Friday, April 20, 2018

Nonimmigrant Waivers Pursuant to INA § 212(d)(3), Including Form I-192


For a variety of different reasons, many foreign nationals find themselves inadmissible to the U.S.  Inadmissible individuals cannot even enter the U.S. for a short shopping trip or even in-transit to another destination.  Fortunately, however, most inadmissible foreign nationals can overcome their inadmissibility in order to enter the U.S. on a temporary basis by applying for a nonimmigrant waiver pursuant to section 212(d)(3) of the Immigration and Nationality Act (“INA”). 
A nonimmigrant waiver differs from an immigrant waiver in the same way that a nonimmigrant visa differs from an immigrant visa.  If a foreign national is seeking to enter the U.S. to live here on a permanent basis – as a permanent resident with a “green card” – then s/he requires an immigrant visa.  If s/he is inadmissible, then s/he will require an immigrant waiver in addition to his/her immigrant visa.  There is not an immigrant waiver available for all grounds of inadmissibility. 
If a foreign national is seeking to enter the U.S. on a temporary basis, then s/he requires a nonimmigrant visa [unless s/he is visa exempt like most Canadians].  If the potential nonimmigrant is inadmissible, then s/he will require a nonimmigrant waiver.  Even visa-exempt Canadians seeking to enter solely as visitors for a few hours will require a nonimmigrant waiver if any ground of inadmissibility applies. 
Section 212(d)(3) of the INA provides for a nonimmigrant waiver of virtually all grounds of inadmissibility to the United States (except security and related grounds of inadmissibility).  Although all nonimmigrant waivers under INA § 212(d)(3) are adjudicated by the Admissibility Review Office (“ARO”), which is a sub-office of U.S. Customs and Border Protection (“CBP”), there are two (2) different applications processes for: (1) waiver applications filed at a U.S. Consulate abroad; and (2) waiver applications filed at a U.S. Port of Entry.  As discussed in more detail below, only waivers applied for at a Port of Entry require the submission of Form I-192 together with the appropriate filing fee. 

Form I-192, Application for Advance Permission to Enter as a Nonimmigrant [Pursuant to INA § 212(d)(3)(A)(ii)]
Visa-exempt foreign nationals, like Canadian citizens, that are deemed to be inadmissible to the U.S. must apply for a nonimmigrant waiver by submitting a completed Form I-192, Application for Advance Permission to Enter as a Nonimmigrant, to CBP officials at a U.S. Port of Entry together with the appropriate filing fee and other required supporting documents. 

Filing Procedures
The specific filing procedures at the land border ports of entry along the northern border will vary depending upon the port.  For instance, in the Buffalo area, applications must be filed in-person at any land border port of entry.  The fee is accepted and receipted, fingerprints are taken, and the application is reviewed for completeness.  This process is the most common along the northern border, with the exception of ports of entry from St. Ste Marie, Michigan east to Detroit, Michigan.  Rather than in-person filing, these ports of entry require the mailing of all nonimmigrant waiver applications together with fee.  The I-192 waiver office then sends fingerprinting instructions to the applicant, requiring him/her to appear in-person at a port of entry to complete the fingerprinting process.  Thus, no I-192 waiver application can be completed totally by mail.  
Form I-192 waiver applicants who are physically present in the United States should keep in mind that a proper waiver application requires departure from the U.S.  You will not be permitted to depart the U.S., file the waiver application, and then return to the U.S. unless you are already in possession of a nonimmigrant waiver and only departed the U.S. in order to apply for a renewal. 
Form I-192 waiver applicants who intend to submit the waiver application at a land border port of entry should be aware that, unless the applicant is in possession of a valid waiver, s/he will be subject to a formal refusal of entry.  This formal refusal does not create additional grounds of inadmissibility or make a waiver more difficult to obtain.  Rather, many individual waiver applicants are caught off-guard upon being informed that s/he is the subject of “a formal refusal of admission to the United States,” as it sounds worse than it really is.  Many also find it embarrassing. 
The filing procedure is the same at all pre-clearance ports within Canadian airports, where applicants file Form I-192 together with supporting documents in person.  Fees are receipted and fingerprints are taken at the time of filing. 
Both pre-clearance ports and land border ports of entry will often have limited hours on specific days during which they will accept waiver applications.  It is therefore recommended that applicants contact their nearest port of entry in advance before planning on a date to make an in-person application.  You can also visit the CBP website [http://www.cbp.gov/xp/cgov/travel/id_visa/indamiss_can_info.xml] for information regarding filing locations and times.
If you live in the Toronto area, the I-192 Office located within Toronto Pearson International Airport is open on Saturdays from 8:00 a.m. to 7:00 p.m.  The I-192 Waiver Office is located at Terminal 1, Departures Level.  CBP officials at Pearson advise applicants to arrive early unless they do not mind waiting several hours. 
If you live in the Buffalo/Niagara region, I-192 waivers are accepted at the Peace Bridge Port of Entry Monday – Thursday from 5:00 p.m. until 9:00 p.m.  They are also accepted at the Rainbow Bridge Port of Entry on Monday - Thursday from 9:00 a.m. to 3:00 p.m., and on Sundays between 5:00 p.m. and 9:00 p.m. during the months of October – May only.  Forms I-192 may also be filed at the Lewiston-Queenston Port of Entry on Monday – Thursday from 2:00 p.m. to 9:00 p.m. 
In addition to completing Form I-192, Application for Advance Permission to Enter as a Nonimmigrant, Canadian citizens are also required to submit specific supporting documents together with Form I-192.  These supporting documents are verified by CBP officers at the filing location.  If all required documents are not present, then the CBP officers will most likely refuse to accept your application, or accept it but refuse to forward it to the ARO until all required documents are submitted.  CBP created a Form I-192 application checkist years ago.  Since requirements continue to change, it is recommended that applicants check with their attorneys to determine if the list has changed or if additional documents are required before filing. 
If the Form I-192 has been completed properly and all supporting documents are present, then the CBP officials at the filing location will process the application by forwarding the package to the ARO for adjudication.  

The Admissibility Review Office ("ARO")
The ARO, which is located in the Washington, DC area, is part of CBP.  Since 2005, it has been the sole agency charged with adjudicating I-192 waiver applications [as well as all waiver applications pursuant to INA § 212(d)(3), including those submitted at Consulates abroad – see below].  The DHS created the ARO in an effort to achieve consistency in the adjudication of nonimmigrant waivers pursuant to INA § 212(d)(3).  See CBP Memorandum, "Admissibility Review Office," CBP Assistant Commissioner, Office of Field Operations, Jayson P. Ahern (March 22, 2005).   
The result is one office within the DHS that can specialize and focus solely on the application of INA § 212(d)(3).  While the ARO has the discretion to grant or deny nonimmigrant waiver applications, it must adjudicate these applications pursuant to the legal guidelines and framework set forth by the Board of Immigration Appeals (“BIA”) in its landmark case: Matter of Hranka.  In that case, the BIA set forth three (3) factors that must be weighed together in deciding whether or not to grant a waiver application under INA § 212(d)(3): 
  1. the risk of harm to society if the applicant is admitted; 
  2. the seriousness of the applicant’s prior immigration law, or criminal law, violations, if any; and 
  3. the nature of the applicant’s reasons for wishing to enter the United States. 
Matter of Hranka, 16 I. & N. Dec. 491, 492 (BIA 1978). 
In Hranka, the BIA held that the risk of harm posed by a young Canadian woman who had one prior incident of prostitution two (2) years earlier was “very small.”  The BIA noted that the applicant had no other criminal or immigration law violations and found that the applicant had “substantial reason for desiring a waiver” in that she had many close relatives living in the U.S. (uncles and cousins).  The BIA also held that there is no requirement that the applicant’s reasons for wishing to enter the U.S. be “compelling.”  Based upon these factors, the BIA concluded that a nonimmigrant waiver should be granted.  Id.  See Approvals to read about successful nonimmigrant waiver applications. 
The decision of the BIA in Matter of Hranka has been controlling the adjudication of nonimmigrant waivers pursuant to INA § 212(d)(3) for over 30 years. 
In order to present the strongest waiver application on behalf of our clients, our office puts together a comprehensive application package, including a legal brief that applies the specific law of the Hranka case to the facts present in each applicant’s case.  Together with the brief, we prepare and package the application forms; the required supporting documents; and additional evidence that we deem necessary to submit.  Once the package is prepared, we send it to our client via courier with detailed instructions on submitting the package in person at the nearest (or most convenient) CBP office.  Once the application package has been filed, we begin to monitor the application at the ARO.  If there is no decision received within 90 days of submission, we begin to contact the ARO on a regular basis until a decision is issued. 

Processing Times
Form I-192 waiver application processing times will vary from case to case.  While the ARO goal is to complete the adjudication of each application within 4-6 months of the filing date, there are many cases in which the processing period is much longer.  In many cases, the delay is not at the ARO, but with another federal agency responding to the necessary background and security checks.  The good news is that the first waiver application usually involves the longest processing time.  Subsequent Form I-192 waiver applications are usually processed much quicker – generally within 3-4 months. 
By regulation, nonimmigrant waivers pursuant to INA § 212(d)(3) may only be issued for a maximum period of 5 years at a time.  See 8 C.F.R. § 212.4(c)(3)(iii).   Some Canadians find this confusing, as the U.S. used to offer “lifetime waivers” – also known as Canadian Border Crossing Cards (“CBCC”).  The U.S. did away with CBCCs and no longer issues lifetime waivers, however, those that were issued prior to the change in U.S. law remain valid so long as no new grounds of inadmissibility have arisen since the issuance of the CBCC.  
First time waiver applicants are not likely to receive a validity period of 5 years.  Rather, the first nonimmigrant waiver issued will usually be for a period of one (1) year.  Some first time waivers are only issued for six (6) months.  Others are issued for 2-3 year periods.  On average though, most first time applicants receive a nonimmigrant waiver for a period of one (1) year.  
Upon completing the adjudication process, the ARO will send its decision in writing directly to the applicant, with a copy to the attorney of record.  If the waiver application is approved, the ARO issues the waiver on a Form I-94.  The Form I-94 will state the validity period.  It will also state the permissible reasons that the waiver recipient may be entering the U.S. for.  In most cases, it will say “business and pleasure” but in some cases the activities will be restricted to “business only” or “pleasure only.”  
If the waiver application is denied, the ARO will issue a decision explaining the reasons for the denial.  The notice of denial will also advise the applicant of the right to appeal the AAO decision to the BIA within 15 days of the mailing of the denial decision.  See 8 C.F.R. § 212.4(b).  The denied waiver applicant also has the option to renew the waiver request before an Immigration Judge (“IJ”) if s/he is referred to the Executive Office for Immigration Review for removal proceedings and, if the IJ denies the application, that decision may also be appealed to the BIA.  See 8 C.F.R. § 212.4(b).

INA § 212(d)(3)(A)(i) Waivers – Applying for a Nonimmigrant Waiver at a U.S. Consulate
All foreign nationals who require a visa to enter the U.S. must apply for such visa at a U.S. Consulate abroad.  If the nonimmigrant visa applicant also requires a nonimmigrant waiver, the waiver application is also submitted at the U.S. Consulate with jurisdiction over the nonimmigrant visa application. 
Consular officers are employees of the U.S. Department of State (“DOS”), not the DHS.  While Consular officers have jurisdiction to grant or deny visa applications, as well as the discretion to recommend or reject nonimmigrant waiver applications, the DOS does not have jurisdiction to adjudicate nonimmigrant waiver applications.  As previously noted, all nonimmigrant waiver applications are adjudicated by the ARO.
The Consular officer still plays an important role in the nonimmigrant waiver process.  To begin with, the Consular officer must first determine whether the nonimmigrant visa applicant qualifies for the particular type of nonimmigrant visa that s/he is applying for.  If the nonimmigrant visa applicant does not qualify for the visa, then the nonimmigrant waiver stage is not even reached – the nonimmigrant waiver application is not even accepted and the applicant is sent home. 
If the applicant qualifies for a nonimmigrant visa but is inadmissible to the U.S. for other reasons (such as a criminal conviction or health reasons), s/he will be instructed by the Consular officer that s/he cannot be issued a visa unless s/he first obtains a nonimmigrant waiver.  In some cases, the applicant is instructed to return to the Consulate in person with a waiver application package, while others are instructed to mail the application back to the Consulate.  Upon identifying an applicable ground of inadmissibility, our office will prepare a nonimmigrant waiver application package in advance of the nonimmigrant visa appointment so that our clients can submit the waiver application package upon the Consular finding of inadmissibility, which will cut down on the length of time that the applicant must wait for a decision. 
One of the main differences in applying for a nonimmigrant waiver at a U.S. Consulate as opposed to at a port of entry is that there is no required form or filing fee when the nonimmigrant waiver application is submitted at the U.S. Consulate abroad.  See 8 C.F.R. § 212.4(a)(1).  While certain information is required to properly adjudicate a nonimmigrant waiver application, there are no required supporting documents, although there are certainly documents that it is advisable to submit.
Upon receipt of a nonimmigrant waiver application package, Consular officers review all application materials and then determine whether or not to recommend the waiver application to the ARO for approval.  See 22 C.F.R. § 40.301. 
The DOS Foreign Affairs Manual (“FAM”) states: 
The Congress, in enacting INA § 212(d)(3)(A), conferred upon the Secretary of State and consular officers the important discretionary function of recommending waivers of nonimmigrant visa ineligibilities to the Department of Homeland Security for approval. 
9 FAM 40.301 N1.  Consular officers are further instructed: 
You should not hesitate to exercise this authority when the alien is entitled to seek waiver relief and is otherwise qualified for a visa, and when the granting of a waiver is not contrary to U.S. interests. 
9 FAM 40.301 N1.  Before a Consular officer can recommend a nonimmigrant waiver application for approval, certain basic conditions must first be met.  Specifically: 
  1. The applicant is not inadmissible under INA § 214(b) [an intending immigrant]; 
  2. The applicant is not inadmissible under INA § 212(a)(3)(A)(i)(I), INA § 212(a)(3)(A)(ii), INA § 212(a)(3)(A)(iii), INA § 212(a)(3)(C), or INA § 212(a)(3)(E) [security-related grounds of inadmissibility; 
  3. The applicant is not seeking a waiver of nonimmigrants documentary requirements of INA § 212(a)(7)(B), which may only be waived under the provisions of INA § 212(d)(4); and 
  4. The applicant is, otherwise, qualified for the nonimmigrant visa he or she is seeking.  
9 FAM 40.301 N2.  If these requirements are met, the Consular officer must then determine whether or not to recommend the nonimmigrant waiver application to the ARO for approval based upon the specific facts of the case. 
Consular officers are instructed that:
Eligibility for a waiver is not conditioned on having some qualifying family relationship, or the passage of some specified amount of time since the commission of the offense, or any other special statutory threshold requirement.  The law does not require that such action be limited to humanitarian or other exceptional cases.  While the exercise of discretion and good judgment are essential, you may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc. 
9 FAM 40.301 N3a. 
Consular officers are also advised to consider three (3) specific factors when deciding whether to recommend a waiver.  These factors, which can be found at 9 FAM 40.301 N3b, mirror the three (3) factors set forth by the BIA in Matter of Hranka.  
If the Consular officer is satisfied with the waiver application and has been persuaded to recommend it for approval, s/he will forward the waiver application together with a favorable recommendation to the ARO in the U.S.  Consulates communicate directly with the ARO electronically, which significantly reduces processing times.  9 FAM 40.301 PN1.  Nonimmigrant waiver applicants who apply at a U.S. Consulate usually only wait approximately 3-4 weeks for a response from the ARO. 
If the Consular officer does not want to recommend the waiver application for approval and the applicant wishes to pursue the application, the applicant can request that the Consular officer submit the case for an advisory opinion.  9 FAM 40.301 N6.1(b).  The denied applicant also has the option to accept the officer’s decision not to recommend the waiver application and to re-apply at a later date.  There is no limit on the number of nonimmigrant waiver applications that can be made at the Consulate (or the ARO).  
Whatever its decision, the ARO will notify the Consulate electronically.  The Consulate will then notify the applicant of the decision.  If approved, the nonimmigrant visa will be issued.  There is no physical form issued as documentation that the nonimmigrant waiver has been issued.  Rather, the nonimmigrant visa should contain a notation that a nonimmigrant waiver has been issued pursuant to INA § 212(d)(3). 
As mentioned above, applicants who are refused a nonimmigrant waiver may re-apply at a later date.  Before re-applying, however, it will be important to find out why the initial application was denied.  This will sometimes be explained by the Consulate but other times it will not be offered, which is when the applicant or his/her attorney will need to make an inquiry with the Consulate.  You can also submit a request pursuant to the Freedom of Information Act (“FOIA”) directly to CBP and specifically request ARO records.  Only after learning the specific reasons for the initial denial will you, or your lawyer, be in a better position to prepare a waiver application that can overcome the basis of the prior refusal. 
In support of a nonimmigrant waiver application submitted at a U.S. Consulate, our office puts together a comprehensive waiver application package that addresses both the Hranka factors (which the ARO must follow), as well as the factors that the Consular officers are required to consider under the FAM.  These factors are addressed in a legal brief, which is accompanied by a formal request for a favorable recommendation to the ARO. 
Our services also include the preparation of the accompanying nonimmigrant visa application and, perhaps most importantly, an interview preparation session with counsel so that the applicant understands the process, knows what t expect, and is prepared to make his/her best case for recommendation and approval to the Consular officer. 

Thursday, April 19, 2018

Crimes Involving Moral Turpitude January 2013 § N.7 Crimes Involving Moral Turpitude (For more information, see Defending Immigrants in the Ninth Circuit, Chapter 4, including Appendix 4-A, Annotations and Chart of Crimes Involving Moral Turpitude under California Law) Overview Box A. Is the Offense a Crime Involving Moral Turpitude (“CIMT”)? B. Does the Conviction make the Defendant Deportable under the CIMT Ground? C. Does the Conviction make the Defendant Inadmissible under the CIMT Ground? Appendix 7-I Legal Summaries to Give to the Defendant Appendix 7-II Cheat Sheet: Rules for When a CIMT is an Inadmissible or Deportable Offense Overview: Crimes Involving Moral Turpitude. Because many offenses come within the immigration category of crimes involving moral turpitude (“CIMT”), criminal defense counsel must always keep this category in mind. There are two steps to analyzing CIMTs. First, determine whether an offense is or might be a CIMT. Generally this requires intent to cause great bodily harm, defraud, or permanently deprive an owner of property, or in some cases to act with lewd intent or recklessness. See Part A below. Second, if the offense is or may be a CIMT, see if according to the immigration statute formulae for CIMTs – based on number of convictions, when committed, sentence - the conviction would actually make this defendant inadmissible and/or deportable under the CIMT grounds. In some cases a single CIMT conviction will not make a noncitizen inadmissible and/or deportable. See Parts B and C below for these rules. An administrative decision, Matter of Silva-Trevino, has made it impossible to tell whether certain offenses will be held CIMT’s. Often the best course is to conservatively assume that a borderline offense is a CIMT, do the analysis to see if it will make the noncitizen defendant deportable and/or inadmissible, and warn the defendant accordingly. A waiver or some other defense strategy might be available. Hopefully the Ninth Circuit will overturn Silva-Trevino. As always, remember that a single conviction might come within multiple immigration categories. For example, a CIMT offense might or might not also be an aggravated felony. Look up the section in the California Quick Reference Chart to check all categories. 111 Immigrant Legal Resource Center, www.ilrc.org § N.7 Crimes Involving Moral Turpitude January 2013 A. Is the Offense a Crime Involving Moral Turpitude? (including Matter of Silva-Trevino) A crime involving moral turpitude (“CIMT”) has been vaguely defined as a depraved or immoral act, or a violation of the basic duties owed to fellow man, or recently as a “reprehensible act” with a mens rea of at least recklessness. Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008). Traditionally a CIMT involves intent to commit fraud, commit theft with intent to permanently deprive the owner, or inflict great bodily harm, as well as some reckless or malicious offenses and some offenses with lewd intent. For criminal defenders, the first step to see if an offense is a CIMT is to consult the California Quick Reference Chart. However, because this area of the law is in flux, you also must be aware of the points in this Note. Note also that whether a particular offense constitutes a CIMT for immigration purposes is determined by federal immigration caselaw, not state rulings for purposes of witness impeachment or license limitations. How Matter of Silva-Trevino makes it harder to guarantee a conviction will not be a CIMT. To make a long story short,1 currently it can be hard to determine if a conviction will be held to be a CIMT because of the administrative case, Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008). Under Silva-Trevino, in some cases an immigration judge will be able to go beyond the record of conviction and hold a hearing on the facts about the defendant’s conduct, to see if the defendant committed a crime involving moral turpitude. The judge can take testimony from the defendant, review police reports, etc., and may even consider facts not required to prove an element of the offense. Therefore, while counsel should strive to protect the defendant from a CIMT conviction by choosing the right plea or controlling the record of conviction, as long as Silva-Trevino remains in effect, the defendant might end up with a CIMT conviction. How to protect a client despite Silva-Trevino. There are two defense strategies that will protect a client from a CIMT conviction despite Silva-Trevino. If you succeed in negotiating a disposition according to these strategies, give the client a copy of the legal summary that appears at Appendix I following this Note. 1. With a divisible statute, plead specifically to conduct that is not a CIMT A “divisible statute” reaches conduct that is and is not a CIMT. It is clear that if the record of conviction specifically identifies elements that do not involve CIMT, the immigration judge may not go beyond that and may not conduct a fact-based inquiry under Silva-Trevino. 2 Thus for CIMT purposes, instead of creating a vague record of conviction, where possible one should plead to a specific offense that does not involve moral turpitude. Example: Calif. Veh. Code § 10851 is divisible as a CIMT, because it covers both auto theft with intent to permanently deprive the owner of property (a CIMT), and joyriding 1 For further discussion of Silva-Trevino see Brady et al, Defending Immigrants in the Ninth Circuit (2011, www.ilrc.org) or see Tooby, Kesselbrenner, “Living with Silva-Trevino” at www.nortontooby.com. 2 Matter of Alfaro, 25 I&N Dec. 417 (BIA 2011); Matter of Silva-Trevino, 24 I&N Dec. 687, 699 (AG 2008). 112 Immigrant Legal Resource Center, www.ilrc.org § N.7 Crimes Involving Moral Turpitude January 2013 with temporary intent (not a CIMT). If the defendant specifically pleads to taking with temporary intent, then the conviction is not a CIMT. But if the record is vague between temporary and permanent taking, the immigration judge may conduct to determine the intent. She might take testimony from the immigrant, examine the probation report, etc. Another commonly charged divisible statute is P.C. § 243(e). The offense is a CIMT if it involved use of actual violent force, but not if it involved offensive touching or other de minimus force. A specific plea to the latter prevents the offense from being a CIMT, even under Silva-Trevino. 2. Plead to an offense that requires intent of negligence or less An offense involving negligence or less is not a CIMT. For example, it has long been held that simple drunk driving, even with injury or as a repeat offense, is not a CIMT.3 See other offenses in the Chart that also should not be held to involve moral turpitude under any circumstances. Caveat: Because there are reports that some immigration judges may blur this rule under Silva-Trevino, a conviction for drunk driving coupled with a conviction for driving on a suspended license in the same incident might be held to be a CIMT, if the immigration judge were to (wrongly) combine the two offenses. The adverse Silva-Trevino rule only applies to CIMT determinations. If the immigration court does conduct a broad factual inquiry under Silva-Trevino, it may use the information only to determine if the offense involves moral turpitude, and not to determine if the conviction comes within other grounds of inadmissibility or deportability. 4 Example: Mike pleads guilty to P.C. § 243(e), spousal battery. If this offense is committed with “offensive touching,” it is neither a CIMT nor a deportable “crime of domestic violence.” If instead it is committed with actual violence, it will be held a CIMT and a deportable crime of domestic violence.5 Mike’s defender creates a vague record of conviction in which Mike pleads to the language of the statute, which does not establish whether the offense involved actual violence or an offensive touching. Under Silva-Trevino, for CIMT inquiries only, an immigration judge may make a factual inquiry into Mike’s conduct. Based on this inquiry she might find that real violence was involved and the offense is a CIMT. The judge may not use this information to hold that the offense is a deportable crime of domestic violence. Here the regular evidentiary rules known as the categorical approach apply, and the judge must base her decision only upon the reviewable record of conviction. Since the vague record does not establish that the offense involved actual 3 Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001). 4 “This opinion does not, of course, extend beyond the moral turpitude issue--an issue that justifies a departure from the Taylor/Shepard framework because moral turpitude is a non-element aggravating factor that ‘stands apart from the elements of the [underlying criminal] offense.’” Matter of Silva-Trevino, 24 I&N Dec. at 699. 5 See discussion of Calif. P.C. § 243(e) and Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006), in § N. 9 Domestic Violence. A crime of domestic violence is defined at 8 USC § 1227(a)(2)(E)(i). 113 Immigrant Legal Resource Center, www.ilrc.org § N.7 Crimes Involving Moral Turpitude January 2013 violence, she must find that Mike is not deportable under the domestic violence ground. Note, however, that best practice is to identify “minimum touching” rather than leave the record vague. Not only will it avoid a CIMT, but some immigration judges might make a mistake and apply the Silva-Trevino rule outside of CIMTs. Even if the offense is a CIMT it may not be an immigration catastrophe, depending on the individual case! Many immigrants have survived conviction of one or more CIMTs. In some cases, conviction of a single CIMT will not cause the person to be deportable and/or inadmissible. See Parts B and C. In other cases, a discretionary pardon (“waiver”) for CIMT might be available. Finally, it is quite possible that the Ninth Circuit will overturn Silva-Trevino. B. The CIMT Deportation Ground, 8 USC § 1227(a)(2)(A)(i), (ii) Who needs to avoid a deportable conviction? Permanent residents, refugees, F-1 students and other noncitizens with lawful status want to avoid being deportable, because they could lose their status. In contrast, most undocumented persons are not harmed by a deportable (as opposed to inadmissible) conviction, with these exceptions: persons who will apply for any form of non-LPR cancellation, or who have or will apply for Temporary Protected Status, want to avoid a deportable conviction, because it is a bar to such status. See discussion in Note 1: Overview. To make a noncitizen deportable under the CIMT ground, the conviction must come within at least one of the following two categories. 1. Conviction of two CIMTs since admission A noncitizen is deportable for two or more convictions of crimes involving moral turpitude that occur anytime after admission to the U.S. on any visa, or after adjustment of status. Example: Stan was admitted to the U.S. in 1991. He was convicted of petty theft in 2002 and fraud in 2012. He is deportable for conviction of two CIMTs since admission. There are two very limited exceptions, for convictions that are “purely political” or that arise in a “single scheme of criminal misconduct” (often interpreted to mean that the charges had to arise from the very same incident). 2. One conviction of a CIMT, committed within five years of admission, that carries a maximum sentence of one year or more A noncitizen is deportable for one conviction of a crime involving moral turpitude (“CIMT”) if she committed the offense within five years of her last “admission” to the United States, and if the offense carries a potential sentence of one year. 114 Immigrant Legal Resource Center, www.ilrc.org § N.7 Crimes Involving Moral Turpitude January 2013 Avoid Deportability for CIMT by Pleading to a Six-Month Misdemeanor. A single CIMT misdemeanor with a maximum possible sentence of six months will not trigger the CIMT deportation ground, regardless of when the offense was committed. Unfortunately, a CIMT misdemeanor that carries a maximum possible sentence of one year will trigger the CIMT deportation ground if the offense was committed within five years of admission. This includes “wobbler” misdemeanors. Practice Tip: Plead to attempt in order to reduce the maximum possible sentence. For example, attempted grand theft, when designated as or reduced to a misdemeanor, has a potential sentence of six months. Immigration will accept a sentence reduction under P.C. § 17, even if the motion is filed after removal proceedings are begun.6 Plead to an Offense Committed more than Five Years Since the “Date of Admission.” Consider two situations: a person who was admitted to the U.S. with any kind of visa, and a person who entered without inspection, i.e. surreptitiously crossed the border. Generally, if a noncitizen was admitted into the U.S. under any lawful visa – with a green card, on a tourist visa, with a border crossing card, or other status – that is the admission date that starts the five-year clock. This is true even if the person fell out of lawful status after the admission. 7 Example: Mabel was admitted to the U.S. as a tourist in 2003. Her permitted time ran out and she lived here unlawfully for a few years. She married a U.S. citizen and through him “adjusted status” to become a lawful permanent resident in 2007. She was convicted of a CIMT that has a potential sentence of a year, for an offense she committed in 2010. Is she deportable under the CIMT ground? No, she is not. To avoid being deportable for CIMT, Mabel needs five years between her admission date and the date she committed the offense. Her admission was in 2003, and she committed the CIMT in 2010. The fact that she was out of lawful status for some time and then adjusted status does not affect this.8 Note: If the person took a trip outside the U.S. for more than six months, or left the U.S. after being convicted, the rules are not yet clear. Consult an immigration expert. 6 La Farga v. INS, 170 F.3d 1213 (9th Cir. 1999); Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. 2003). 7 Until recently, there was conflict between federal courts and the Board of Immigration Appeals as to what date is the date of admission for this purpose. Fortunately, the Board of Immigration clarified this and adopted the federal court rule, to the benefit of the immigrant, in Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011). For further discussion see Brady, “Practice Advisory: Immigration Authorities Clarify When One Moral Turpitude Conviction Will Make a Lawful Permanent Resident Deportable,” at www.ilrc.org/crimes. 8 See Matter of Alyazji, supra. 115 Immigrant Legal Resource Center, www.ilrc.org § N.7 Crimes Involving Moral Turpitude January 2013 In contrast, if the person initially entered without inspection, e.g. surreptitiously waded across the Rio Grande River, and later “adjusted status” to become a lawful permanent resident, the admission date is the date he or she was granted lawful permanent residency. 9 Example: Bernard entered without inspection in 1999. In 2003 he adjusted status to lawful permanent residence.10 He was convicted of a CIMT which he had committed in 2008, and which had a potential sentence of a year or more. Bernard is deportable. His “date of admission” is his 2003 adjustment of status date, because he has no prior admission. He committed the CIMT in 2007, within five years after that date. Practice Tip: Avoid deportability for one CIMT by working with the five years. If there were ongoing offenses, attempt to plead to an offense that happened later in time, after the five years elapsed. For example, if Bernard had committed an ongoing fraud offense, try to plead to an incident that happened outside of the five-year period, in 2008 or later. C. The CIMT Ground of Inadmissibility, 8 USC § 1182(a)(2)(A) Who wants to avoid being inadmissible? An undocumented person who wants to apply for relief will want to avoid being inadmissible, because it is a bar to relief. A deportable permanent resident would like to avoid being inadmissible because that could be a bar to relief from removal. An asylee or refugee wants to be admissible in order to apply for LPR status. A permanent resident who is inadmissible for crimes and travel outside the U.S. can lose their status and be barred from returning. In some cases, a waiver of inadmissibility will be available for these persons. A noncitizen is inadmissible who is convicted of just one crime involving moral turpitude, whether before or after admission. There are two helpful exceptions to the rule. Petty offense exception.11 If a noncitizen (a) has committed only one moral turpitude offense ever, (b) the offense carries a potential sentence of a year or less, and (c) the “sentence imposed” was less than six months, the person is automatically not inadmissible under the CIMT ground. 9 Ibid, and see Practice Advisory, supra, for more information. 10 How could that happen? It is harder because Bernard entered without inspection. He could have married a U.S. citizen and had a visa petition submitted in 2001 or earlier, so he could adjust specially under INA § 245(i). Or he may have qualified through asylum, cancellation, or other special application. 11 8 USC § 1182(a)(2)(A)(ii)(II). 116 Immigrant Legal Resource Center, www.ilrc.org § N.7 Crimes Involving Moral Turpitude January 2013 Example: Freia is convicted of felony grand theft, the only CIMT offense she’s ever committed. (She also has been convicted of drunk driving, but as a non-CIMT that does not affect this analysis.) The judge gives her three years probation, suspends imposition of sentence, and orders her to spend one month in jail as a condition of probation. She is released after 15 days. The grand theft is reduced to a misdemeanor under PC § 17.12 Freia comes within the petty offense exception. She has committed only one CIMT, it has a potential sentence of a year or less, and the sentence imposed was one month. (For more information on sentences, see § N.4 Sentencing.) Youthful offender exception. 13 This comes up more rarely, but can be useful for young adults. A disposition in juvenile delinquency proceedings is not a conviction and has no relevance to moral turpitude determinations. But persons who were convicted as adults for acts they committed while under the age of 18 can benefit from the youthful offender exception. A noncitizen who committed only one CIMT ever, and while under the age of 18, ceases to be inadmissible as soon as five years have passed since the conviction or the release from resulting imprisonment. Example: Raoul was convicted as an adult for felony assault with a deadly weapon, based on an incident that took place when he was 17. He was sentenced to eight months and was released from imprisonment when he was 19 years old. He now is 25 years old. This conviction does not make him inadmissible for moral turpitude. Inadmissible for making a formal admission of a crime involving moral turpitude. This ground does not often come up in practice. A noncitizen who makes a formal admission to officials of all of the elements of a CIMT is inadmissible even if there is no conviction. This does not apply if the case was brought to criminal court but resolved in a disposition that is less than a conviction (e.g., charges dropped, conviction vacated).14 Counsel should avoid having clients formally admit to offenses that are not charged with. Resource: If you wish to check other consequences of a CIMT besides being a deportable or inadmissible conviction – e.g. when a CIMT conviction triggers mandatory detention or is a bar to cancellation -- see “All Those Rules About Crimes Involving Moral Turpitude” at www.ilrc.org/crimes. 12 Reducing a felony to a misdemeanor will give the offense a maximum possible sentence of one year for purposes of the petty offense exception. La Farga v. INS, 170 F.3d 1213 (9th Cir. 1999); Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. 2003). 13 8 USC § 1182(a)(2)(A)(ii)(I). 14 See, e.g., Matter of CYC, 3 I&N Dec. 623 (BIA 1950) (dismissal of charges overcomes independent admission) and discussion in Defending Immigrants in the Ninth Circuit, § 4.4 (www.ilrc.org). 117 Immigrant Legal Resource Center, www.ilrc.org § N.7 Crimes Involving Moral Turpitude January 2013 Appendix 7 - I LEGAL SUMMARIES TO HAND TO THE DEFENDANT The majority of noncitizens are unrepresented in removal proceedings. Further, many immigration defense attorneys and immigration judges are not aware of all defenses relating to crimes, and they might not recognize the defense you have created. This paper may be the only chance for the defendant to benefit from your work. Please give a copy of the applicable paragraph/s to the Defendant, with instructions to present it to an immigration defense attorney or the Immigration Judge. Please include a copy of any official documents (e.g. plea form) that will support the defendant’s argument. Please give or mail a second copy to the defendant’s immigration attorney, friend, or relative, or mail it to the defendant’s home address. Authorities at the immigration detention center may confiscate the defendant’s documents. This will provide a back-up copy accessible to the defendant. * * * * * * * This paper was given to me by my attorney and pertains to possible legal defense. I request that you do not take this paper away from me. I do not admit alienage by submitting this paper. If I am charged with being an alien, I submit the following statement. If the record of conviction specifically identifies elements of an offense that do not involve moral turpitude, the conviction is not of a crime involving moral turpitude and the immigration judge may not go beyond the record to conduct a fact-based inquiry under SilvaTrevino. See Matter of Silva-Trevino, 24 I&N Dec. 687, 699 (AG 2008); Matter of AhortalejoGuzman, 25 I&N Dec. 465 (BIA 2011) (evidence outside of the record of conviction may not be considered where the conviction record itself demonstrates whether the noncitizen was convicted of engaging in conduct that constitutes a crime involving moral turpitude). * * * * * * * * This paper was given to me by my attorney and pertains to possible legal defense. I request that you do not take this paper away from me. I do not admit alienage by submitting this paper. If I am charged with being an alien, I submit the following statement. A crime with a mens rea of negligence or less does not qualify as a crime involving moral turpitude. See Matter of Silva-Trevino, 24 I&N Dec. 687, 697 (AG 2008) (a crime involving moral turpitude requires “both reprehensible conduct and some degree of scienter, whether specific intent, deliberateness, willfulness, or recklessness.”). 118 Immigrant Legal Resource Center, www.ilrc.org § N.7 Crimes Involving Moral Turpitude January 2013 * * * * * * * * This paper was given to me by my attorney and pertains to possible legal defense. I request that you do not take this paper away from me. I do not admit alienage by submitting this paper. If I am charged with being an alien, I submit the following statement. Matter of Silva-Trevino permits an immigration judge to go beyond the record of conviction only to determine if the offense of conviction is a crime involving moral turpitude, and not to determine if it is a crime of violence or other category. “This opinion does not, of course, extend beyond the moral turpitude issue--an issue that justifies a departure from the Taylor/Shepard framework because moral turpitude is a non-element aggravating factor that ‘stands apart from the elements of the [underlying criminal] offense.’” Matter of Silva-Trevino, 24 I&N Dec. 687, 699 (AG 2008). * * * * * * * * This paper was given to me by my attorney and pertains to possible legal defense. I request that you do not take this paper away from me. I do not admit alienage by submitting this paper. If I am charged with being an alien, I submit the following statement. When a California felony is designated or reduced to a misdemeanor, the offense has a potential sentence of one year for immigration purposes and can come within the petty offense exception to the moral turpitude inadmissibility ground. This is true regardless of when the offense is reduced, including after initiation of removal proceedings. La Farga v. INS, 170 F.3d 1213 (9th Cir. 1999); Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. 2003). * * * * * * * * This paper was given to me by my attorney and pertains to possible legal defense. I request that you do not take this paper away from me. I do not admit alienage by submitting this paper. If I am charged with being an alien, I submit the following statement. Conviction of a crime involving moral turpitude will cause deportability if the offense has a potential sentence of a year or more and was committed within five years of the “date of admission.” Generally if a noncitizen was admitted into the U.S. under any status, that date is the admission date that begins the five years. This is true even if the person fell out of lawful status after the admission and/or later adjusted status to permanent residence. Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011) (overruling Matter of Shanu, 23 I&N Dec. 754, 759 (BIA 2005). 119 Immigrant Legal Resource Center, www.ilrc.org § N.7 Crimes Involving Moral Turpitude January 2013 APPENDIX 7 ‐ II CHEAT SHEET – DOES THIS CONVICTION MAKE THIS INDIVIDUAL DEPORTABLE OR INADMISSIBLE UNDER THE MORAL TURPITUDE GROUNDS? I. DEPORTABLE FOR MORAL TURPITUDE, 8 USC § 1227(a)(2)(A) Deportable for One Conviction of a Crime Involving Moral Turpitude (“CIMT”), if: a) Convicted b) Of one CIMT c) That has a potential sentence of one year or more d) And was committed within five years after date of admission To prevent deportability for a single CIMT: a) Avoid a “conviction” by getting pre‐plea diversion or treatment in juvenile proceedings; or b) Plead to an offense that is not a CIMT; or c) Avoid a potential one‐year sentence by pleading to a misdo with a six‐month maximum sentence. Or in California plead to attempt to commit either a one‐year misdo or a felony that can be reduced to a misdo, for a maximum possible sentence of six months; or d) Plead to an incident that happened more than five years after the “date of admission.” This is usually the date the person was first admitted into the U.S. with any kind of visa or card. Or, if the person entered the U.S. without inspection – i.e., never was admitted on any visa – it is the date that the person became a permanent resident by “adjusting status” within the U.S. If the person left the U.S. after becoming inadmissible for crimes, or for more than six months, get more advice. Deportable for Conviction of Two or More CIMTs After Admission a) Both convictions must be after the person was admitted to the U.S. in some status, or adjusted status b) The convictions may not spring from the same incident (“single scheme”) II. INADMISSIBLE FOR MORAL TURPITUDE, 8 USC 1182(a)(2)(A) Inadmissible for One or More Convictions of a CIMT Petty Offense Exception automatically means the person is not inadmissible for CIMT. To qualify for the exception: a) Defendant must have committed only one CIMT ever b) The offense must have a potential sentence of one year or less. Here a one‐year misdo, or a felony wobbled down to a misdemeanor, will qualify for the exception. c) Sentence imposed is six months or less. For example, suspended imposition of sentence, three years probation, six months jail ordered as a condition of probation will qualify. Youthful Offender Exception applies rarely, but benefits youth who were convicted as adults. Noncitizen is not inadmissible for CIMT if he or she committed only one CIMT ever, while under the age of 18, and the conviction or resulting imprisonment occurred at least five years ago. 120

Tuesday, April 17, 2018

Citizenship & Naturalization- Good Moral Character-USCIS Policy Manual

USCIS Policy Manual

Current as of March 28, 2018

Volume 12 - Citizenship & Naturalization

Part F - Good Moral Character

Chapter 1 - Purpose and Background

A. Purpose

One of the general requirements for naturalization is good moral character (GMC). GMC means character which measures up to the standards of average citizens of the community in which the applicant resides. [1] In general, an applicant must show that he or she has been and continues to be a person of GMC during the statutory period prior to filing and up to the time of the Oath of Allegiance. [2]
The applicable naturalization provision under which the applicant files determines the period during which the applicant must demonstrate GMC. [3] The applicant’s conduct outside the GMC period may also impact whether he or she meets the GMC requirement. [4]
While USCIS determines whether an applicant has met the GMC requirement on a case-by-case basis, certain types of criminal conduct automatically preclude applicants from establishing GMC and may make the applicant subject to removal proceedings. [5] An applicant may also be found to lack GMC for other types of criminal conduct (or unlawful acts).
An officer’s assessment of whether an applicant meets the GMC requirement includes an officer’s review of:
The applicant’s record;
Statements provided in the naturalization application; and
Oral testimony provided during the interview.
There may be cases that are affected by specific jurisdictional case law. The officer should rely on local USCIS counsel in cases where there is a question about whether a particular offense rises to the level of precluding an applicant from establishing GMC. In addition, the offenses and conduct which affect the GMC determination may also render an applicant removable.

B. Background

The Naturalization Act of 1790 introduced the long-standing GMC requirement for naturalization. Any conduct or act that offends the accepted moral character standards of the community in which the applicant resides should be considered without regard to whether the applicant has been arrested or convicted of an offense.
In general, an applicant for naturalization must establish GMC throughout the requisite periods of continuous residence in the United States. In prescribing specific periods during which GMC must be established, Congress generally intended to make provision for the reformation and eventual naturalization of persons who were guilty of certain past misconduct.

C. Legal Authorities

INA 101(f) – Good moral character definition
INA 3168 CFR 316 – General naturalization requirements
INA 316(e)8 CFR 316.10 – Good moral character requirement
INA 318 – Prerequisite to naturalization, burden of proof

Footnotes

1.
See 8 CFR 316.10(a)(2). See INA 101(f). See In re Mogus, 73 F.Supp. 150 (W.D. Pa. 1947) (moral standard of average citizen).
 
2.
 
3.
See Chapter 2, Adjudicative Factors, Section A, Applicable Statutory Period [12 USCIS-PM F.2(A)].
 
4.
 
5.
See INA 101(f).
 

Chapter 2 - Adjudicative Factors

A. Applicable Statutory Period

The applicable period during which an applicant must show that he or she has been a person of good moral character (GMC) depends on the corresponding naturalization provision. [1] In general, the statutory period for GMC for an applicant filing under the general naturalization provision starts five years prior to the date of filing. [2]
The statutory period starts three years prior to the date of filing for certain spouses of U.S. citizens. [3] The period during which certain service members or veterans must show GMC starts one or five years from the date of filing depending on the military provision. [4]
In all cases, the applicant must also show that he or she continues to be a person of GMC until the time of his or her naturalization. [5]

B. Conduct Outside of the Statutory Period

USCIS is not limited to reviewing the applicant's conduct only during the applicable GMC period. An applicant’s conduct prior to the GMC period may affect the applicant’s ability to establish GMC if the applicant’s present conduct does not reflect a reformation of character or the earlier conduct is relevant to the applicant’s present moral character. [6]
In general, an officer must consider the totality of the circumstances and weigh all factors, favorable and unfavorable, when considering reformation of character in conjunction with GMC within the relevant period. [7] The following factors may be relevant in assessing an applicant’s current moral character and reformation of character:
Family ties and background;
Absence or presence of other criminal history;
Education;
Employment history;
Other law-abiding behavior (for example, meeting financial obligations, paying taxes);
Community involvement;
Credibility of the applicant;
Compliance with probation; and
Length of time in United States.

C. Definition of Conviction

1. Statutory Definition of Conviction for Immigration Purposes
Most of the criminal offenses that preclude a finding of GMC require a conviction for the disqualifying offense or arrest. A “conviction” for immigration purposes means a formal judgment of guilt entered by the court. A conviction for immigration purposes also exists in cases where the adjudication of guilt is withheld if the following conditions are met:
A judge or jury has found the alien guilty or the alien entered a plea of guilty or nolo contendere [8] or has admitted sufficient facts to warrant a finding of guilt; and
The judge has ordered some form of punishment, penalty, or imposed a restraint on the alien’s liberty. [9]
It is not always clear if the outcome of the arrest resulted in a conviction. Various states have provisions for diminishing the effects of a conviction. In some states, adjudication may be deferred upon a finding or confession of guilt. Some states have a pretrial diversion program whereby the case is removed from the normal criminal proceedings. This way the person may enter into a counseling or treatment program and potentially avoid criminal prosecution.
If the accused is directed to attend a pre-trial diversion or intervention program, where no admission or finding of guilt is required, the order may not count as a conviction for immigration purposes. [10]
2. Juvenile Convictions
In general, a guilty verdict, ruling, or judgment in a juvenile court does not constitute a conviction for immigration purposes. [11] A conviction for a person who is under 18 years of age and who was charged as an adult constitutes a conviction for immigration purposes.
3. Court Martial Convictions
A general “court martial” is defined as a criminal proceeding under the governing laws of the U.S. armed forces. A judgment of guilt by a court martial has the same force and effect as a conviction by a criminal court. [12] However, disciplinary actions in lieu of a court martial are not convictions for immigration purposes.
4. Deferrals of Adjudication
In cases where adjudication is deferred, the original finding or confession of guilt and imposition of punishment is sufficient to establish a conviction for immigration purposes because both conditions establishing a conviction are met. If the court does not impose some form of punishment, then it is not considered a conviction even with a finding or confession of guilt. A decision or ruling of nolle prosequi [13] does not meet the definition of conviction.
5. Vacated Judgments
If a judgment is vacated for cause due to Constitutional defects, statutory defects, or pre-conviction errors affecting guilt, it is not considered a conviction for immigration purposes. The judgment is considered a conviction for immigration purposes if it was dismissed for any other reason, such as completion of a rehabilitative period (rather than on its merits) or to avoid adverse immigration consequences. [14]
A conviction vacated where a criminal court failed to advise a defendant of the immigration consequences of a plea, which resulted from a defect in the underlying criminal proceeding, is not a conviction for immigration purposes. [15]
6. Foreign Convictions
USCIS considers a foreign conviction to be a “conviction” in the immigration context if the conviction was the result of an offense deemed to be criminal by United States standards. [16] In addition, federal United States standards on sentencing govern the determination of whether the offense is a felony or a misdemeanor regardless of the punishment imposed by the foreign jurisdiction. [17] The officer may consult with local USCIS counsel in cases involving foreign convictions.
7. Pardons
An applicant who has received a full and unconditional executive pardon [18] prior to the start of the statutory period may establish GMC if the applicant shows that he or she has been reformed and rehabilitated prior to the statutory period. [19] If the applicant received a pardon during the statutory period, the applicant may establish GMC if he or she shows evidence of extenuating or exonerating circumstances that would establish his or her GMC. [20]
Foreign pardons do not eliminate a conviction for immigration purposes. [21]
8. Expunged Records
Expunged Records and the Underlying Conviction
A record of conviction that has been expunged does not remove the underlying conviction. [22] For example, an expunged record of conviction for a controlled substance violation [23] or any crime involving moral turpitude (CIMT) does not relieve the applicant from the conviction in the immigration context. [24] In addition, foreign expungements are still considered convictions for immigration purposes. [25]
The Board of Immigration Appeals (BIA) has held that a state court action to “expunge, dismiss, cancel, vacate, discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute” has no effect on removing the underlying conviction for immigration purposes. [26]
The officer may require the applicant to submit evidence of a conviction regardless of whether the record of the conviction has been expunged. It remains the applicant’s responsibility to obtain his or her records regardless of whether they have been expunged or sealed by the court. USCIS may file a motion with the court to obtain a copy of the record in states where the applicant is unable to obtain the record.

D. Effect of Probation

An officer may not approve a naturalization application while the applicant is on probation, parole, or under a suspended sentence. [27] However, an applicant who has satisfactorily completed probation, parole, or a suspended sentence during the relevant statutory period is not automatically precluded from establishing GMC. The fact that an applicant was on probation, parole, or under a suspended sentence during the statutory period, however, may affect the overall GMC determination.

E. Admission of Certain Criminal Acts

An applicant may be unable to establish GMC if he or she admits committing certain offenses even if the applicant has never been formally charged, indicted, arrested or convicted. [28] This applies to offenses involving “moral turpitude” or any violation of, or a conspiracy or attempt to violate, any law or regulation relating to a controlled substance. [29] When determining whether an applicant committed a particular offense, the officer must review the relevant statute in the jurisdiction where it is alleged to have been committed.
The officer must provide the applicant with a full explanation of the purpose of the questioning stemming from the applicant’s declaration that he or she committed an offense. In order for the applicant’s declaration to be considered an “admission,” it must meet the long held requirements for a valid “admission” of an offense: [30]
The officer must provide the applicant the text of the specific law from the jurisdiction where the offense was committed;
The officer must provide an explanation of the offense and its essential elements in “ordinary” language; and
The applicant must voluntarily admit to having committed the particular elements of the offense under oath. [31]
The officer must ensure that the applicant is under oath when taking the sworn statement to record the admission. The sworn statement must cover the requirements for a valid admission, to include the specifics of the act or acts that may prevent the applicant from establishing GMC. The officer may consult with his or her supervisor to ensure that sufficient written testimony has been received from the applicant prior to making a decision on the application.

F. “Purely Political Offense” Exception

There is an exception to certain conditional bars to GMC in cases where the offense was a “purely political offense” that resulted in conviction, or in conviction and imprisonment, outside of the United States. [32] Purely political offenses are generally offenses that “resulted in convictions obviously based on fabricated charges or predicated upon repressive measures against racial, religious or political minorities.” [33]
The “purely political offense” exception applies to the following conditional bars to GMC: [34]
Conviction for one or more crimes involving moral turpitude (CIMTs); [35]
Conviction of two or more offenses with a combined sentence of five years or more; [36] and
Incarceration for a total period of 180 days or more. [37]
These conditional bars to GMC do not apply if the underlying conviction was for a “purely political offense” abroad. The officer should rely on local USCIS counsel in cases where there is a question about whether a particular offense should be considered a “purely political offense.”

G. Extenuating Circumstances

Certain conditional bars to GMC should not adversely affect the GMC determination if the applicant shows extenuating circumstances. [38] The extenuating circumstance must precede or be contemporaneous with the commission of the offense. USCIS does not consider any conduct or equity (including evidence of reformation or rehabilitation) subsequent to the commission of the offense as an extenuating circumstance.
The “extenuating circumstances” provision applies to the following conditional bars to GMC: [39]
Failure to support dependents; [40] 
Adultery; [41] and
Unlawful acts. [42]
These conditional bars to GMC do not apply if the applicant shows extenuating circumstances. The officer should provide the applicant with an opportunity during the interview to provide evidence and testimony of extenuating circumstances in relevant cases.

H. Removability and GMC

Certain permanent and conditional bars to GMC may warrant a recommendation that the applicant be placed in removal proceedings. [43] This depends on various factors specific to each case. Not all applicants who are found to lack GMC are removable. An applicant may be found to lack GMC and have his or her naturalization application denied under those grounds without necessitating a recommendation for removal proceedings. USCIS will not make a decision on any naturalization application from an applicant who is in removal proceedings. [44]

Footnotes

1.
See the relevant Volume 12 [12 USCIS-PM] part for the specific statutory period pertaining to each naturalization provision.
 
2.
See Part D, General Naturalization Requirements, Chapter 1, Purpose and Background, Section B, General Eligibility Requirements [12 USCIS-PM D.1(B)]. See INA 316(a). See 8 CFR 316.2(a)(7).
 
3.
See Part G, Spouses of U.S. Citizens, Chapter 1, Purpose and Background, Section C, Table of General Provisions [12 USCIS-PM G.1(C)]. See INA 319(a) and 8 CFR 319.1(a)(7).
 
4.
See Part I, Military Members and their Families, Chapter 9, Spouses, Children, and Surviving Family Benefits, Section B, Spouses of Military Members [12 USCIS-PM I.9(B)]. See INA 328(c) and INA 329. See 8 CFR 328.2(d) and 8 CFR 329.2(d).
 
5.
 
6.
 
7.
See Ralich v. United States, 185 F.2d 784 (1950) (provided false testimony within the statutory period and operated a house of prostitution prior to the statutory period). See Marcantonio v. United States, 185 F.2d 934 (1950) (applicant had rehabilitated his character after multiple arrests before statutory period).
 
8.
The term “nolo contendere” is Latin for “I do not wish to contest.”
 
9.
 
10.
See Matter of Grullon20 I&N Dec. 12 (BIA 1989).
 
11.
See Matter of Devison-Charles, 22 I&N Dec. 1362 (BIA 2000).
 
12.
See Matter of Rivera-Valencia24 I&N Dec. 484 (BIA 2008).
 
13.
The term “nolle prosequi” is Latin for “we shall no longer prosecute.”
 
14.
See Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006).
 
15.
See Matter of Adamiak, 23 I&N Dec. 878 (BIA 2006). See Alim v. Gonzales, 446 F.3d 1239 (11th Cir 2006).
 
16.
See Matter of Squires, 17 I&N Dec. 561 (BIA 1980). See Matter of McNaughton16 I&N Dec. 569 (BIA 1978).
 
17.
See Lennon v. INS, 527 F.2d 187 (2nd Cir. 1975).
 
18.
Executive pardons are given by the President or a governor of the United States.
 
19.
 
21.
See Marino v. INS, 537 F.2d 686 (2nd Cir. 1976). See Mullen-Cofee v. INS, 976 F.2d 1375 (11th Cir. 1992). See Matter of B-, 7 I&N Dec. 166 (BIA 1956) (referring to amnesty).
 
22.
See Matter of Marroquin, 23 I&N Dec. 705 (A.G. 2005).
 
23.
For cases arising in the Ninth Circuit involving state law convictions for simple possession of a controlled substance, please consult local counsel as the date of the conviction may affect whether possible treatment under the Federal First Offender Act renders the conviction invalid for immigration purposes. See Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir 2011).
 
25.
See Danso v. Gonzales, 489 F.3d 709 (5th Cir. 2007). See Elkins v. Comfort, 392 F.3d 1159 (10th Cir. 2004).
 
26.
See In re Roldan-Santoyo, 22 I&N Dec. 512 (BIA 1999).
 
27.
 
29.
See Chapter 5, Conditional Bars for Acts in Statutory Period [12 USCIS-PM F.5]. See 8 CFR 316.10(b)(2)(i) (offenses involving “moral turpitude”). See 8 CFR 316.10(b)(2)(iii) (violation of controlled substance law).
 
30.
See Matter of K-, 7 I&N Dec. 594 (BIA 1957).
 
31.
See Matter of J-, 2 I&N Dec. 285 (BIA 1945).
 
32.
See In re O'Cealleagh23 I&N Dec. 976 (BIA 2006) (finding that a CIMT offense must be completely or totally political for “purely political offense” exception to apply).
 
33.
 
34.
See Chapter 5, Conditional Bars for Acts in Statutory Period [12 USCIS-PM F.5], for further guidance on each bar to GMC.
 
35.
See Chapter 5, Conditional Bars for Acts in Statutory Period, Section A, One or More Crimes Involving Moral Turpitude [12 USCIS-PM F.5(A)].
 
36.
See Chapter 5, Conditional Bars for Acts in Statutory Period, Section B, Aggregate Sentence of Five Years or More [12 USCIS-PM F.5(B)].
 
37.
See Chapter 5, Conditional Bars for Acts in Statutory Period, Section D, Imprisonment for 180 Days or More [12 USCIS-PM F.5(D)].
 
38.
 
39.
See Chapter 5, Conditional Bars for Acts in Statutory Period [12 USCIS-PM F.5], for further guidance on extenuating circumstances.
 
40.
See Chapter 5, Conditional Bars for Acts in Statutory Period, Section K, Failure to Support Dependents [12 USCIS-PM F.5(K)].
 
41.
See Chapter 5, Conditional Bars for Acts in Statutory Period, Section L, Adultery [12 USCIS-PM F.5(L)].
 
42.
See Chapter 5, Conditional Bars for Acts in Statutory Period, Section M, Unlawful Acts [12 USCIS-PM F.5(M)].
 
43.
See INA 237 (“general classes of deportable aliens”).
 
44.
See INA 318. See Part B, Naturalization Examination, Chapter 3, Naturalization Interview, Section B, Preliminary Review of Application [12 USCIS-PM B.3(B)].
 

Chapter 3 - Evidence and the Record

A. Applicant Testimony

Issues relevant to the good moral character (GMC) requirement may arise at any time during the naturalization interview. The officer’s questions during the interview should elicit a complete record of any criminal, unlawful, or questionable activity in which the applicant has ever engaged regardless of whether that information eventually proves to be material to the GMC determination.
The officer should take into consideration the education level of the applicant and his or her knowledge of the English language. The officer may rephrase questions and supplement the inquiry with additional questions to better ensure that the applicant understands the proceedings. [1]
The officer must take a sworn statement from an applicant when the applicant admits committing an offense for which the applicant has never been formally charged, indicted, arrested or convicted. [2]

B. Court Dispositions

In general, an officer has the authority to request the applicant to provide a court disposition for any criminal offense committed in the United States or abroad to properly determine whether the applicant meets the GMC requirement. USCIS requires applicants to provide court dispositions certified by the pertinent jurisdiction for any offense committed during the statutory period. In addition, USCIS may request any additional evidence that may affect a determination regarding the applicant’s GMC. The burden is on the applicant to show that an offense does not prevent him or her from establishing GMC.
An applicant is required to provide a certified court disposition for any arrest involving the following offenses and circumstances, regardless of whether the arrest resulted in a conviction:
Arrest for criminal act committed during the statutory period;
Arrest that occurred on or after November 29, 1990, that may be an aggravated felony; [3]
Arrest for murder;
Arrest for any offense that would render the applicant removable;
Arrest for offenses outside the statutory period, if when combined with other offenses inside the statutory period, the offense would preclude the applicant from establishing GMC; and
Arrest for crime where the applicant would still be on probation at the time of adjudication of the naturalization application or may have been incarcerated for 180 days during the statutory period.
These procedures are not intended to limit the discretion of any officer in requesting documentation that the officer needs to properly assess an applicant’s GMC.
In cases where a court disposition or police record is not available, the applicant must provide original or certified confirmation that the record is not available from the applicable law enforcement agency or court.

C. Failure to Respond to Request for Evidence

In cases where the initial naturalization examination has already been conducted, the officer should adjudicate the naturalization application on the merits where the applicant fails to respond to a request for additional evidence. [4] The officer should not deny the application for lack of prosecution after the initial naturalization examination. [5]

Footnotes

1.
See Part E, English and Civics Testing and Exceptions, Chapter 2, English and Civics Testing [12 USCIS-PM E.2], for guidance on rephrasing questions.
 
2.
See 8 CFR 316.10(b)(2)(iv). See Chapter 2, Adjudicative Factors, Section E, Admission of Certain Criminal Acts [12 USCIS-PM F.2(E)].
 
3.
See INA 101(a)(43). See Chapter 4, Permanent Bars to Good Moral Character (GMC), Section B, Aggravated Felony [12 USCIS-PM F.4(B)].
 
4.
See Part B, Naturalization Examination, Chapter 4, Results of the Naturalization Examination [12 USCIS-PM B.4], for guidance on decisions on the application, to include cases where the applicant fails to respond.
 
5.
See INA 335(e). See 8 CFR 335.7.
 

Chapter 4 - Permanent Bars to Good Moral Character (GMC)

A. Murder

An applicant who has been convicted of murder at any time is permanently barred from establishing good moral character (GMC) for naturalization. [1]

B. Aggravated Felony

In 1996, Congress expanded the definition and type of offense considered an “aggravated felony” in the immigration context. [2] An applicant who has been convicted of an “aggravated felony” on or after November 29, 1990, is permanently barred from establishing GMC for naturalization. [3]
While an applicant who has been convicted of an aggravated felony prior to November 29, 1990, is not permanently barred from naturalization, the officer should consider the seriousness of the underlying offense (aggravated felony) along with the applicant's present moral character in determining whether the applicant meets the GMC requirement. If the applicant's actions during the statutory period do not reflect a reform of his or her character, then the applicant may not be able to establish GMC. [4]
Some offenses require a minimum term of imprisonment of one year to qualify as an aggravated felony in the immigration context. The term of imprisonment is the period of confinement ordered by the court regardless of whether the court suspended the sentence. [5] For example, an offense involving theft or a crime of violence is considered an aggravated felony if the term of imprisonment ordered by the court is one year or more, even if the court suspended the entire sentence. [6]
The table below serves as a quick reference guide listing aggravated felonies in the immigration context. The officer should review the specific statutory language for further information.
“Aggravated Felonies” in the Immigration Context
Aggravated Felony
Citation
Murder, Rape, or Sexual Abuse of a Minor
Illicit Trafficking in Controlled Substance
Illicit Trafficking in Firearms or Destructive Devices
Money Laundering Offenses (over $10,000)
Explosive Materials and Firearms Offenses
Crime of Violence (imprisonment term of at least 1 yr)
Theft Offense (imprisonment term of at least 1 yr)
Demand for or Receipt of Ransom
Child Pornography Offense
Racketeering, Gambling (imprisonment term of at least 1 yr)
Prostitution Offenses (managing, transporting, trafficking)
Gathering or Transmitting Classified Information
Fraud or Deceit Offenses or Tax Evasion (over $10,000)
Alien Smuggling
Illegal Entry or Reentry by Removed Aggravated Felon
Passport, Document Fraud (imprisonment term of at least 1 yr)
Failure to Appear Sentence (offense punishable by at least 5 yrs)
Bribery, Counterfeiting, Forgery, or Trafficking in Vehicles
Obstruction of Justice, Perjury, Bribery of Witness
Failure to Appear to Court (offense punishable by at least 2 yrs)
Attempt or Conspiracy to Commit an Aggravated Felony

C. Persecution, Genocide, Torture, or Severe Violations of Religious Freedom

The applicant is responsible for providing any evidence or documentation to support a claim that he or she is not ineligible for naturalization based on involvement in any of the activities addressed in this section.
1. Nazi Persecutions
An applicant who ordered, incited, assisted, or otherwise participated in the persecution of any person or persons in association with the Nazi Government of Germany or any government in an area occupied by or allied with the Nazi Government of Germany is permanently barred from establishing GMC for naturalization. [7]
2. Genocide
An applicant who has ordered, incited, assisted, or otherwise participated in genocide, at any time is permanently barred from establishing GMC for naturalization. [8]The criminal offense of “genocide” includes any of the following acts committed in time of peace or time of war with the specific intent to destroy in whole or in substantial part a national, ethnic, racial, or religious group as such:
Killing members of that group;
Causing serious bodily injury to members of that group;
Causing the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques;
Subjecting the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part;
Imposing measures intended to prevent births within the group; or
Transferring by force children of the group to another group. [9]
3. Torture or Extrajudicial Killings
An applicant who has committed, ordered, incited, assisted, or otherwise participated in the commission of any act of torture or under color of law of any foreign nation any extrajudicial killing is permanently barred from establishing GMC for naturalization. [10]
“Torture” is defined as an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his or her custody or physical control. [11]
An “extrajudicial killing” is defined as a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees, which are recognized as indispensable by civilized peoples. [12]
4. Particularly Severe Violations of Religious Freedom
An applicant who was responsible for, or directly carried out, particularly severe violations of religious freedom while serving as a foreign government official at any time is not able to establish GMC. [13] “Particularly severe violations of religious freedom” are defined as systematic, ongoing, egregious violations of religious freedom, including violations such as:
Torture or cruel, inhuman, or degrading treatment or punishment;
Prolonged detention without charges;
Causing the disappearance of persons by the abduction or clandestine detention of those persons; or
Other flagrant denial of the right to life, liberty, or the security of persons. [14]

Footnotes

2.
See INA 101(a)(43). See the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208 , 110 Stat. 3009-546 (September 30, 1996).
 
4.
 
5.
See INA 101(a)(48)(B). See Matter of S-S-, 21 I&N Dec. 900 (BIA 1997).
 
7.
 
9.
See 18 U.S.C. 1091. See Article II of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (78 U.N.T.S. 278 [Dec. 9, 1948]).
 
10.
 
11.
 
12.
See 28 U.S.C. 1350 (Note). See Section 3(a) of the Torture Victim Protection Act of 1991.
 
13.
 
14.
 

Chapter 5 - Conditional Bars for Acts in Statutory Period

In addition to the permanent bars to good moral character (GMC), the Immigration and Nationality Act (INA) and corresponding regulations include bars to GMC that are not permanent in nature. USCIS refers to these bars as “conditional bars.” These bars are triggered by specific acts, offenses, activities, circumstances, or convictions within the statutory period for naturalization, including the period prior to filing and up to the time of the Oath of Allegiance. [1] An offense that does not fall within a permanent or conditional bar to GMC may nonetheless affect an applicant’s ability to establish GMC. [2]
With regard to bars to GMC requiring a conviction, the officer reviews the relevant federal or state law or regulation of the United States, or law or regulation of any foreign country to determine whether the applicant can establish GMC.
The table below serves as a quick reference guide on the general conditional bars to establishing GMC for acts occurring during the statutory period. The sections and paragraphs that follow the table provide further guidance on each bar and offense.
Conditional Bars to GMC for Acts Committed in Statutory Period
Offense
Citation
Description
One or More CIMTs
Conviction or admission of one or more CIMTs (other than political offense), except for one petty offense
Aggregate Sentence of Five Yrs or More
Conviction of two or more offenses with combined sentence of five years or more (other than political offense)
Controlled Substance Violation
Violation of any law on controlled substances, except for simple possession of 30g or less of marijuana
Incarceration for 180 Days
Incarceration for a total period of 180 days or more, except political offense and ensuing confinement abroad
False Testimony under Oath
False testimony for the purpose of obtaining any immigration benefit
Prostitution Offenses
Engaged in prostitution, attempted or procured to import prostitution, or received proceeds from prostitution
Smuggling of a Person
Involved in smuggling of a person to enter or try to enter the United States in violation of law
Polygamy
Practiced or is practicing polygamy (the custom of having more than one spouse at the same time)
Gambling Offenses
Two or more gambling offenses or derives income principally from illegal gambling activities
Habitual Drunkard
Is or was a habitual drunkard
Failure to Support Dependents
Willful failure or refusal to support dependents, unless extenuating circumstances are established
Adultery
Extramarital affair tending to destroy existing marriage, unless extenuating circumstances are established
Unlawful Acts
Unlawful act that adversely reflect upon GMC, unless extenuating circumstances are established

A. One or More Crimes Involving Moral Turpitude

1. Crime Involving Moral Turpitude (CIMT)
“Crime involving moral turpitude” (CIMT) is a term used in the immigration context that has no statutory definition. Extensive case law, however, has provided sufficient guidance on whether an offense rises to the level of a CIMT. The courts have held that moral turpitude “refers generally to conduct that shocks the public conscience 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.” [3]
Whether an offense is a CIMT is largely based on whether the offense involves willful conduct that is morally reprehensible and intrinsically wrong, the essence of which is a reckless, evil or malicious intent. The Attorney General has decreed that a finding of “moral turpitude” requires that the perpetrator committed a reprehensible act with some form of guilty knowledge. [4]
The officer should consider the nature of the offense in determining whether it is a CIMT. [5] In many cases, the CIMT determination depends on whether the relevant state statute includes one of the elements that involves moral turpitude. For example, an offense or crime may be a CIMT in one state, but a similarly named crime in another state may not be a CIMT because of differences in the definition of the crime or offense. The officer may rely on local USCIS counsel in cases where there is a question about whether a particular offense is a CIMT.
The table below serves as a quick reference guide on the general categories of CIMTs and their respective elements or determining factors. The paragraphs that follow the table provide further guidance on each category.
General Categories of Crimes Involving Moral Turpitude (CIMTs)
CIMT Category
Elements of Crime
Crimes against a person
Criminal intent or recklessness, or is defined as morally reprehensible by state (may include statutory rape)
Crimes against property
Involving fraud against the government or an individual (may include theft, forgery, robbery)
Sexual and family crimes
No one set of principles or elements; see further explanation below (may include spousal or child abuse)
Crimes against authority of the Government
Presence of fraud is the main determining factor (may include offering a bribe, counterfeiting)
Crimes Against a Person
Crimes against a person involve moral turpitude when the offense contains criminal intent or recklessness or when the crime is defined as morally reprehensible by state statute. Criminal intent or recklessness may be inferred from the presence of unjustified violence or the use of a dangerous weapon. For example, aggravated battery is usually, if not always, a CIMT. Simple assault and battery is not usually considered a CIMT.
Crimes Against Property
Moral turpitude attaches to any crime against property which involves fraud, whether it entails fraud against the government or against an individual. Certain crimes against property may require guilty knowledge or intent to permanently take property. Petty theft, grand theft, forgery, and robbery are CIMTs in some states.
Sexual and Family Crimes
It is difficult to discern a distinguishing set of principles that the courts apply to determine whether a particular offense involving sexual and family crimes is a CIMT. In some cases, the presence or absence of violence seems to be an important factor. The presence or absence of criminal intent may also be a determining factor. The CIMT determination depends upon state statutes and the controlling case law and must be considered on a case-by-case basis.
Offenses such as spousal or child abuse may rise to the level of a CIMT, while an offense involving a domestic simple assault generally does not. An offense relating to indecent exposure or abandonment of a minor child may or may not rise to the level of a CIMT. In general, if the person knew or should have known that the victim was a minor, any intentional sexual contact with a child involves moral turpitude. [6]
Crimes Against the Authority of the Government
The presence of fraud primarily determines the presence of moral turpitude in crimes against the authority of the government. Offering a bribe to a government official and offenses relating to counterfeiting are generally CIMTs. Offenses relating to possession of counterfeit securities without intent and contempt of court, however, are not generally CIMTs.
2. Committing One or More CIMTs in Statutory Period
An applicant who is convicted of or admits to committing one or more CIMTs during the statutory period cannot establish GMC for naturalization. [7] If the applicant has only been convicted of (or admits to) one CIMT, the CIMT must have been committed within the statutory period as well. In cases of multiple CIMTs, only the commission and conviction (or admission) of one CIMT needs to be within the statutory period.
Petty Offense Exception
An applicant who has committed only one CIMT that is a considered a “petty offense,” such as petty theft, may be eligible for an exception if all of the following conditions are met:
The “petty offense” is the only CIMT the applicant has ever committed;
The sentence imposed for the offense was six months or less; and
The maximum possible sentence for the offense does not exceed one year. [8]
The petty offense exception does not apply to an applicant who has been convicted of or who admits to committing more than one CIMT even if only one of the CIMTs was committed during the statutory period. An applicant who has committed more than one petty offense of which only one is a CIMT may be eligible for the petty offense exception. [9]
Purely Political Offense Exception
This bar to GMC does not apply to a conviction for a CIMT occurring outside of the United States for a purely political offense committed abroad. [10]

B. Aggregate Sentence of Five Years or More

An applicant may not establish GMC if he or she has been convicted of two or more offenses during the statutory period for which the combined, imposed sentence was five years or more. [11] The underlying offenses must have been committed within the statutory period.
Purely Political Offense Exception
The GMC bar for having two or more convictions does not apply if the convictions and resulting sentence or imprisonment of five years or more occurred outside of the United States for purely political offenses committed abroad. [12]

C. Controlled Substance Violation

An applicant cannot establish GMC if he or she has been convicted of or admits to having violated any controlled substance-related federal or state law or regulation of the United States or law or regulation of any foreign country during the statutory period. [13] This bar to establishing GMC also applies to an admission to committing acts which constitute the essential elements of any controlled substance violation.
Exception for Single Offense of Simple Possession
The conditional bar to GMC for a controlled substance violation does not apply if the violation was for a single offense of simple possession of 30 grams or less of marijuana. [14]

D. Imprisonment for 180 Days or More

An applicant cannot establish GMC if he or she is or was imprisoned for an aggregate period of 180 days or more during the statutory period based on a conviction. [15]This bar to GMC does not apply if the conviction resulted only in a sentence to a period of probation with no sentence of incarceration for 180 days or more. This bar applies regardless of the reason for the conviction. For example, this bar still applies if the term of imprisonment results from a violation of probation rather than from the original sentence. [16]
The commission of the offense resulting in conviction and confinement does not need to have occurred during the statutory period for this bar to apply. Only the confinement needs to be within the statutory period for the applicant to be precluded from establishing GMC.
Purely Political Offense Exception
This bar to GMC does not apply to a conviction and resulting confinement of 180 days or more occurring outside of the United States for a purely political offense committed abroad. [17]

E. False Testimony

1. False Testimony in Statutory Period
An applicant who gives false testimony to obtain any immigration benefit during the statutory period cannot establish GMC. [18] False testimony occurs when the applicant deliberately intends to deceive the U.S. Government while under oath in order to obtain an immigration benefit. This holds true regardless of whether the information provided in the false testimony would have impacted the applicant’s eligibility. The statute does not require that the benefit be obtained, only that the false testimony is given in an attempt to obtain the benefit. [19]
While the most common occurrence of false testimony is failure to disclose a criminal or other adverse record, false testimony can occur in other areas. False testimony may include, but is not limited to, facts about lawful admission, absences, residence, marital status or infidelity, employment, organizational membership, or tax filing information.
2. Three Elements of False Testimony
There are three elements of false testimony established by the Supreme Court that must exist for a naturalization application to be denied on false testimony grounds:[20]
Oral Statements
The “testimony” must be oral. False statements in a written application and falsified documents, whether or not under oath, do not constitute “testimony.” [21] However, false information provided orally under oath to an officer in a question-and-answer statement relating to a written application is “testimony.” [22] The oral statement must also be an affirmative misrepresentation. The Supreme Court makes it clear that there is no “false testimony” if facts are merely concealed, to include incomplete but otherwise truthful answers.
Oath
The oral statement must be made under oath in order to constitute false testimony. [23] Oral statements to officers that are not under oath do not constitute false testimony. 
Subjective Intent to Obtain an Immigration Benefit
The applicant must be providing the false testimony in order to obtain an immigration benefit. False testimony for any other reason does not preclude the applicant from establishing GMC.

F. Prostitution

An applicant may not establish GMC if he or she has engaged in prostitution, procured or attempted to procure or to import prostitutes or persons for the purpose of prostitution, or received proceeds from prostitution during the statutory period. [24] The Board of Immigration Appeals (BIA) has held that to “engage in” prostitution, one must have engaged in a regular pattern of behavior or conduct. [25] The BIA has also determined that a single act of soliciting prostitution on one’s own behalf is not the same as procurement. [26]

G. Smuggling of a Person

An applicant is prohibited from establishing GMC if he or she is or was involved in the smuggling of a person or persons by encouraging, inducing, assisting, abetting or aiding any alien to enter or try to enter the United States in violation of law during the statutory period. [27]
Family Reunification Exception
This bar to GMC does not apply in certain cases where the applicant was involved in the smuggling of his or her spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law before May 5, 1988. [28]

H. Polygamy

An applicant who has practiced or is practicing polygamy during the statutory period is precluded from establishing GMC. [29] Polygamy is the custom of having more than one spouse at the same time. [30] The officer should review documents in the file and any documents the applicant brings to the interview for information about the applicant’s marital history, to include any visa petitions or applications, marriage and divorce certificates, and birth certificates of children.

I. Gambling

An applicant who has been convicted of committing two or more gambling offenses or who derives his or her income principally from illegal gambling activities during the statutory period is precluded from establishing GMC. [31] The gambling offenses must have been committed within the statutory period.

J. Habitual Drunkard

An applicant who is or was a habitual drunkard during the statutory period is precluded from establishing GMC. [32] Certain documents may reveal habitual drunkenness, to include divorce decrees, employment records, and arrest records. In addition, termination of employment, unexplained periods of unemployment, and arrests or multiple convictions for public intoxication or driving under the influence may be indicators that the applicant is or was a habitual drunkard.

K. Failure to Support Dependents

An applicant who willfully failed or refused to support his or her dependents during the statutory period cannot establish GMC unless the applicant establishes extenuating circumstances. [33] The GMC determination for failure to support dependents includes consideration of whether the applicant has complied with his or her child support obligations abroad in cases where it is relevant. [34]
Even if there is no court-ordered child support, the courts have concluded that parents have a moral and legal obligation to provide support for their minor children, and a willful failure to provide such support demonstrates that the individual lacks GMC. [35]
An applicant who fails to support dependents may lack GMC if he or she:
Deserts a minor child; [36] 
Fails to pay any support; [37] or
Obviously pays an insufficient amount. [38]
If the applicant has not complied with court-ordered child support and is in arrears, the applicant must identify the length of time of non-payment and the circumstances for the non-payment. An officer should review all court records regarding child support, and non-payment if applicable, in order to determine whether the applicant established GMC. [39]
Extenuating Circumstances
If the applicant shows extenuating circumstances, a failure to support dependents should not adversely affect the GMC determination. [40]
The officer should consider the following circumstances:
An applicant’s unemployment and financial inability to pay the child support; [41] 
Cause of the unemployment and financial inability to support dependents;
Evidence of a good-faith effort to reasonably provide for the support of the child; [42] 
Whether the nonpayment was due to an honest but mistaken belief that the duty to support a minor child had terminated; [43] and
Whether the nonpayment was due to a miscalculation of the court-ordered arrears. [44]

L. Adultery

An applicant who has an extramarital affair during the statutory period that tended to destroy an existing marriage is precluded from establishing GMC. [45]
Extenuating Circumstances
If the applicant shows extenuating circumstances, an offense of adultery should not adversely affect the GMC determination. [46] Extenuating circumstances may include instances where the applicant divorced his or her spouse but later the divorce was deemed invalid or the applicant and the spouse mutually separated and they were unable to obtain a divorce. [47]

M. Unlawful Acts

An applicant who has committed, was convicted, or imprisoned for an unlawful act or acts during the GMC period may be found to lack GMC. [48] This provision may apply to cases where an offense is not specifically listed in the other relevant GMC provisions but rises to the level of preventing the applicant from establishing GMC.[49] This provision does not require the applicant to have been charged or convicted of the offense.
An “unlawful act” includes any act that is against the law, illegal or against moral or ethical standards of the community. The fact that an act is a crime makes any commission thereof an unlawful act. [50]
Considering Extenuating Circumstances for Unlawful Acts
If the applicant shows extenuating circumstances, the commission of an unlawful act [51] or acts should not adversely affect the GMC determination. [52] An extenuating circumstance must pertain to the unlawful act and must precede or be contemporaneous with the commission of the unlawful act. [53]
An officer may not consider conduct or equities (including evidence of reformation or rehabilitation) subsequent to the commission of the unlawful act as an extenuating circumstance. Consequences after the fact and future hardship are not considered extenuating circumstances. [54] If a jury or a court acquitted the applicant, he or she has not committed an unlawful act.
The factors considered in the determination are included in the denial notices in cases that result in an unfavorable determination.
Examples of Unlawful Acts
The following are examples of offenses that may be considered under the unlawful acts regulation. Each GMC determination is made on a case-by-case basis, to include determinations involving an “unlawful act” consideration.
1. Unlawful Voting and False Claim to U.S. Citizenship for Voting
An applicant may fail to show GMC if he or she engaged in unlawful voting or falsely claimed U.S. citizenship for voting. [55] In September 1996, Congress enacted legislation to address unlawful voting and false claims to U.S. citizenship for purposes of registering to vote or voting. [56]
A noncitizen who is convicted of unlawful voting may be fined, imprisoned up to one year, or both, and subject to removal. [57]
A noncitizen who is convicted of making a false claim to U.S. citizenship to register to vote or vote may be fined, imprisoned up to five years, or both, and subject to removal. [58]
The officer may request the applicant to provide a sworn statement regarding his or her testimony on illegal voting or false claim to citizenship for voting. The officer may also require an applicant to obtain any relevant evidence, such as the voter registration card, applicable voter registration form, and voting record from the relevant board of elections commission.
The table below serves as a quick reference guide on the effect on GMC determinations by unlawful voting or for false claims to U.S. citizenship. Further guidance is provided below.
Effect on GMC by Unlawful Voting or
False Claim to U.S. Citizenship in Statutory Period
Offense
Penalty
if Convicted
Effect on GMC
If Convicted
If Imprisoned
If Not Convicted
Unlawful Voting
May be fined or imprisoned up to 1 yr, 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 yrs or more
May bar GMC depending on totality of the circumstances, and on whether exceptions apply
False Claim to Citizenship
May be fined or imprisoned up to 5 yrs, or both
CIMT and will bar GMC (may be a felony)
Offenses without Convictions
An officer may find the applicant to lack GMC if the applicant was not convicted of unlawful voting or false claim to citizenship for voting. The officer should consider the totality of the circumstances and weigh all favorable and unfavorable factors of each case, to include whether the applicant qualifies for an exception.
An applicant may only have engaged in unlawful voting if his or her conduct was unlawful under the relevant federal, state, or local election law. The officer should consider the controlling statutes in cases involving potential unlawful voting offenses, because some local municipalities permit lawful permanent residents (LPRs) or other noncitizens to vote in municipal elections.
The officer does not need to focus on the underlying election law for false claims to U.S. citizenship. An applicant may be considered to have made a false claim to U.S. citizenship if the following conditions have been met on or after September 30, 1996.
The applicant actually falsely represented himself or herself as a U.S. citizen; and
The applicant made such misrepresentation in order to register to vote or for voting.
Convictions
A conviction for unlawful voting, by itself, generally should not bar an applicant from establishing GMC because the conviction is unlikely to be a CIMT. [59] On the other hand, making a false claim to U.S. citizenship in order to register to vote or to vote is a CIMT. An applicant who is convicted of a CIMT is generally precluded from establishing GMC.
A conviction for making a false claim to U.S. citizenship in order to register to vote or for voting is a felony and prevents an applicant from showing GMC unless an exception applies. [60]
Imprisonment
Unless an applicant qualifies for an exception, the applicant is barred from establishing GMC if:
The applicant was convicted and imprisoned for 180 days or more during the statutory period for unlawful voting or for making a false claim to U.S. citizenship;[61] or
The applicant has multiple convictions with an aggregate sentence of five years or more, which include conviction(s) for unlawful voting or making a false claim to U.S. citizenship. [62]
Exceptions
In 2000, Congress added exceptions for GMC determinations and removal of noncitizens for unlawful voting and false claims to U.S. citizenship. [63] The exceptions only apply to convictions that became final on or after October 30, 2000. [64]
An applicant qualifies for an exception if the following conditions are met:
The applicant’s natural or adoptive parents are or were U.S. citizens at the time of the violation; [65] 
The applicant permanently resided in the United States prior to reaching the age of 16 years; and
The applicant “reasonably believed” at the time of the violation that he or she was a U.S. citizen.
To assess whether the applicant “reasonably believed” that he or she was a U.S. citizen at the time of the violation, the officer must consider the totality of the circumstances in the case, weighing such factors as the length of time the applicant resided in the United States and the age when the applicant became an LPR.
2. Failure to File Tax Returns or Pay Taxes
An applicant who fails to file tax returns or pay his or her taxes may be precluded from establishing GMC. LPRs are generally taxed in the same way as U.S. citizens. This means that their worldwide income may be subject to U.S. tax and may need to be reported on their U.S. tax return. The income of LPRs is subject to the same graduated tax rates that apply to U.S. citizens. [66]
An applicant who did not originally file tax returns or did not pay the appropriate taxes may be able to establish GMC by submitting a letter from the tax authority indicating that:
The applicant has filed the appropriate forms and returns; and
The applicant has paid the required taxes, or has made arrangements for payment.
If the officer uncovers inconsistencies in facts submitted on the application for naturalization and material elements on the applicant’s tax return, such as marital status, number of children, and employment, the applicant may be precluded from establishing GMC due to an attempt to defraud the Internal Revenue Service (IRS) by avoiding taxes. [67]

Footnotes

1.
 
2.
See INA 101(f). See Chapter 1, Purpose and Background [12 USCIS-PM F.1].
 
3.
See Medina v. United States, 259 F.3d 220, 227 (4th Cir. 2001), quoting Matter of Danesh, 19 I&N Dec. 669, 670 (BIA 1988). See Matter of Perez-Contreras, 20 I&N Dec. 615, 618 (BIA 1992). See Matter of Flores, 17 I&N Dec. 225 (BIA 1980) (and cases cited therein).
 
4.
See Matter of Silva-Trevino, 24 I&N Dec. 687, 688, 706 (A.G. 2008).
 
5.
See Matter of Esfandiary, 16 I&N Dec. 659 (BIA 1979).
 
6.
See Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008).
 
9.
See Matter of Garcia-Hernandez, 23 I&N Dec. 590, 594-95 (BIA 2003).
 
10.
See Chapter 2, Adjudicative Factors, Section F, “Purely Political Offense” Exception [12 USCIS-PM F.2(F)].
 
12.
See Chapter 2, Adjudicative Factors, Section F, “Purely Political Offense” Exception [12 USCIS-PM F.2(F)].
 
13.
See INA 101(f)(3) and INA 212(a)(2)(A)(i)(II). See 8 CFR 316.10(b)(2)(iii) and 8 CFR 316.10(b)(2)(iv). See Chapter 2, Adjudicative Factors, Section E, Admission of Certain Criminal Acts [12 USCIS-PM F.2(E)].
 
14.
See INA 101(f)(3). See 8 CFR 316.10(b)(2)(iii). While an offense for simple possession of 30 grams or less of marijuana is excluded from INA 101(f)(3), it may nonetheless affect GMC under the residual clause of the GMC definition. See INA 101(f). See 8 CFR 316.10(a)(2).
 
16.
See Matter of Piroglu, 17 I&N Dec. 578 (BIA 1980).
 
17.
See Chapter 2, Adjudicative Factors, Section F, “Purely Political Offense” Exception [12 USCIS-PM F.2(F)].
 
19.
See Matter of R-S-J-, 22 I&N Dec. 863 (BIA 1999).
 
20.
See Kungys v. United States, 485 U.S. 759, 780-81 (1988).
 
21.
See Matter of L-D-E, 8 I&N Dec. 399 (BIA 1959).
 
22.
See Matter of Ngan, 10 I&N Dec. 725 (BIA 1964). See Matter of G-L-T-, 8 I&N Dec. 403 (BIA 1959).
 
23.
See Matter of G-, 6 I&N Dec. 208 (BIA 1954).
 
25.
See Matter of T, 6 I&N Dec. 474 (BIA 1955).
 
26.
See Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008).
 
28.
See INA 212(a)(6)(E)(ii). See Section 301 of the Immigration Act of 1990 (IMMACT90), Pub. L. 101-649, 104 Stat. 4978, 5029 (November 29, 1990).
 
30.
Polygamy is not the same as bigamy. Bigamy is the crime of marrying a person while being legally married to someone else. An applicant who has committed bigamy may be susceptible to a denial under the “unlawful acts” provision.
 
34.
See Convention on the International Recovery of Child Support and Other Forms of Family Maintenance.
 
35.
See Brukiewicz v. Savoretti, 211 F.2d 541 (5th Cir. 1954). See Petition of Perdiak, 162 F.Supp. 76 (S.D. Cal. 1958). See Petition of Dobric, 189 F.Supp. 638 (D. Minn. 1960). See In re Malaszenko, 204 F.Supp. 744 (D.N.J. 1962) (and cases cited). See Petition of Dobric, 189 F.Supp. 638 (D. Minn. 1960). See In re Huymaier, 345 F.Supp. 339 (E.D. Pa. 1972). See In re Valad, 465 F.Supp. 120 (E.D. Va. 1979).
 
36.
See U.S. v. Harrison, 180 F.2d 981 (9th Cir. 1950).
 
37.
See In re Malaszenko, 204 F.Supp. 744 (D. N.J. 1962). See In re Mogus, 73 F.Supp. 150 (W.D. Pa. 1947).
 
38.
See In re Halas, 274 F.Supp. 604 (E.D. Pa. 1967). See Petition of Dobric, 189 F.Supp. 638 (D. Minn. 1960).
 
39.
 
40.
See Chapter 2, Adjudicative Factors, Section G, Extenuating Circumstances [12 USCIS-PM F.2(G)].
 
41.
See In re Huymaier, 345 F.Supp. 339 (E.D. Pa. 1972).
 
42.
See Petition of Perdiak, 162 F.Supp. 76 (S.D. Cal. 1958).
 
43.
See In re Valad, 465 F.Supp. 120 (E.D. Va. 1979).
 
44.
See Etape v. Napolitano, 664 F.Supp.2d 498, 517 (D. Md. 2009).
 
46.
See Chapter 2, Adjudicative Factors, Section G, Extenuating Circumstances [12 USCIS-PM F.2(G)].
 
47.
See In re Petition of Schroers, 336 F.Supp. 1348 (S.D.N.Y. 1971). See In re Petition of Russo, 259 F.Supp. 230 (S.D.N.Y. 1966). See Dickhoff v. Shaughnessy, 142 F.Supp. 535 (S.D.N.Y. 1956).
 
49.
See 8 CFR 316.10(b)(1) and 8 CFR 316.10(b)(2) (other relevant GMC regulations).
 
50.
See U.S. v. Lekarczyk, 354 F.Supp.2d 883 (W.D. Wis. 2005). See Jean-Baptiste v. United States395 F.3d 1190 (11th Cir.2005). Collateral estoppel bars a defendant who is convicted in a criminal trial from contesting this conviction in a subsequent civil action with respect to issues necessarily decided in the criminal trial. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 157 (1963).
 
52.
See INA 101(f). See 8 CFR 316.10(b)(3)(iii). See Chapter 2, Adjudicative Factors, Section G, Extenuating Circumstances [12 USCIS-PM F.2(G)].
 
53.
See Jean-Baptiste v. United States395 F.3d 1190 (11th Cir. 2005) citing Rico v. INS, 262 F.Supp.2d 6 (E.D.N.Y. 2003).
 
54.
See Jean-Baptiste v. United States395 F.3d 1190 (11th Cir. 2005).
 
55.
See 18 U.S.C. 611 (voting by aliens). See 18 U.S.C. 1015(f) (false claim to U.S. citizenship).
 
56.
See INA 212(a)(10)(D)(i) and INA 237(a)(6)(A) (addressing unlawful voting). See INA 212(a)(6)(C)(ii)(I) and INA 237(a)(3)(D)(i) (addressing false claims to U.S. citizenship). These provisions were added by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. 104-208 (September 30, 1996).
 
57.
See 18 U.S.C. 611 (voting by aliens).
 
58.
See 18 U.S.C. 1015(f) (false claim to U.S. citizenship).
 
59.
See 18 U.S.C. 611 (voting by noncitizens). See 8 U.S.C. 1015(f) (false claim to U.S. citizenship).
 
60.
 
61.
See Chapter 5 Conditional Bars for Acts in Statutory Period, Section D, Imprisonment for 180 Days or More [12 USCIS-PM F.5(D)]. See INA 101(f)(7).
 
62.
See Chapter 5 Conditional Bars for Acts in Statutory Period, Section B, Aggregate Sentence of Five Years or More [12 USCIS-PM F.5(B)]. See INA 101(f)(3).
 
63.
See INA 101(f). See INA 212(a)(10)(D)(ii) and INA 237(a)(6)(B) (unlawful voting exception). See INA 212(a)(6)(C)(ii)(II) and INA 237(a)(3)(D)(i) (false claims to U.S. citizenship exception). These provisions were added by the Child Citizenship Act of 2000 (CCA), Pub. L. 106-395 (October 30, 2000).
 
64.
See Section 201(d)(3) of the CCA, Pub. L. 106-395, 114 Stat. 1631, 1636 (October 30, 2000).
 
65.
As a matter of policy, USCIS has determined that the applicant’s parents had to be U.S. citizens at the time of the illegal voting or false claim to U.S. citizenship in order to meet the first prong of this exception.
 
67.
The following involve defrauding the United States by avoiding taxes (a CIMT). See Matter of M , 8 I&N Dec. 535 (BIA 1960). See Matter of E , 9 I&N Dec. 421 (BIA 1961). See Carty v. Ashcroft, 395 F.3d 1081 (9th Cir. 2005) (state failure to pay taxes; evasion is same as fraud). See Wittgenstein v. INS, 124 F.3d 1244 (10th Cir. 1997) (state crime).
 

Appendices

Updates

Technical Update –Certified Court Dispositions

September 30, 2013
This technical update adds language addressing existing policy on circumstances where an applicant is required to provide a certified court disposition.

POLICY ALERT –Comprehensive Citizenship and Naturalization Policy Guidance

January 07, 2013
USCIS is issuing updated and comprehensive citizenship and naturalization policy guidance in the new USCIS Policy Manual.