Hey! I have a question: What the Heck is Good Moral Character?

This is a topic that I could go on and on about. Unfortunately, there is no single sentence answer, and for clients this can be frustrating. However, I will discuss Good Moral Character in the context of citizenship, since that is a major focus during the naturalization application process.

So What is Good Moral Character you ask? Here is my page full:

A naturalization applicant is required to have Good Moral Character among other requirements to become a United States Citizen (“USC”). Many applicants may think, “well I’m a good person, right? So I must automatically qualify for the Good Moral Character (“GMC”) requirement.”

This is a wrong assumption. Immigration Officers have a broad criteria to determine factors that reflect negatively on the Good Moral Character of the naturalization applicant. See INA § 316.10 (2). Good Moral Character is determined on a case-by-case basis “taking into account . . . the standards of the average citizen in the community of residence.” See INA § 316.10(2). The time period during which an immigration officer evaluates the GMC of the applicant is not limited to the 3 or 5 years preceding the naturalization application or during which the applicant has been a legal permanent resident and the officer may look at the acts or behaviors of the applicant beyond this time if any such acts are relevant to an evaluation of the GMC. See INA § 316.10(2).

The clearly stated acts that will result in the applicant being denied for lack of good moral character and a permanent bar to US citizenship are:

1.    Murder at any time; and

2.    Aggravated Felony as defined under INA section 101(a)(43). See INA § 316.10(2)(b). The list of Aggravated Felonies under INA § 101 (a)(43) warrants a whole other article. However, aggravated felonies for immigration purposes don't necessarily involve physical violence and includes such crimes as failure to appear for service of sentence if the crime is punishable by imprisonment of 5 years or more, or certain cases of bribery or  forgery. 

            Acts that will not necessarily result in a permanent bar from naturalization, but which will result in a “lack of good moral character” finding if committed during the relevant statutory 3 and 5 years preceding the naturalization application include:

1. Crimes of moral turpitude (discussed further below)

2. Two or more “offenses” for which the applicant was “convicted” and the total sentence imposed was 5 years or more. (except for purely political offenses committed outside of the United States).

3. Offenses anywhere in the world involving a controlled substance (but excludes a single offense for simple possession of 30 grams or less of marijuana).

4. Admission of crimes of moral turpitude, two or more offenses punishable by a 5 or more year sentence, and possession of a controlled substance, even if there was “no formal charge, indictment, arrest, or conviction.” See INA § 316.10(b)(2)(iv).

5. Imprisonment for a total of 6 months or more for a conviction or convictions (except for purely political reasons outside of the United States). See INA § 316.10(b)(2)(v).

6. False testimony to obtain any benefit under the Immigration and Nationality Act. See INA § 316.10(b)(2)(vi).

7. Involvement in prostitution and commercialized vice. See INA § 316.10(b)(2)(vii) and INA § 212(a)(2)(D).

8. Human Trafficking. See INA § 316.10(b)(2)(viii) and § 212(a)(6)(E).

9. Past or Present Polygamy. See INA § 316.10(b)(2)(ix).

10. Two or more convictions for gambling or earns income from illegal gambling activities. See INA§ 316.10(b)(2)(x) and (xi).

11. Is or was a habitual drunkard. See INA § 316.10(b)(2)(xii).

12. Willful failure to support dependents or an extramarital affair that destroyed the marital union. See INA § 316.10(b)(3)(i) and (ii).

13. Any crimes (not listed above) which negatively reflect on the applicant’s “moral character” or which resulted in a conviction or imprisonment for the unlawful acts.

Note: An applicant on parole, on probation or a suspended sentence will not be approved for citizenship until they have completed the program. See INA § 316.10(c)(1). Expungement for certain drug offenses have no effect on a conviction finding for the offense. See INA § 212(a)(2)(A)(i)(III); § 241(a)(2)(B); 316.10(b)(2)(ii); and § 316.10(b)(2)(iv). An applicant will not be permitted to show GMC if two or more crimes of moral turpitude (discussed below) were committed during the statutory period, even when one or more has been expunged. See INA § 316.10(b)(3)(ii).

TIP:  You should always be truthful on the application but always consult your attorney first before disclosing any information on an immigration application. Some lack of GMC factors may also result in deportation or removal proceedings. 

So the Next Question is: What are crimes of moral turpitude?

Determining a set list of crimes of moral turpitude is not simple and therefore the criminal history of an applicant should be evaluated carefully by an immigration attorney to determine whether the crime fits certain characteristics of a crime of moral turpitude. It is especially important to research the client’s criminal history because a crime of moral turpitude may render an applicant inadmissible and therefore deportable. Looking at whether an act or an offense is a crime of moral turpitude involves a little more research into case law, since the determination that a crime is one of moral turpitude is determined on a case by case basis, based on the characteristics.

Case law has provided the general characteristics of crimes of moral turpitude. In order for the offense to be a crime of moral turpitude, “there must be an element of evil intent” See D.L. Hawley., Immigration Briefings: Good Moral Character for Naturalization, (citing Goldeshtein v. INS, 8 F.3d 645 (9^th Cir. 1993)). However, evil intent is not required to find a crime of moral turpitude. Acts that are determined to be “contrary to justice, honesty, or morality” and which involve “acts of baseness, vileness, or depravity in the private and social duties which one person owes another, or to society in general, contrary to the accepted and customary rule of right and duty between people.” See D.L. Hawley. Immigration Briefings: Good Moral Character for Naturalization, (citing Islam v. Harrington, 2001 WL 2335852 (N.D. Tx. 2001)).

Some offenses found to be crimes of moral turpitude include:

1.    Embezzlement

2.    Spousal abuse

3.    Sexual assault

4.    Tax Fraud

5.    False information on a tax return

6.    Making a false statement on a driver’s license

7.    False statement under oath for a Green card

The above sample of offenses that have been found to be crimes of moral turpitude are examples of the broad definition of crime of moral turpitude. There are some exceptions, even if you have committed a crime of moral turpitude. 

Moral Turpitude Exceptions:

1.    If the offense was committed when under the age of 18; and was committed or the person has been released from the penal institution more than 5 years before the date of a visa application or date of admission application.

2.    The offense is punishable for 1 year or less and if the alien was convicted, the alien did not spend more than 6 months imprisoned.

When evaluating the criminal history, it is important to determine whether the crime(s) fall under an Aggravated Felony or crime(s) of moral turpitude within the statutory period. Either one could mean deportation, unless one of the exceptions apply. 

Disclaimer: The information on this blog is for informational purposes only and is not legal advice nor does it establish an attorney-client relationship.

The Highest Court Appeared Divided in the High Stakes Case, United States v. Texas

At this time the United States Supreme Court is considering a major immigration case, United States v. Texas. At the oral argument held on April 18, 2016, the Court was divided on whether President Obama’s immigration plan is legal and whether the States have standing to sue the federal government in this case. However, if the Supreme Court decides that President Obama should not be permitted to implement this immigration plan, millions will remain undocumented, subject to a lower quality of life and an inability to legally work. Many more will be separated from their families through deportation proceedings, and in the future, the States could possibly prevent and block federal laws and policies, as it is attempting to do in this case. I think the stakes are pretty high but unfortunately the Court seemed divided at the oral argument. If the decision ends in a four against and a four in favor of President Obama's immigration measures, the injunction on the DACA and DAPA executive action will be upheld, which would further delay a resolution to the pressing issue of undocumented immigrants in the United States.

This case stems from President Obama’s 2014 executive action, which authorized the expansion of Deferred Action for Childhood Arrivals (DACA) and introduced the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). Shortly after the issuance of the expanded DACA and DAPA, twenty-six States filed suit in the Southern District of Texas to prevent the implementation of the expanded DACA and DAPA. The district court found in favor of the States and issued a preliminary injunction, preventing the federal government from accepting applications under the expanded DACA and DAPA. The government appealed to the Fifth Circuit. However, the majority in the Fifth Circuit upheld the district court’s decision. The federal government then filed a petition of certiorari with the Supreme Court, which is now considering the case. 

Brief History of DACA and DAPA

With Congress refusing to agree on action for immigration reform and with the fate of millions of undocumented individuals hanging in the balance, President Obama enabled families to stay united and provided many undocumented individuals the opportunity to seek legal presence in the United States through the expanded DACA and DAPA. These measures were intended to prevent certain undocumented immigrants from being deported and instead provided them an avenue to gain work authorization and legal status for a few years.

DACA (2012): This program currently enables children brought to the United States under the age of 16 to gain lawful presence for 2 years and the ability to apply for work authorization if: they were under the age of 31 and had no lawful status as of June 15, 2012; continuously resided in the United States since June 15, 2007, up to the present time; met certain educational or military requirements; had no convictions for certain crimes; and posed no national security threat. This program is still available to those who are eligible. However, President Obama tried to expand DACA in 2014 to make it available to many more. The expanded DACA is now on hold pending the outcome of this case.

The Expanded DACA (2014): This expanded program extinguished the “under 31” age requirement of the original DACA and extended the lawful presence from 2 years to 3 years. There is a current injunction on this program due to this case.

DAPA (2014): This program was meant to provide relief from deportation to undocumented parents of U.S. Citizens or LPR children if: the parents lived in the United States continuously since Jan. 1, 2010, up to the present time; were physically present and undocumented in the United States on Nov. 20, 2014, and at the time of making the DAPA request; had, on Nov. 20, 2014, a son or daughter, of any age or marital status, who is a U.S. citizen (USC) or lawful permanent resident (LPR); and had no conviction for certain crimes or pose no threat to national security.This is also on hold pending the outcome of this case. The USCIS provides more information about DACA and DAPA.

According to the American Immigration Council, DACA has helped 700,000 individuals become documented in the United States and DAPA could help an additional 3.7 million undocumented immigrants stay united with their U.S. citizen or LPR children, gain proper work authorization and contribute to the U.S. economy. Furthermore, with no relief, and when some parents have been deported due to undocumented status, the children suffer irreparable harm. The American Immigration Council cited another horrific statistic that reveals the awful reality when families of illegal immigrants are separated due to deportation; a study by Race Forward showed more than 5,100 U.S. citizen children were placed in foster homes due to the deportation of parent(s) in 2011. Despite these horrific effects of deportation and President Obama’s effort to curb the trauma to families, the States  have argued that such policy was illegal and would cause further harm to them.

A Summary of the States’ Arguments

The American Immigration Council has succinctly broken down the arguments of both sides. The twenty-six States have argued that President Obama violated the “Take Care” clause in the Constitution to faithfully execute the laws by making unlawful conduct lawful. The States also argued that President Obama’s executive action violated the Administrative Procedure Act (APA) because it was “arbitrary and capricious,” was not in compliance with immigration law and did not adhere to the technical procedural requirements which included notice-and-comments rule making  The States have explained that if the federal government implements the expanded DACA and DAPA, Texas will lose money for each subsidized driver’s license due to the increased numbers of immigrants applying for the license. The district court’s issuance of the preliminary injunction, and the Fifth Circuit’s affirmance of the preliminary injunction were based the APA argument.

A Summary of the Federal Government’s Arguments

The federal government argued that the states did not have standing because the driver’s license subsidized cost incurred by Texas was an “indirect” and “incidental” effect of DACA and DAPA, which was “self-generated.” The federal government has also pointed out that it has traditionally had the discretion to defer deportation; and they are using such discretion to create the expanded DACA and DAPA.

At the Oral Argument: The Supreme Court Appeared Split

The oral argument at the Supreme Court on April 19, 2016, was the first hint of the divided position of the Supreme Court justices. Chief Justice Roberts and Justice Kennedy seemed skeptical regarding President Obama’s authority to implement the DACA and DAPA. According to the New York Times Article, Chief Justice Roberts asked, “Could the president grant deferred removal to every unlawfully present alien in the United States right now?” While the New York Times quoted Justice Kennedy’s statement regarding his opinion, “What we’re doing is defining the limits of discretion. . . And it seems to me that that [Obama’s DACA and DAPA] is a legislative, not an executive act.” Justice Kennedy made this statement even though the federal government has traditionally had the discretion to defer deportation. On the other hand, Justice Sotomayor acknowledged that “nearly 11 million unauthorized aliens are here in the shadows.” And “[t]hey’re here whether we want them or not.” In the transcript from the oral argument, Justice Breyer also pondered on the possibility that the courts could be inundated with lawsuits for "every case of political disagreement where States disagree" with federal policy. 

Worst Case Scenario If the Court Sides With the States

If the States prevail in their argument that President Obama’s executive action harms the states, then this would question the very essence of existing constitutional law and the deference given to the executive branch to enforce federal policies. This could lead States to file suits challenging all sorts of federal laws based on a disagreement with the federal policy underlying the federal law. Such an effect could hinder the federal government’s ability to implement policy efficiently, without delay and hindrance.

Furthermore, the most important and devastating cost of this nightmarish outcome would be the undocumented individuals at the center of this. They would be left in limbo. Undocumented parents of U.S. citizens would still live in fear of being deported, of being forced to leave their children behind. And the many more who could benefit from the expanded DACA would also face deportation; forced to go to a country that they have not known since childhood.

So let’s hold our breaths, hope and pray that the Supreme Court makes the right decision for the sake of so many who currently suffer "in the shadows".


Disclaimer: The information on this blog is for informational purposes only and is not legal advice nor does it establish an attorney-client relationship.