Criminal Issues and Naturalization

Criminal Issues and Naturalization

Cheryl R. David

Relevant Statutes, Regulations, Manual

·  INA §316 – Naturalization Statute

·  INA §101(f) – Definition of Good Moral Character

·  8 CFR §316 – General Requirements for Naturalization

·  Adjudicator’s Field Manual – Ch. 71 - 75

Good Moral Character

One of the prerequisites for naturalization is demonstrating good moral character. Obviously, a criminal arrest can not only affect eligibility, but also land your client in removal proceedings. An applicant must demonstrate good moral character for five years (or three years based on marriage to a U.S. citizen) preceding the application. INA §101(f).

“During all the periods referred to in the subsection [the petitioner] 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.” INA §316(a)(3)

If there is a commission of a crime, convictions of a crime, or confinement in a penal institution within the requisite statutory period, it is likely he will be precluded from establishing eligibility. The definition of good moral character at INA §101(f) incorporates by reference certain grounds of inadmissibility. INA §101 (f)(3) states that the crime itself acts as a bar, regardless of whether the individual is actually inadmissible.

Automatic Bars to GMC

INA §101(f) and 8 CFR §316.10(b) set forth the bars that preclude a person from establishing GMC.

Applicants are barred from establishing GMC if they committed the following offenses during the relevant statutory period:

·  Prostitution and commercialized vice

·  Alien smuggling

·  Crimes of moral turpitude (unless petty offense or juvenile exceptions apply)

·  Drug crimes, except single possession of 30 grams or less of marijuana

·  Multiple crimes with a total sentence of five years or more

·  Drug trafficking

·  Two or more gambling offenses

·  False testimony to obtain an immigration benefit

·  Assistance in Nazi persecution, participation in genocide, or commission of acts of torture or extrajudicial killings

·  Severe violations of religious freedom by foreign government official

Under these provisions, the following persons are permanently barred from establishing GMC:

·  Persons who have ever been convicted of murder

·  Persons convicted of an aggravated felony on or after November 29, 1990

Further, a person cannot establish GMC if during the relevant statutory period he or she is or was:

·  Confined to a penal institution for 180 days or more

·  A habitual drunkard

·  A polygamist

·  A person who derived his or her income principally from illegal gambling

The statutory bar is not applicable unless the person was convicted.

The Residual Clause:

A person may lack good moral character even if the person does not fit within any of the categories outlined. Each applicant’s good moral character is evaluated on a case by case basis. 8 C.F.R §316.10(a)(2). Even if the applicant is not precluded from establishing good moral character by statute, U.S. Citizenship and Immigration Service “CIS” applies the standard of the average citizen in the community of residence to determine whether the applicant complies with the good moral character requirements. Id.

In the naturalization context, the regulations for establishing GMC specifically delineate other factors that bear on the determination. Under 8 CFR §316.10(b)(3), unless the applicant establishes “extenuating circumstances,” an applicant who (1) has willfully failed to support dependents; (2) had an extramarital affair that tended to destroy an existing marriage; or (3) committed other unlawful acts that adversely reflect on the applicant’s moral character, may be found to lack GMC.

Having received relief from deportation does not necessarily establish a persons good moral character for purposes of naturalization. INA §318.

Probation:

Having been on probation for part of the statutory period required for good moral character will not prevent a person from naturalizing. 8 C.F.R. §316.10(c)(1). However, CIS will not grant a naturalization application while a person is still on probation. 8 C.F.R. §316.10(c)(1).

Presenting a naturalization application when your client is removable:

Understand the risks involved. If the individual is denied, you must ask:

Will they be subject to removal proceedings?

Will they be subject to mandatory detention?

Are they eligible for relief?

Present the case as you would if you were applying for a discretionary waiver before the immigration judge. Present all equities regarding the family, employment, rehabilitation, hardship to family members, property, accomplishments of the children.

It is important to include a memorandum explaining eligibility and how the individual has established good moral character despite the criminal case.