When is a person a good person? The law is rather clear. However, USCIS continues to engage in a campaign to rewrite the law to get it getter authority to deny otherwise qualified applicants for naturalization. This is part of the administration's vigorous effort to slant the law against approving an application instead of toward approving an application. The latest twist ignores years of litigation that established clear boundaries for who can and cannot prove whether they are a person of good moral character.
When making the decision to apply for naturalization, there are several items an applicant must consider. The requirements to apply for naturalization are as follows:
- Be at least 18 years old at the time of filing Form N-400, Application for Naturalization;
- Be a permanent resident (have a “Green Card”) for at least 5 years;
- Show that you have lived for at least 3 months in the state or USCIS district where you apply;
- Demonstrate continuous residence in the United States for at least 5 years immediately preceding the date of filing Form N-400;
- Show that you have been physically present in the United States for at least 30 months out of the 5 years immediately preceding the date of filing Form N-400;
- Be able to read, write, and speak basic English;
- Have a basic understanding of U.S. history and government (civics);
- Be a person of good moral character; and;
- Demonstrate an attachment to the principles and ideals of the U.S. Constitution.
In general, applicants must show they have been, and continue to be, people of good moral character during the statutory period before filing for naturalization and up until they take the Oath of Allegiance. The statutory period is generally five years for permanent residents of the United States, three years for applicants married to a U.S. citizen, and one year for certain applicants applying on the basis of qualifying U.S. military service.
While some may assume that the good moral character requirement is the easiest criteria to fulfill, in actuality, this is where most applications now fail. The commission of, or conviction or imprisonment for, any unlawful act during the statutory period for naturalization, may render an applicant ineligible for naturalization should the act be found to adversely reflect on moral character. On December 13, 2019, U.S. Citizenship and Immigration Services expanded its policy guidance regarding which unlawful acts may prevent an applicant from meeting the good moral character requirement for naturalization.
Previously, the USCIS Policy Manual did not include extensive information on unlawful acts. This update to the Policy Manual provides additional examples of unlawful acts and instructions, and further identifies unlawful acts that may affect good moral character based on judicial precedent. However, keep in mind that USCIS’ analysis of an unlawful act is not limited by the examples listed in the Policy Manual, so if you have committed an act that is not listed in the Policy Manual, USCIS can still determine that it is an unlawful act.
Under the Immigration and Nationality Act (INA), an applicant for naturalization must establish good moral character. Although the INA does not directly define good moral character, it does describe certain acts that bar establishing good moral character of an applicant. Examples of unlawful acts recognized by case law as barring good moral character include, but are not limited to, the following:
- bail jumping;
- bank fraud;
- conspiracy to distribute a controlled substance;
- failure to file or pay taxes;
- false claim to 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.
Additionally, on Dec. 10, USCIS issued separate policy guidance in the USCIS Policy Manual about how two or more convictions for driving under the influence or post-sentencing changes to criminal sentencing might affect good moral character determinations. USCIS in reality has been all over the map in the last twenty four months. USCIS has rejected naturalization applications because a person had multiple snow parking violations during the five year period. While these are clear examples USCIS is highlighting as negative character acts, it is foolhardy to assume this list is exhaustive. It is not.
USCIS officers will continue to perform a case-by-case analysis to determine whether an act is unlawful and adversely reflects on an applicant's good moral character. Additionally, they must also determine whether there are extenuating circumstances, i.e. some force outside of the person’s control which could create an excuse for the applicant. However, an extenuating circumstance must pertain to the unlawful act and must precede or be contemporaneous with the commission of the unlawful act.
In conclusion, this new policy guidance suggests that if an applicant has broken any sort of law, even if not a crime specifically mentioned in U.S. immigration law as an automatic bar to citizenship, USCIS will use its discretion to claim a failure to demonstrate good moral character. Notably, USCIS does not comment on a person's ability to prove reformation. The law, however, requires it. This issue is going to create more contentious applications, and new challenges to the agency's authority in the coming months.
