you will have up to 90 days to provide additional evidence. If the officer will not give you a Notice of Intent to Deny but denies you at the interview then you have (30) days to appeal the decision of the adjudicator to his supervisor.
IV. The acts that preclude the adjudicating officer from finding GMC may also prevent you from renewing your green card. By filing an application for naturalization or to renew your permanent resident status, you may trigger a referral to the immigration court for deportation proceedings. Being referred to the court may not always be the worst scenario. Sometimes the court can grant you relief that the USCIS could not grant.
V. Conclusion: The best defense is to remain on the offensive. If you have a goal to become a naturalized US citizen know the laws and know the requirements well before you ever apply. However, if you find yourself in a bad situation that may result in a finding that you lack the GMC to naturalize, your best alternative it to retain an experienced immigration attorney to assist you.
The purpose of this article is to give the reader a general idea of the requirement of GMC in order to become a naturalized US citizen. This article is not legal advice for the reader and should not be followed without consulting with an experienced immigration attorney regarding your case. Every case carries its own factual scenario. Based on the individual facts of a case the progress of the case, the defenses available and the requirements will differ.