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Naturalization and good moral character. How cheating and DUI may cause you a citizenship denial.

good moral character

Today we are going to talk about "Sex, Drugs, and Citizenship" or a "Good moral character" as a requirement for naturalization.

The Immigration and Nationality Act (INA) includes not just time requirements as a permanent resident before applying for naturalization but also a general requirement that the applicant establish "good moral character," or "GMC" as we immigration lawyers like to call it.

In a sense, GMC is self-explanatory. The applicant has to "behave" during the statutory waiting period, be it five years or three years, as described in the prior post. However in some cases, the agency will look back farther than the statutory waiting. If it believes that earlier conduct is relevant to lack of good moral character.

Certain behaviors are clearly defined as conduct constituting a lack of good moral character, which will disqualify an applicant for naturalization if committed within the "statutory period."

A few salient examples:

Marital Infidelity. Under the regulations, unless there are "extenuating circumstances," an applicant will be found to lack good moral character if he or she "had an extramarital affair which tended to destroy an existing marriage." Need I say that this is territory no applicant wants to get into, lest his or her sex life becomes the legitimate subject of questioning by immigration officers!

I will also add that it isn't necessary for there to be an actual divorce for this provision to apply. A number of years ago I had a case in which the applicant came to me after an interview to deal with a request for evidence concerning the birth of a child out of wedlock, while he was pursuing a marriage-based three year naturalization application. We submitted evidence to show that his wife had forgiven him the infidelity (which occurred during a trip she made back to the "old country," when then "old girlfriend" called him to say hello, and one thing led to another, etc. etc.). The application was denied on the theory, I believe, that the applicant had not (at least for one night) "continuously resided in marital union" with his USC spouse.

Prostitution. This is another clear bar to a GMC finding if it occurs during the statutory period. I once had a client who had been arrested twice for this offense, and had the charges dismissed on both occasions. However, it was her view that since she had not been convicted of the offense, it was okay for her to answer the question "have you ever engaged in prostitution?" on the form by checking the "no" box. I thought she was sunk because when she retained me she had an RFE that called for all arrest records relating to these charges. There was, shall I say, "no question" that she was a professional from the police report narratives. A colleague whom I consulted with on this case told me that the only way he thought she would pass would be if the immigration officer was one of her customers. I will not say more.

False Testimony to Obtain an Immigration Benefit. It should go without saying that if you lie on either the naturalization application form (N-400) or during your examination you run the risk of being denied naturalization on good moral character grounds. In such a case the applicant must "start over," and wait an additional five years from the date of denial to apply again.

DWIs. A single "driving while intoxicated" conviction will normally not bar the naturalization application on good moral character grounds, and I've successfully handled a number of such cases. However, if one has a history of DWIs extending back years beyond the statutory period, and the last DWI occurred within the statutory period, it is quite possible that naturalization could be denied on GMC grounds, even if the offenses are "simple" motor vehicle violations and not "crimes." These applications are always fact intensive and require much preparation. Other questionable conduct in the applicant's past could result in a denial.

Drug offenses. Simple possession of 30g or less of marijuana will not bar naturalization, but possession of more than that, or of other kinds of illegal drugs, will. Moreover, the applicant will almost certainly have greater problems than denial of naturalization in such a case. He or she may well be put into removal proceedings for having applied to become a citizen, because of his/her drug offense record.

Other Crimes. Offenses of the "parking ticket" variety and various "disorderly persons" offenses under municipal or state law will not ordinarily result in a negative GMC finding, but serious crimes that qualify under the broad definition of a "crime involving moral turpitude" (CIMT) can result not only in denial of naturalization, but also being placed in removal proceedings. Thus, whenever a permanent resident has any law enforcement record it is always a good idea to consult with an experienced immigration attorney before making the decision to than to apply for naturalization.

Other grounds. Nonsupport of dependent children, failure to file income taxes, and in some cases failure of males under 26 to register for "Selective Service" (the military draft system, which still exists but is not active at this time) can all be grounds for a GMC denial of naturalization. Thus, my general advice is always consult with counsel before making the decision to file.

Brian D. O'Neill Attorney at Law, LLC

Immigration, Employment and Business Law

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