Crimes of Moral Turpitude

 

(A)  Good Moral Character Bar.  An applicant for naturalization as a United States citizen must have been a person of “Good Moral Character” during the period for which Good Moral Character must be shown immediately preceding the date of the filing of the application and continuing up to the time of admission to citizenship by administration of the oath of allegiance.[312]  “Good Moral Character” itself has no statutory definition.  Instead, the INA defines certain classes of persons who are ineligible to show “Good Moral Character.”  At least one court had held that the underlying facts can be examined to determine whether a criminal offense should be considered a bar to Good Moral Character.[313]  A naturalization applicant shall be found to lack Good Moral Character if s/he has been convicted of an aggravated felony.[314]  This bar is permanent for any aggravated felony conviction occurring after November 29, 1990.[315]  See generally § 3.14, supra.

The immigration authorities can also take into account the applicant’s conduct and acts preceding the statutory period during which GMC must be shown when deciding whether to exercise their discretion to grant naturalization,[316] but they may not deny the naturalization application solely on the basis of offenses committed before the beginning of the statutory time period for which Good Moral Character must be shown.[317]

 

A person cannot be granted naturalization while s/he is still on probation or parole in a criminal case.  “An applicant who has been on probation, parole, or received a suspended sentence during all or part of the statutory period is not thereby precluded from establishing good moral character.  However, such probation, parole or suspended sentence may be considered by the Service in determining good moral character.  No application will be approved until after the probation, parole, or suspended sentence has been completed.”[318]  The applicant can therefore apply while on probation or parole, so long as it has ended by the time of the naturalization interview.  However, the immigration authorities sometimes consider periods in which a noncitizen is on probation or parole following commission of a barring offense as not counting toward a required period of Good Moral Character, although the statute does not provide for this, and this practice can be challenged in immigration or federal court.[319]  

 

Unless the applicant falls within one of the categories below, s/he must show five years Good Moral Character:[320]

 

·            Spouses of U.S. citizens can naturalize after three years lawful permanent residence (upon showing three years Good Moral Character), if married to the citizen during the entire three years.[321]

 

·            Spouses of U.S. citizens stationed abroad in the employ of the U.S. government and certain other designated organizations may naturalize after showing GMC for a reasonable period of time.[322]

 

·            An applicant with three years total honorable U.S. military service is eligible for naturalization.  No particular period of GMC is required.[323]  Even a deportable applicant can be naturalized if s/he is still in the military.

 

·            Veterans of U.S. armed forces during certain armed conflicts (which include World War II and the Korean, Vietnam, and Gulf Wars), or persons who were in the armed services for three years at any time, and who if separated from the armed forces, were honorably discharged, are permitted to naturalize.[324]  The period of GMC[325] is a “reasonable period of time.”  If the person enlisted within the United States, the person is not even required to be a permanent resident, and a deportable applicant can be naturalized.

 

·            A child born outside the U.S. to at least one U.S. citizen parent may be naturalized.[326]  Good Moral Character is presumed if the child is under 18 years of age.  The child must not be otherwise barred by INA § 313 (subversives), § 314 (deserters), § 315 (claiming exemption from military service), or § 318 (deportees).  Depending on the circumstances, the child also might have inherited U.S. citizenship at birth.  See § 3.17, supra.

 

Naturalization of certain classes of persons is barred by law.[327]

[312] INA § 316(a)(3), 8 U.S.C. § 1427(a)(3); 8 C.F.R. § 316.10.  An applicant for naturalization must also have been “lawfully admitted for permanent residence . . . .”  INA § 316(a), 8 U.S.C. § 1427(a).  S/he must have “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.”  INA § 101(a)(20), 8 U.S.C. § 1101(a)(20).  A noncitizen who is naturalized while lacking a lawful admission to permanent residence is subject to denaturalization at any time.  Fedorenko v. United States, 449 U.S. 490 (1981).  If an applicant was in fact by reason of a criminal conviction or criminal conduct, including crimes of moral turpitude that rendered the noncitizen inadmissible, not eligible to be admitted to lawful permanent resident status when s/he was admitted, the naturalization application may be denied and proceedings instituted to revoke the lawful permanent resident status.  It has been held, however, that the failure to disclose an arrest for offenses that did not involve moral turpitude does not warrant denaturalization for suppression of facts that would have resulted in the denial of citizenship.  Chaunt v. United States, 364 U.S. 350, 81 S.Ct. 147 (1960). 

[313] Jalloh v. Dept. of Homeland Security, No. Civ.A.04-11403-DPW (D.Mass. Mar. 11, 2005) (unpublished) (assault and battery with a dangerous weapon conviction held not to be a crime involving moral turpitude for purposes of finding good moral character for naturalization purposes where, examining the underlying facts of the case, it did not appear that the applicant had any evil intent in committing the offense; 8 C.F.R. § 316.10(b)(3)(iii) allows the court to examine the underlying facts behind a conviction to determine whether a naturalization applicant has “establishe[d] extenuating circumstances” that show that applicant does not lack good moral character).

[314] See, e.g., O’Sullivan v. U.S. Citizenship & Immigration Serv., 453 F.3d 809 (7th Cir. Jul. 6, 2006) (aggravated felony bar applies to wartime veterans).

[315] Puello v. BCIS, 511 F.3d 324 (2d Cir. Dec. 20, 2007) (for purposes of applying the permanent bar to good moral character for conviction of an aggravated felony, under INA § 101(f), the date of conviction is the date of sentencing or the date the judgment of conviction was filed with Clerk of Court, rather than on date the guilty plea was entered).

[316] INA § 316(e), 8 U.S.C. § 1427(e); 8 C.F.R § 316.10(a)(2).

[317] The agency must weigh positive factors against negative ones. Santamaria-Ames v. INS, 104 F.3d 1127 (9th Cir. 1996); Torres-Guzman v. INS, 804 F.2d 531 (9th Cir. 1986).  

[318] 8 C.F.R § 316.10(c)(1).

[319] See, e.g., In re McNeil, 14 F. Supp. 394 (N.D. Cal. 1936) (precluded until termination of parole); Petition of Sperduti, 81 F. Supp. 833 (W.D. Pa. 1949) (not precluded by probation or parole).

[320] INA § 316(a), 8 U.S.C. § 1427(a).

[321] INA § 319(a), 8 U.S.C. § 1430(a).

[322] INA § 319(b), 8 U.S.C. § 1430(b).

[323] INA § 328, 8 U.S.C. § 1439.

[324] INA § § 328, 329, 8 U.S.C. § § 1439, 1440.

[325] O’Sullivan v. U.S. Citizenship & Immigration Serv., 453 F.3d 809 (7th Cir. Jul. 6, 2006) (wartime veterans are not excused from showing good moral character before naturalizing; CIS regulation setting forth a time period for which a wartime veteran must show good moral character was a valid exercise of delegated power); Nolan v. Holmes, 334 F.3d 189, 201-202 (2d Cir. 2003) (applicants for naturalization under INA § 329, 8 U.S.C. § 1440 must, consistent with the government’s interpretation of the statute, demonstrate good moral character); Boatswain v. Gonzales, 414 F.3d 413 (2d Cir. June 30, 2005) (aggravated felony bar to showing good moral character applies to persons who have served in the U.S. military on active-duty status during wartime); Lopez v. Henley, 416 F.3d 455 (5th Cir. July 12, 2005) (federal conviction for attempting to possess a controlled substance barred applicant for naturalization from showing good moral character, despite active service in the United States military during the Vietnam War).

[326] INA § 322, 8 U.S.C. § 1433.

[327] INA § 315, 8 U.S.C. § 1426.  See N. Tooby & J. Rollin, Criminal Defense of Immigrants § 24.13(B) (4th Ed. 2007).