Immigrants to the United States seeking to become naturalized citizens must meet a number of criteria, including a requirement of “good moral character.” The U.S. Citizenship and Immigration Services (USCIS) has recently updated its policy guidance regarding unlawful acts during the statutory period leading up to an application for naturalization, which is usually five years for lawful permanent residents and three years for lawful permanent residents married to a citizen of the United States.
Understandably, violent crimes and other serious felonies, like murder and drug trafficking, reflect so poorly on an applicant’s moral character that they would serve as a bar to naturalization. However, criminal acts that are less serious in nature can also be considered. On December 13, 2019, USCIS issued a policy alert, expanding guidance on unlawful acts that may serve as a “conditional bar” to naturalization by having a negative impact on a finding of good moral character.
Meeting the good moral character requirement for citizenship is different from the burden of proof in a criminal trial. In a criminal trial, the person on trial must be found guilty beyond a reasonable doubt, and the burden is on the prosecutor to prove guilt. When it comes to good moral character, the burden is on the applicant for naturalization to show that they are of good moral character. Unlawful acts can defeat an applicant’s attempts to show good moral character.
The December 13 policy alert states that:
“An applicant who has committed, was convicted of, or was imprisoned for an unlawful act during the applicable statutory period may be found to lack GMC if the act adversely reflects on his or her moral character, unless the applicant can demonstrate extenuating circumstances.” The alert goes on to say that an act is unlawful if it violates a criminal or civil law of the jurisdiction in which it was committed.
Significantly, an applicant for citizenship need not be convicted of the unlawful act, or even charged with it, for the act to serve as evidence of a lack of good moral character and a conditional bar to naturalization.
The policy guidance also expands the existing information regarding “unlawful acts,” and includes more examples of unlawful acts that can defeat an applicant’s claim of good moral character. Some of these unlawful acts include:
There is no comprehensive list of unlawful acts that serve as a bar to good moral character. Furthermore, the policy guidance makes clear that USCIS officers make the determination whether an unlawful act is a conditional bar on a case-by-case basis.
If this sounds to you like the policy guidance in place gives an awful lot of discretion to individual USCIS officers, you’re right. Officers make the case-by-case analysis regarding both whether an act reflects poorly on an applicant’s good moral character, and whether the applicant has demonstrated “extenuating circumstances” for the unlawful act.
Keep in mind, too, that while an even accusation of an unlawful act by itself is enough for USCIS to make a finding that an applicant lacks good moral character, an unlawful act is not needed for such a finding. There are other grounds on which a person can be found to lack good moral character, such as adultery, attempting to engage in prostitution, or failing to pay child support.
The fact that there is so much “wiggle room” regarding a finding of good moral character means that applicants for naturalization need to have an experienced immigration attorney to fight for their position. If you are applying to become a U.S. citizen and are concerned about whether you might be found to lack good moral character, you should consult with an attorney before beginning the application process. No matter what acts you may have in your past, don’t hide them from your attorney. She can’t help you solve a problem if she doesn’t know it exists. We encourage you to contact our law office to schedule a consultation to discuss your situation.