STATUTORY AND
DISCRETIONARY BARS TO FINDINGS OF
By Roman P. Mosqueda, Esq.
A finding of good moral character is required for eligibility to: naturalization to United States citizenship, cancellation of removal, voluntary departure in removal proceedings, registry, adjustment of status to lawful permanent resident, and readmission after deportation or removal.
Indeed, persons who have been convicted of crimes of moral turpitude, or who admit having committed such crimes are statutorily inadmissible. And persons coming to the United States to practice polygamy are excluded.
And even in the absence of statutory ineligibility, a finding of lack of
good moral character may be made as a matter of discretion. But the Board of Immigration Appeals has long held in Matter
of Sanchez-Linn, 20 I&N Dec. 362 (BIA 1991), that good moral character
does not mean moral excellence; and it is not destroyed by a single incident.
Good Moral Character In Naturalization:
The statutory requirement of good moral character for naturalization covers the requisite five (5) years or three (3) years (for a spouse of a U.S. citizen) of continuous residency subsequent to lawful permanent status, up to the time of admission to citizenship.
Indeed, Section 316(a)(3) of the Immigration and Nationality Act states that the applicant: “during all the periods referred to in this subsection (5 or 3 years up to admission to citizenship) has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.”
But the Attorney General (the United States Citizenship and Immigration
Services) and the Federal District Court (which has jurisdiction to review
denial of the naturalization application) are “not limited to the
applicant’s conduct during the five (or three) years preceding the filing of
the (citizenship) petition, but may take into consideration, as a basis for such
determination, the applicant’s conduct and acts at any time prior to that
period,” per Section 316(e) of the Act.
Statutory
Bars to Citizenship:
The statutory bars to naturalization are listed in Section 101(f) of the Act, which states as follows: “No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was:
1. a habitual drunkard;
2. a member of one or more classes of persons involved in prostitution related activities, unlawful commercialized vice, (or) smugglers, illicit controlled substance trafficker, etc.;
3. a person whose income is derived principally from illegal gambling activities;
4. a person convicted of two or more gambling offenses committed during such period;
5. a person who has given false testimony for the purpose of obtaining any immigration benefit;
6. a person confined to a penal institution for an aggregate period of one hundred eighty (180) days or more, regardless of whether the offense, or offenses were committed within or without such period;
7. a person who at any time has been convicted of an aggravated felony;
8. a person who falsely claimed citizenship or registered to vote or voted in violation of restrictions, unless:
(a) each natural parent of the alien is or was a citizen;
(b) the alien permanently resided in the United States prior to sixteen years old; and
(c) the alien reasonably believed at
the time of such claim or act that he or she was a citizen.
Non-Statutory Grounds For Lack of Good Moral Character:
Case law has established non-statutory, discretionary grounds used by the federal courts and Board of Immigration Appeals to establish lack of good moral character.
Some of these grounds are: non-payment of income, taxes, under reporting
of income, fraudulent information on income tax return, submission of false
document, non-support of dependents, failure to register between eighteen (18)
and twenty-six (26) years with the Selective Service, and criminal conduct not
resulting in conviction.
Good Moral Character In Removal and Other Proceedings:
The same statutory and non-statutory or discretionary grounds for lack of good moral character discussed above, apply in removal proceedings.
For application of voluntary departure, the alien must establish good moral character for five (5) years. And for application for cancellation of removal, for a non-lawful permanent resident, the alien must likewise establish good moral character for ten (10) years, and no conviction of any aggravated felony.
In order to obtain lawful permanent resident status through registry, the alien must:
(1) have entered the United States before January 1, 1972;
(2) have maintained continuous residence in the United States;
(3) show current good moral character; and
(4) not ineligible for citizenship, not inadmissible and not deportable/removable as a terrorist or Nazi.
Unlike in naturalization and in removal proceedings, there is no required time period for good moral character for registry.
In the application for adjustment of status, Form I-485, Part 3 questions
seek to elicit answers on any criminal background of the applicant.
But any “yes” answer to any commission of any crime of moral
turpitude does not necessarily mean ineligibility.
An explanation of a “yes” answer is, however, required on a separate
piece of paper.
For readmission or re-entry after deportation or removal, the Attorney General (United States Citizenship and Immigration Services) has to give consent to readmission.
Adjudication or determination of readmission likewise requires a finding of good moral character of the applicant by the United States Citizenship and Immigration Services, as discussed in Matter of Lee, 17 I&N Dec. 275 (Comm. 1978).