Conditional Bars to Establishing Good Moral Character (GMC) for Acts in Statutory Period

 

Introduction

Conditional Bars to Establishing Good Moral CharacterIn order to be eligible for certain forms of relief from removal from the United States, such as voluntary departure and cancellation for non-lawful permanent residents (LPRs), the person seeking relief must demonstrate that he or she has been of “good moral character” (GMC) for the period of time for the relief requested (statutory period).1 Certain actions may lead to permanent or conditional bars to establishing GMC. This article, primarily relying on the United States and Citizenship and Immigration Services (USCIS) Policy Manual, will focus on conditional bars to establishing GMC.

General Notes About Establishing Good Moral Character (GMC)

USCIS may find that an applicant warrants a conditional bar to GMC either because he or she violated a specific statute or by using its discretion based on the facts of the specific case.2 If an applicant receives an adverse GMC finding based on conduct prohibited by statute, he or she may seek judicial review of the finding.3

While an applicant with a judicial recommendation against deportation may not be precluded from establishing GMC, though an immigration judge may consider a conviction as a matter of discretion.4

List Of Conditional Bars To Establishing Good Moral Character (GMC)

The following table is lifted from the USCIS Policy Manual. You will find the relevant regulations and statutes for each offense in the footnotes

Offense Description

One or More Crimes Involving Moral Turpitude (CIMTs) 5

Conviction or admission of one or more CIMTs (other than political offense), except for one petty offense

Aggregate Sentence of Five Years or More6

Conviction of two or more offenses with combined sentence of five years or more (other than political offense)

Controlled Substance Violation7

Violation of any law on controlled substances, except for simple possession of 30g or less of marijuana

Incarceration for 180 Days8

Incarceration for a total period of 180 days or more, except political offense and ensuing confinement abroad

False Testimony under Oath9

False testimony for the purpose of obtaining any immigration benefit

Prostitution Offenses10

Engaged in prostitution, attempted or procured to import prostitution, or received proceeds from prostitution

Smuggling of a Person11

Involved in smuggling of a person to enter or try to enter the United States in violation of law

Polygamy12

Practiced or is practicing polygamy (the custom of having more than one spouse at the same time)

Gambling Offenses13

Two or more gambling offenses or derives income principally from illegal gambling activities

Habitual Drunkard14

Is or was a habitual drunkard

Failure to Support Dependents15

Willful failure or refusal to support dependents, unless extenuating circumstances are established

Adultery16

Extramarital affair tending to destroy existing marriage, unless extenuating circumstances are established

Unlawful Acts17

Unlawful act that adversely reflect upon GMC, unless extenuating circumstances are established

 

One Or More Crimes Involving Moral Turpitude (CIMTs)

An applicant who admits to committing one or more CIMTs during the statutory period is barred from establishing GMC for naturalization.18

CIMTs are not statutorily defined.19 However, the USCIS Policy Manual provides two general criteria for what constitutes a CIMT based on judicial precedent and a decision by the Attorney General:

  1. A CIMT “refers generally to conduct that shocks the public consciences as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one's fellow man or society in general.”20
  2. A CIMT must be committed with some form of guilty knowledge.21

In considering whether an offense constitutes a CIMT, immigration officials are instructed to consider the specific facts of the offense and whether the statute it violated contains elements of a CIMT.22

The USCIS Policy Manual (USCIS-PM) lists and describes four categories of crimes that may constitute CIMTs depending on the facts of a specific case and the relevant statutes involved.

1. Crimes Against a Person

A crime against a person constitutes a CIMT either if the offense contains criminal intent or recklessness, or if the offense is defined as morally reprehensible pursuant to a state statute.23 It is possible that offenses that do not contain criminal intent or recklessness may be CIMTs in one state but not in another state.

2. Crimes Against Property

A crime against property constitutes a CIMT when it involves fraud against an individual or the government.24 Certain other crimes against property may be CIMTs in some states pursuant to the relevant statutes of a specific state.

3. Sexual and Family Crimes

The rules for when a sexual or family crime constitutes a CIMT are ill-defined, and thus the determination of whether a specific crime in these categories rises to the level of a CIMT is fact-specific, and depends on applicable state statutes.25 The Policy Manual does advise that any sexual contact with a person whom the perpetrator knows to be a minor does constitute a CIMT.26

4. Crimes Against the Authority of the Government

A crime against the authority of the government will generally rise to constitute a CIMT if it involves fraud.27

If an applicant is only convicted of, or admits to, one CIMT that is considered a “petty offense,” he or she may be eligible for an exception from a conditional bar to establishing GMC provided that:

  • The “petty offense” is the only CIMT the applicant has ever committed;
  • The sentence actually imposed did not exceed six months; and
  • The maximum possible sentence for the crime does not exceed one year28

The conditional bar to establishing GMC for CIMTs is inapplicable to an applicant who was convicted for a CIMT abroad for a “purely political offense.”29 The Policy Manual defines “purely political offense” pursuant to regulations as offenses that “resulted in convictions obviously based on fabricated charges or predicated upon repressive measures against racial, religious or political minorities.”30

AGGREGATE SENTENCE OF FIVE YEARS OR MORE

If an applicant is convicted of two or more sentences during the statutory period for which the combined, imposed sentence was at least five years, he or she may not establish GMC.31

The only exception is if the applicant's convictions were for a “purely political offense abroad.”32

CONTROLLED SUBSTANCE VIOLATION

An applicant is conditionally barred from establishing GMC if he or she was convicted of; or admitted to; violating any controlled-substance related federal or state law or regulation of the United States or of any foreign country during the statutory period.33

This conditional bar to establishing GMC does not apply if the violation was for a single offense of simple possession of 30 grams or less of marijuana.34, 35 However, simple possession of marijuana may be considered toward constituting and “unlawful act” that may bar establishment of GMC.36

INCARCERATION FOR 180 DAYS

If an applicant is imprisoned for at least 180 days during the statutory period, he or she is conditionally barred from establishing GMC.37

The reasons for the imprisonment and whether the event(s) that resulted in the imprisonment happened before or after the statutory period commenced are not relevant, unless the imprisonment resulted from a conviction for a “purely political offense” committed abroad.38

FALSE TESTIMONY UNDER OATH

If the applicant has given false testimony under oath during the statutory period in order to receive any immigration benefit, he or she is barred from establishing GMC.39 False testimony for any other purpose than to receive an immigration benefit does not constitute a conditional bar to establishing GMC under this provision.40

Supreme Court precedent sets forth two criteria for what constitutes false testimony for purpose of leading to the denial of a naturalization application:

  1. The testimony must be oral
  2. The false testimony must constitute an affirmative misrepresentation41

The second point requires that the testimony is found to contain an actual misrepresentation of fact. Incomplete answers do not trigger “false testimony” provided that there are no affirmative misrepresentations of fact.

PROSTITUTION

An applicant is conditionally barred from establishing GMC if he or she has engaged in prostitution, procured or attempted to procure or to import persons for purpose of prostitution, or received any proceeds from prostitution during his or her statutory period.42 Courts have held that “engage in prostitution” in this context requires that a person have engaged in a regular pattern of behavior or conduct.43 Thus, courts have also held that a single act of soliciting prostitution does not constitute “procurement.”44

SMUGGLING of A PERSON

An applicant is conditionally barred from establishing GMC if he or she was involved in the smuggling of an alien into the United Sates in violation of law during his or her statutory period.45 “Involvement” includes encouraging, inducing, assisting, and abetting.46

This conditional bar does not apply if the applicant was involved in smuggling his or her spouse, parent, son, or daughter into the United States before May 5, 1988.47

POLYGAMY

An applicant is conditionally barred from establishing GMC if he or she practices polygamy during the statutory period.48 Note that polygamy is defined as the condition of having multiple spouses at the same time. It is distinct from bigamy, the crime of when a person legally marries someone while already being legally married to someone else (which may pose a conditional bar to establishing GMC under “unlawful acts” but not polygamy).49

GAMBLING

An applicant is conditionally barred from establishing GMC if he or she is either convicted of two or more gambling offenses or derives his or her income principally from illegal gambling activities during the statutory period.50

HABITUAL DRUNKARD

An applicant is conditionally barred from establishing GMC if he or she is found to have been a “habitual drunkard” during the statutory period.51 USCIS may find that an applicant had been a habitual drunkard through certain documents (such as divorce decrees or employment records), unexplained periods of unemployment, arrests related to intoxication, among other documents and records.52

FAILURE TO SUPPORT DEPENDENTS

An applicant who willfully failed to support his or her dependents during the statutory period is conditionally barred from establishing GMC unless he or she can prove that there were extenuating circumstances.53 This conditional bar is also applicable if the obligations to support dependents were abroad.54

Judicial precedent dictates that an applicant may be found to have willfully failed to support his or her dependents, such that he or she is conditionally barred from establishing GMC, even if there was no judicial order to pay child support.55

An applicant may be found to be conditionally barred from establishing GMC for willful failure to support if he or she deserts a minor child, fails to pay any support, or obviously pays an insufficient amount of support.56

An applicant may establish that there were extenuating circumstances for failure to support such that he or she may still establish GMC if:

  • He or she was financially unable to pay child support (although the cause of the inability to pay is relevant to whether he or she may establish GMC), and that he or she made a good-faith effort to pay support in spite of circumstances, or57
  • He or she provides satisfactory evidence that the failure to support was based on the honest, but mistaken, belief that he or she no longer had a duty to pay support, or58
  • He or she demonstrates that nonpayment was due to a miscalculation of court-ordered arrears 59

ADULTERY

An applicant is conditionally precluded from establishing GMC if he or she had an affair that tended to or did destroy an existing marriage during the statutory period.60

The applicant shall not be barred if he or she demonstrates extenuating circumstances that led to the adultery, such as if the applicant divorced his or her spouse only for the divorce to later be found invalid, or if the applicant and his or her spouse were mutually separated and unable to obtain a divorce.61

UNLAWFUL ACTS

This final section contains actions during the statutory period that are not explicitly listed as things that lead to a conditional bar from establishing GMC, but that nevertheless rise to the level of a conditional bar to establishing GMC.62, 63 An “unlawful act” is defined as including any action that is against the law, illegal, or against the moral or ethical standards of the community. It may include actions that led to convictions and/or imprisonment, and actions that did not lead to charges. However, if an applicant was charged and subsequently acquitted, he or she did not commit an “unlawful act.”64

An applicant may demonstrate65 that there were extenuating circumstances that occurred either before or contemporaneously66 with the commission of the unlawful act that should render him or her still able to establish GMC.67

We noted earlier how simple possession of marijuana and bigamy are two examples of conduct that may be considered “unlawful acts.” The USCIS Policy Manual specifies two further categories that may be considered unlawful acts.

(1) Unlawful voting or a false claim of citizenship in order to unlawfully vote that takes place during the statutory period may contribute to establishing an “unlawful act” that conditionally bars an applicant from establishing GMC.68 The following table is courtesy of the USCIS Foreign Policy Manual gives a description of how either of those actions may affect an applicant's ability to establish GMC:

Offense Penalty (if convicted) Effect on GMC
If convicted
Effect on GMC
If Imprisoned
Effect on GMC
If Not Convicted

Unlawful Voting69

May be fined or imprisoned up to 1 years, or both

Unlikely a CIMT, and will not bar GMC by itself

Bars GMC if incarcerated for 180 days or more, or if sentence from convictions total 5 years or more

May bar GMC depending on totality of the circumstances, and on whether exceptions apply

False Claim to Citizenship70

May be fined or imprisoned up to 5 years, or both

CIMT and will bar GMC (may be a felony)

See above

See above

 

In considering the totality of circumstances if the applicant was not convicted of unlawful voting or a false claim to citizenship, immigration officials may consider whether the applicant was permitted to vote in municipal elections (thus potentially leading to a misunderstanding about being permitted to vote in other elections).71

The applicant may be statutorily protected72 from a conditional bar to establishing GMC if the conviction for the violation became final on or after October 30, 2000, and:

  • His or her natural or adoptive parents were U.S. citizens at the time of the violation; and
  • The applicant primarily resided in the United States prior to reaching 16 years of age; and
  • The applicant “reasonably believed” that he or she was a U.S. citizen at the time of the violation

USCIS officials will determine whether the applicant “reasonably believed” that he or she was a U.S. citizen at the time of a violation by looking at the totality of evidence in the case.

(2) An applicant may be conditionally barred from establishing GMC if he or she failed to file tax returns or pay his or her taxes during the statutory period.73 This applies to legally permanent residents (LPRs) who are subject to the same taxes as U.S. citizens. An applicant may be able to establish GMC after failing to file tax returns if:

  • He or she demonstrates filing of the appropriate forms and returns; and
  • That he or she has paid the appropriate taxes or made arrangements to do so74

_____________________

  1. I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. (ALIA Publications 14th ed. 2014), 1335
  2. Kurzban 1335, citing; Matter of Turcotte, 12 I&N Dec. 206 (BIA 1967) where BIA held that certain conduct that did not meet the criteria for a statutory bar to GMC may be considered as a discretionary matter
  3. Kurzban 1337, citing Restrepo v. Holder, 676 F.3d 10 (1st Cir. 2012)
  4. Kurzban 1336, citing; Matter of Gonzalez, 16 I&N Dec. 134 (BIA 1977) and Delgado-Chavez v. INS, 765 F.2D 868 (9th Cir. 1985).
  5. 8 C.F.R. §§ 316.10(b)(2)(i), (iv)  INA § 101(f)(3)
  6. 8 C.F.R. §§ 316.10(b)(2)(ii), (iv); INA § 101(f)(3)
  7. 8 C.F.R. §§ 316.10(b)(2)(iii), (iv); INA § 101(f)(3)
  8. 8 C.F.R. § 316.10(b)(2)(v); INA § 101(f)(7)
  9. 8 C.F.R. § 316.10(b)(2)(vi); INA 101(f)(6)
  10. 8 C.F.R. § 316.10(b)(2)(vii); INA § 101(f)(3)
  11. 8 C.F.R. § 316.10(b)(2)(viii); INA § 101(f)(3)
  12. 8 C.F.R. § 316.10(b)(2)(ix); INA § 101(f)(3)
  13. 8 C.F.R. §§ 316.10(b)(2)(x)-(xi); INA § 101(f)(1)
  14. 8 C.F.R. § 316.10(b)(2)(xii); INA § 101(f)(1)
  15. 8 C.F.R. § 16.10(b)(3)(i); INA § 101(f)
  16. 8 C.F.R. § 316.10(b)(3)(ii); INA § 101(f)
  17. 8 C.F.R. § 316.10(b)(3)(iii); INA § 101(f)
  18. 12 USCIS-PM F.5(A)(2)
  19. 12 USCIS-PM F.5(A)(1)
  20. Id., citing Medina v. United States, 259 F.3d 220, 227 (4th Cir. 2001) quoting Matter of Danesh, 19 I&N Dec. 669, 670 (BIA 1988). Matter of Perez-Contreras, 20 I&N Dec. 615, 618 (BIA 1992). Matter of Flores, 17 I&N Dec. 225 (BIA 1980)
  21. 12 USCIS-PM F.5(A)(1). citing Matter of Silva-Trevino, 24 I&N Dec. 687, 688, 706 (A.G. 2008)
  22. 12 USCIS-PM F.5(A)(1). explaining that a crime that constitutes a CIMT in one state may not constitute a CIMT in another state
  23. 12 USCIS-PM F.5(A)(1)
  24. Id.
  25. Id.
  26. Id.
  27. Id.
  28. 12 USCIS-PM F.5(A)(2), citing; INA § 101(f)(3)
  29. 12 USCIS-PM F.5(A)(2), citing; 12 USCIS-PM F.2(F)
  30. 12 USCIS-PM F.2(F), citing; 22 C.F.R. § 40.21(a)(6)
  31. 12 USCIS-PM F.5(B)
  32. 12 USCIS-PM F.2(F), citing; 22 C.F.R. § 40.21(a)(6), for definition of “purely political offense”
  33. 12 USCIS-PM F.5(C), citing; INA § 101(f)(3), INA § 212(a)(2)(A)(i)(II). 8 C.F.R. § 316.10(b)(2)(ii) and 8 C.F.R. 316.10(b)(2)(iv). 12 USCIS-PM F.2(E)
  34. 12 USCIS-PM F.5(C), citing; INA § 101(f)(3). 8 C.F.R. 316.10(b)(2)(iii).
  35. Kurzban 1335, citing; Matter of Moncada, 24 I&N Dec. 62, 65 & n.4 (BIA 2007) which specified that this does not include if the possession of less than 30 grams of marijuana was in prison
  36. 12 USCIS-PM F.5(C), citing INA § 101(f). 8 C.F.R. 316.10(a)(2)
  37. 12 USCIS-PM F.5(D), citing; INA § 101(f)(6). 8 C.F.R. 316.10(b)(2)(vi)
  38. 12 USCIS-PM F.5(D), citing; 12 USCIS-PM F.2(F)
  39. 12 USCIS-PM F.5(E)(1)
  40. 12 USCIS-PM F.5(E)(2)
  41. 12 USCIS-PM F.5(E)(2), citing; Kungys v. United States, 485 U.S. 759, 780-81 (1988)
  42. 12 USCIS-PM F.5(F), citing; INA § 101(f)(3), INA §§ 212(a)(2)(D)(i)&(ii). 8 C.F.R. 316.10(b)(2)(vii)
  43. 12 USCIS-PM F.5(F), citing; Matter of T, 6 I&N Dec. 474 (BIA 1955)
  44. 12 USCIS-PM F.5(F), citing; Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008)
  45. 12 USCIS-PM F.5(G); citing INA § 101(f)(3) and INA § 212(a)(6)(E). 8 C.F.R. 316.10(b)(2)(viii)
  46. Id.
  47. 12 USCIS-PM F.5(G), citing; INA § 212(a)(6)(E)(ii). §301 of the Immigration Act of 1990 (IMMACT90), Pub. L. 101-649 (November 29, 1990)
  48. 12 USCIS-PM F.5(H), citing; INA § 101(f)(3) and INA § 212(a)(10)(A). 8 C.F.R. 316.10(b)(2)(ix)
  49. 12 USCIS-PM F.5(H)
  50. 12 USCIS-PM F.5(I), citing; INA § 101(f)(5). 8 §§ C.F.R. 316.10(b)(2)(x)&(xi)
  51. 12 USCIS-PM F.5(J), citing;  INA § 101(f)(1). 8 C.F.R. 316.10(b)(2)(xii)
  52. 12 USCIS-PM F.5(J)
  53. 12 USCIS-PM F.5(K), citing; 8 C.F.R. 316.10(b)(3)(i). Hague
  54. Id.
  55. 12 USCIS-PM F.5(K), citing; ​Brukiewicz​ v. ​Savoretti​, ​211 F.2d 541​ (5th Cir. 1954). Petition of ​Perdiak​, 162 F. Supp. 76 (S.D. Cal. 1958). ​Petition of ​Dobric​, 189 F. Supp. 638 (D. Minn. 1960). In re ​Malaszenko​, 204 F. Supp. 744 (D.N.J. 1962) (and cases cited). Petition of ​Dobric​, 189 F. Supp. 638 (D. Minn. 1960). In re ​Huymaier​, 345 F. Supp. 339 (E.D. Pa. 1972). In re ​Valad​, 465 F. Supp. 120 (E.D. Va. 1979). ​
  56. 12 USCIS-PM F.5(K), citing; U.S. v. Harrison​, ​180 F.2d 981​ (9th Cir. 1950).​ In re ​Malaszenko​, 204 F. Supp. 744 (D.N.J. 1962). In re ​Mogus​, 73 F. Supp. 150 (W.D. Pa. 1947).​ In re Halas​, 274 F. Supp. 604 (E.D. Pa. 1967). Petition of ​Dobric​, 189 F. Supp. 638 (D. Minn. 1960).​
  57. 12 USCIS-PM F.5(K), citing; In re ​Huymaier​, 345 F. Supp. 339 (E.D. Pa. 1972).​ Petition of ​Perdiak​, 162 F. Supp. 76 (S.D. Cal. 1958).
  58. 12 USCIS-PM F.5(K), citing; In re ​Valad​, 465 F. Supp. 120 (E.D. Va. 1979).​
  59. 12 USCIS-PM F.5(K), citing; Etape​ v. Napolitano​,​ ​664 F.Supp.2d 498, 517​ (D ​Md​ 2009).​
  60. 12 USCIS-PM F.5(L), citing; 8. C.F.R. § 315.10(b)(3)(ii)
  61. 12 USCIS-PM F.5(L), citing; 12 USCIS-PM F.2(G). In ​re Petition of ​Schroers​,​ 336 F. Supp. 1348 (S.D.N.Y. 1971). In ​re Petition of Russo, ​259 F. Supp. 230 (S.D.N.Y. 1966). ​Dickhoff​ v. Shaughnessy​, 142 F. Supp. 535 (SDNY 1956). ​
  62. 12 USCIS-PM F.5(M), citing; INA § 101(f). 8 C.F.R. §§ 316.10(b)(1)&(2). 8 C.F.R. § 316.10(b)(3)(iii).
  63. Kurzban 1337, citing; Matter of Guadarrama, 24 I&N Dec. 625 (BIA 2008) [reversed immigration jufge finding that a false claim to USC on I-9 automatically bars establishment of GMC because of INA § 101(f)] and Sumbundu v. Holder, 602 F.3d 47 (2d Cir. 2010) [upholding use of provision to deny cancellation where applicants had a “grossly inaccurate and probably fraudulent reporting of tax income” for many years]
  64. 12 USCIS-PM F.5(M)
  65. 12 USCIS-PM F.5(M), citing; 8 C.F.R. § 316.10(b)(3)(iii).
  66. 12 USCIS-PM F.5(M), citing; Jean-Baptiste v. United States​, ​395 F.3d 1190 (11th Cir.2005) citing ​Rico v. INS, ​262 F. Supp.2d 6 (E.D.N.Y.2003).​
  67. 12 USCIS-PM F.5(M), citing; INA § 101(f). 8 C.F.R. § 316.10(b)(3)(iii).
  68. 12 USCIS-PM F.5(M)(1), citing; 18 U.S.C. § 611 (voting by aliens). 18 U.S.C. 1015(f) (false claim to citizenship)
  69. 18 U.S.C. § 611
  70. 18 U.S.C. § 1015(f)
  71. 12 USCIS-PM F.5(M)(1)
  72. 12 USCIS-PM F.5(M)(1), citing for unlawful voting exception; INA § 101(f), INA § 212(a)(10)(D)(ii), and INA 237(a)(6)(B). Citing for false claims to U.S. citizenship exception; INA 212(a)(6)(C)(ii)(II) and INA 237(a)(3)(D)(i).
  73. 12 USCIS-PM F.5(M)(2)
  74. Id.

Resources and materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 1335-1337,. Print. Treatises & Primers.