Criminal Defense of Immigrants

 

(A)  Statutory Bars.  The statutory bars to showing Good Moral Character are listed at INA § 101(f):[75] 

 

1.       a habitual drunkard;[76]

 

2.  a person described in:

 

a)       8 U.S.C. § 1182(a)(2)(D)(i)—someone who comes to the U.S. to engage in prostitution or has engaged in prostitution within 10 years of the date of application for a visa, entry, or adjustment of status;

 

b)       8 U.S.C. § 1182(a)(2)(D)(ii)—someone who procures or tries to or within 10 years of application imports persons for purposes of prostitution or receives any proceeds of prostitution;

 

c)       8 U.S.C. § 1182(a)(2)(D)(iii)—someone who is coming to the U.S. to engage in any other unlawful commercialized vice;

 

d)       8 U.S.C. § 1182(a)(6)(E)(i)—someone who knowingly aids another alien to enter the U.S. illegally, subject to the exception in (ii) and the waiver in (iii);

e)       8 U.S.C. § 1182(a)(10)(A)—someone who is coming to the U.S. to practice polygamy;

 

f)        8 U.S.C. § 1182(a)(2)(A)(i)—someone who has been convicted of or admits having committed              a crime involving moral turpitude, or attempt or conspiracy to do so;[77]

 

g)       8 U.S.C. § 1182(a)(2)(A)(ii)— someone who has been convicted of or admits having committed            a violation of or conspiracy or attempt to violate any state, federal, or foreign law relating to a controlled substance (as defined in 21 U.S.C. § x802), except for a first time simple possession offense of 30 grams or less of marijuana;

 

h)       8 U.S.C. § 1182(a)(2)(B)—someone who suffered multiple criminal convictions, i.e., two or more convictions, for which the aggregate sentences totaled five years or more;

 

i)         8 U.S.C. § 1182(a)(2)(C)(i)—someone whom a consular or INS officer “knows or has reason to believe is or has been an illicit trafficker in any such controlled substance or is or has been a knowing assister, abettor, conspirator, or colluder with others in the illicit trafficking in any such controlled substance[;]” or

 

j)        8 U.S.C. § 1182(a)(2)(C)(ii)—someone who is an immediate family member, of one whom the INS has “reason to believe” is or has been an illicit drug trafficker, who has financially benefited from the illegal activities within the last five years.

               

3.  a person whose income is derived principally from illegal gambling;

 

                4.  a person who has been convicted of two or more gambling offenses during such period;

 

                5.  a person who has given false testimony to obtain any benefits under this chapter (except for a person who made a false claim of U.S. citizenship, registers to vote or votes who at the time reasonably believed that they were a citizen, both his/her parents were citizens, and s/he resided in the country prior to the age of 16[78]);[79]

 

                6.  a person who has during such period been confined as a result of conviction to a penal institution for an aggregate period of 180 days or more, regardless when the offense was committed;[80] or

 

7.  a person who has been convicted after Nov. 29, 1990 of an aggravated felony.[81]

 

8.  a person who has been convicted at any time of murder.[82]

 

This list is not exclusive.[83]  Homosexuality will not in and of itself preclude a finding of Good Moral Character.[84]  The DHS takes the view, however, that homosexual conduct involving minors, the threat or use of force, the giving or taking of money or other valuables, and activity that was solicited or occurred in a public place, or was violative of marital vows, will bar a finding of Good Moral Character.[85]

[75] INA § 101(f), 8 U.S.C. § 1101(f).  Seeking admission after removal is no longer listed as a bar to Good Moral Character. Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (Jan. 5, 2006) (amending INA § 101(f)(3), 8 U.S.C. § 1101(f)(3)).

[76] If the government argues that several convictions of driving under the influence of alcohol mean the person is an habitual drunkard, and therefore statutorily barred from showing Good Moral Character for purposes of naturalization, counsel can: (1) obtain a report from a private psychiatrist with an independent evaluation of the question, (2) send the client to AA meetings, (c) obtain a certificate of completion from the program, and (4) argue that having a dependent personality does not make a person an alcoholic.

[77] Subject to qualifying for the petty offense, youthful offender, or political offense exceptions.  See § § 20.29-20.31, infra.

[78] This exception was added by the Child Citizenship Act of 2000, § 201(a)(1), Pub. L. No. 106-649, 104 Stat. 4978, and is effective for any applications pending on or after September 30, 1996.

[79] Aboud v. INS, 876 F. Supp. 938 (D. Ohio 1994) (false testimony even if immaterial is a statutory bar to naturalization under INA § 101(f)(6), 8 U.S.C. § 1101(f)(6)).  But see Plewa v. INS, 77 F.Supp.2d 905 (N.D. Ill. 1999) (court reversed denial of naturalization for lack of Good Moral Character where person had failed to list arrest because of erroneous advice by an experienced immigration counselor).

[80] INA § 101(f)(7), 8 U.S.C. § 1101(f)(7).  See § 15.6(D), infra.

[81] See § 15.6(C), infra.

[82] Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, § 306(a)(7),  Pub. L. No. 102-232, 105 Stat. 1733 (Dec. 12, 1991).  See also 8 C.F.R. § 316.10(b)(1)(i); Castiglia v. INS, 108 F.3d 1101 (9th Cir. 1997).

[83] INA § 101(f), 8 U.S.C. § 1101(f).  See, e.g., Nemetz v. INS, 647 F.2d 432 (4th Cir. 1981) (conviction under Virginia law making consensual sodomy a crime would not bar naturalization); Matter of Turcotte, 12 I. & N. Dec. 206 (BIA 1967).  See also Banks McDowell, The Usefulness of “Good Moral Character,” 33 Washburn L.J. 323, 325 (1994), discussing the use of “Good Moral Character” in the context of lawyering.  The Ninth Circuit has held that a Good Moral Character determination is subject to judicial review only when it is based upon one of the statutory exclusions in INA § 101(f), 8 U.S.C. § 1101(f).  Moran v. Ashcroft, 395 F.3d 1089, 1091 (9th Cir. 2005).

[84] INS Interpretations § 316.1(f)(7); see Nemetz v. INS, 647 F.2d 432 (4th Cir. 1981)(Virginia conviction for consensual sodomy would not bar naturalization); but see Matter of Longstaff, 716 F.2d 1439 (5th Cir. 1983) (court denied naturalization based on finding that the applicant was not lawfully admitted for permanent residency because he was a homosexual at the time of admission).

[85] INS Interpretations § 316.1(f)(7); AILA, 1996-1997 immigration and nationality law handbook 547.