Imagine a scenario in which a Form N-400 Application for Naturalization is denied on the basis of lack of moral character due to a past charge or conviction. This may seem disheartening, but there are ways to fight a denial based on moral character. Some of these defenses and an explanation of what constitutes good moral character are outlined below.
Good Moral Character:
INA §316 states that (a) No person, except as otherwise provided in this title, shall be naturalized, unless such applicant (3) during all the periods referred to in this subsection 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. Under 8 CFR 316.10, Unless the applicant establishes extenuating circumstances, the applicant shall be fond to lack good moral character if, during the statutory period, the applicant (iii) committed unlawful acts that adversely reflect upon the applicant’s moral character, or was convicted or imprisoned for such acts although the acts do not fall within the purview of §316.10(b) (1) or (2).
The text of §316(10) is as follows:
§ Sec. 316.10 Good moral character
(b) Finding of a lack of good moral character.
(2) An applicant shall be found to lack good moral character if during the statutory period the applicant:
(i) Committed one or more crimes involving moral turpitude, other than a purely political offense, for which the applicant was convicted, except as specified in Section 212(a)(2)(A)(ii)(II) of the Act;
(ii) Committed two or more offenses for which the applicant was convicted and the aggregate sentence actually imposed was five years or more, provided that, if the offense was committed outside the United States, it was not a purely political offense;
(iii) Violated any law of the United States, any State, or any foreign country relating to a controlled substance, provided that the violation was not a single offense for simple possession of 30 grams or less of marijuana;
(iv) Admits committing any criminal act covered by paragraphs (b)(2)(i), (ii), or
(iii) of this section for which there was never a formal charge, indictment, arrest, or conviction, whether committed in the United States or any other country;
(vii) Is or was involved in prostitution or commercialized vice as described in Section 212(a)(2)(D) of the Act
So, just what is moral character? The courts have held that good moral character means character which measures up to the standards of average citizens of the community in which the applicant resides. Any conduct or acts which offend the accepted moral character standards of the community in which the applicant resides are considered, without regard to whether the applicant has been arrested or convicted.
The “Petty Offense Exception”
Section 316(10)(2)(i) states that an individual who commits an act of moral turpitude lacks good moral character. This begs the question of just what constitutes moral turpitude?
Moral turpitude refers to conduct which is inherently base, vile or depraved, contrary to the accepted roles of morality and the duties owed between men and men, either one’s fellowman or society in general. Neither the seriousness of the offense or the severity imposed determines whether or not a crime involves moral turpitude.
However, if a respondent has only one criminal offense, an exception commonly called the “petty offense exception” may be available. See INA § 212(a)(2)(A)(ii)(II). This applies if the maximum sentence imposable for the offense was one year, and the respondent received a sentence of six months or less. This provision generally does not cover felonies, since the maximum sentence for most felonies is more than one year. However, respondents with misdemeanor convictions for “wobbler” offenses (those chargeable as either a misdemeanor or a felony) may be able to use the petty offense exemption if they can get their offense classified as a misdemeanor. See Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. 2003).
Possibility of Waiver
In addition to the “petty offense exception”, there is also the possibility of waiver. Applicants with certain criminal backgrounds may apply for a waiver under INA §212(h) in certain circumstances. A waiver exists under INA §212(h) for certain criminal grounds of inadmissibility listed in INA 212(a)(2).
The §212(h) waiver applies to several types of situations, and includes waivers for: (1) conviction of a crime involving moral turpitude (CIMT); (2) violation of a law or regulation relating to a controlled substance, but only as it relates to a single offense of a simple possession of 30 grams or less of marijuana; (3) multiple criminal convictions for which the aggregate sentence of confinement was at least five years; (4) Involvement in prostitution or commercialized vice; and (5) those who committed a serious criminal offense, exercised immunity from criminal jurisdiction, and departed from the United States.
There are two waivers available under INA §212(h)(1). A waiver is available under INA §212(h)(1)(A) if the immigrant establishes that:
- The activities for which the alien is excludable occurred more than 15 years before the date of the alien’s application for a visa, entry or adjustment of status (unless the alien is excludable for prostitution under INA §212(a)(2)(D)(i) or INA §212(a)(2)(D)(ii), in which case the 15 year time period is not required),
- The admission to the United States of such alien would not be contrary to the national welfare, safety or security of the United States, and
- The alien has been rehabilitated.
A waiver is also available for close family members under INA §212(h)(1)(B) if the immigrant establishes that:
1. He or she is the spouse, parent, son or daughter of a United States citizen or an alien lawfully admitted for permanent residence; and
2. That the alien’s exclusion would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son or daughter of such alien.
If the applicant qualifies for the waiver because of his or her qualifying relationship to a USC or LPR, the applicant must demonstrate that his or her denial of admission would result in extreme hardship to the qualifying family members. Factors to be considered in determining the existence of extreme hardship are established by the Board in Matter of Anderson (16 I&N Dec. 596 (BIA 1978)).
The following factors were enumerated:
1. Nonimmigrant’s age;
2. Length of residence in the United States;
3. Family ties in the United States and abroad;
5. Financial status, business or occupation;
6. Possibility of other means of adjustment of status;
7. Nonimmigrant’s immigration history;
8. Nonimmigrant’s position in the community; and
9. Economic and political conditions in the country to which the nonimmigrant may be returned.
All factors must be considered in its entirety. No one factor will be sufficient in itself to justify a finding of extreme hardship; neither will the absence of one factor preclude a finding of extreme hardship. Each case must be carefully evaluated and all possible factors must be weighed together.
No waiver shall be granted in the case of an alien who has previously been admitted to the United States as a permanent resident if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for at least 7 years immediately preceding the date of imitation of proceedings to remove the alien from the United States. No court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver.
It is important to remember that if an individual is denied due to a lack of moral character for a minor crime, that individual can apply for reconsideration and have another chance at gaining citizenship.
Moral character is decided on a case-by-case basis, so there is no way to be sure an applicant will be accepted, but an applicant’s criminal history is weighed against factors like work history, volunteer work and a history of supporting a family and children.
When reapplying, evidence of rehabilitation after a criminal conviction may also help an applicant’s case.