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A S S O C I A T I O N

Complex Issues in Naturalization

Immigration Law Section

Saturday, May 21, 2011 8:30 AM - 12:15 PM Los Angeles County Bar Association 3.5 hrs CLE credit

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Table of Contents Residence and Presence Requirements ........................................................... 1 Good Moral Character and Statutory Bars to Eligibility .............................. 32 Handouts for Applicants ............................................................................. 105

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These materials are from Chapters 4, 5, and 7 of the 11th Edition of the ILRC’s manual entitled, Naturalization and U.S. Citizenship: The Essential Legal Guide RESIDENCE AND PRESENCE REQUIREMENTS (from Chapter 5) § 5.1 Introduction In addition to maintaining lawful permanent resident status, the naturalization applicant must meet four residence and presence requirements to qualify for naturalization. These are: 1. Five Years of Continuous Residence: An applicant must have resided continuously in the U.S. as a lawful permanent resident for the last five years immediately prior to applying for naturalization.1 For some applicants married to U.S. citizens, the continuous residence period is three years.2 2. Three Months of Local Residence: The applicant must have resided in the state or CIS district where her application is filed for the three months immediately prior to applying for naturalization.3 3. Continuous Residence after Application: The applicant must continuously reside in the U.S. from the date of filing the application until she is admitted to citizenship.4 4. Physical Presence: The applicant must have been physically present in the U.S. for at least half of the five-year residence period immediately prior to submitting the application,5 (or half of the three-year period if the applicant is married to a U.S. citizen).6 Each of these four requirements and their exceptions are discussed in greater detail in the sections below. For the purpose of all four of these naturalization residence requirements, the term “United States,” means the United States, Puerto Rico, Guam, and the Virgin Islands of the United States, unless an exception to this definition is noted.7

IMPORTANT NOTE: The Immigration and Naturalization Service (INS) was for many years the main federal government agency that administered US immigration law. However, effective 1

INA § 316(a)(1). INA § 319 and Chapter 7-5 of this manual. 3 INA § 316(a)(1). 4 INA § 316(a)(2). 5 INA § 316(a)(1). 6 INA § 319. 7 INA § 101(a)(38). 2

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March 1, 2003, Congress dissolved the INS, and all of its functions were assumed by the newly created Department of Homeland Security (DHS). Immigration laws are now administered and enforced by three separate divisions within the DHS: the U.S. Bureau of Customs and Border Protection (CBP), the U.S. Bureau of Citizenship and Immigration Services (CIS), and the U.S. Bureau of Immigration and Customs Enforcement (ICE). The CBP’s main responsibility is apprehending aliens attempting to enter into the U.S. illegally, and, especially, preventing terrorists from entering the U.S. The ICE’s mission includes managing investigations of document, identity, visa, and immigration fraud; investigating immigration violations and migrant smuggling, detaining, prosecuting, and removing undocumented aliens. The CIS’s mission is the adjudication of all petitions previously adjudicated by the INS, including naturalization and citizenship applications.

§ 5.2 First Residence Requirement: Five Years of Continuous Residence This requirement has three important parts: 1) First, the five-year period includes the five years counting backwards from the date the applicant files for naturalization.8 This means that the CIS is not concerned with breaks in the applicant’s U.S. residence before the five-year period for purposes of naturalization. Yet, the problems associated with abandonment of residence can arise due to absences from the U.S. no matter how long ago the absence occurred.9 Example: Helena became a lawful permanent resident in 1988. She made two trips to visit family and friends in Poland—once in 1989, and again in 2008. Helena applied for naturalization in 2009. To determine if Helena disrupted her continuous residence by going to Poland, the CIS will not look at her trip in 1989 because it was more than five years before she applied for naturalization. However, the CIS will look at how her trip in 2008 affected her continuous residence, because it was within the five years immediately prior to filing the naturalization application. 2) Next, the term residence is defined by the CIS as a person’s “principal dwelling place.”10 Therefore, if an applicant owns a house or rents an apartment in the U.S., but spends most of her time living in an apartment or house in another country, the CIS may find that she does not reside in the U.S.

8

INA § 316(a)(1). See Chapter 4, § 4.8 of this manual. 10 INA § 101(a)(33). 9

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Example: George became a lawful permanent resident in 1992. He now wants to apply for naturalization. Since 1992, George has worked in New York City, where he lives in an apartment that he rents. Each summer, George spends two months at his childhood home in Russia where his parents still live. Even though George spends two months living at his childhood home in Russia, his principal dwelling place is his apartment in New York, where he lives ten months out of the year. Therefore, George principally resides in the U.S. An applicant who is a commuter alien does not meet the residence requirement for naturalization. A commuter alien is a lawful permanent resident who works in the U.S., but lives in a foreign contiguous territory,11 like Canada or Mexico. Since the commuter alien does not reside in the U.S., he will not qualify for naturalization until he actually takes up residence in the U.S. and resides continuously in the U.S. for five years. If an applicant claims to reside in more than one state, then the applicant’s residence, for purposes of residency, is determined by the location where the applicant files his or her annual federal income tax returns.12 3) Finally, the residence during the five-year period must be continuous. This means that if the applicant travels out of the country for certain periods of time, the CIS may find that she does not qualify for naturalization because she has broken her U.S. residence by leaving the country. The CIS calls this breaking the continuity of residence, or disrupting continuous residence13 (see § 5.4 below). Filing for Naturalization Three Months Early Lawful permanent residents can file their naturalization application three months before the five-year period is complete.14 There is a similar rule for people married to U.S. citizens 11

8 CFR § 316.5(b)(3). 8 CFR § 316.5(b)(4). 13 8 CFR § 316.5(c)(1)(i). 14 INA § 334(a). Please note that although the statute says one can file an application three months early, the regulations say 90 days. See INA § 334(a) and 8 CFR § 334.2(b). The CIS had established an interim procedure to provide relief under certain circumstances from the undue hardships caused when applicants prematurely filed naturalization applications. This procedure allowed people who filed too early for naturalization but were statutorily ineligible for naturalization at application date, to have their applications adjudicated without having to pay another filing fee and without having to start at the back of the line. Few, if any, applicants would still be able to benefit from this policy because most who could have qualified have already had their applications adjudicated. Yet, the requirements for this benefit were:  The naturalization application was filed on or before June 29, 1999;  The CIS determined that the application was unintentionally filed more than 90 days before the applicant met the continuous residence requirements or the applicant, in reliance on the instructions on the form, filed a N-400 seeking an age and residence-based exemption from the English language or civics requirements; and 12

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applying under the three-year residence requirement, which lets them apply three months prior to the end of the three years residence.15 If an applicant has been married to and living with a U.S. citizen for at least three years, and the U.S. citizen spouse has been a U.S. citizen for at least three years, the applicant can apply for naturalization three months before actually being eligible (i.e. after having lived in the U.S. for two years and nine months). Yet, it is important to note that is the CIS’ position that an applicant may not apply three months early if he or she has not already lived with the spouse for a full three years. For an illustration, compare the two situations below: Example: Earl Early, a lawful permanent resident since January 10, 2009 got married on July 13, 2009 to a U.S. citizen. Earl and his wife have been living together since they got married. Earl’s U.S. citizen spouse has been a citizen for ten years. According to the CIS, Earl can apply for citizenship on July 13, 2012, not three months before that time (April 13, 2012). Example: Tomas Temprano, a lawful permanent resident since January 10, 2008, has been married to a U.S. citizen since March 12, 2007. They have been living together since they got married. Tomas’s U.S citizen spouse has been a citizen for ten years. According to the CIS, Tomas will qualify for naturalization on January 10, 2011 and can apply for citizenship on October 10, 2010, three months before January 10, 2011—even though he will have been a lawful permanent residence for two years and nine months—because he has been living with and married to a U.S. citizen for three years. There is an exception to the requirement of “living with” the U.S. citizen spouse, for naturalization applicants who became permanent residents as the self-petitioning battered or abused spouses or children of U.S. citizens.16

§ 5.3 Exceptions to the Five Year Continuous Residence Requirement (Special Groups) Certain categories or special groups of people do not need to meet the five-year continuous residence requirement: On the date of the naturalization examination, the applicant had met the continuous residence requirement, or was eligible for the 55/15 and 50/20 residence based exemptions to § 312. If an applicant met these requirements, the CIS had the option of employing the interim procedures and permitting the applicant to file a new N-400, without a fee, at the time of the interview, and have such application processed out of chronological order. For more information on this interim procedure, please see Appendix 5-A, CIS, Immigration Services Division, Field Operations Policy Memorandum No. 54, “Interim Procedure to Remedy Prematurely Filed Naturalization Applications.” 15 INA § 334(a) and 8 CFR § 334.2(b). 16 INA § 319(a); see Yates Memorandum No. 89, Instructions Regarding the Expanded Meaning of Section 319(a), Oct. 15, 2002, available at http://www.uscis.gov/files/pressrelease/PolMem89.pdf. 

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   

Children of a U.S. Citizen Spouses of a U.S. Citizen Lawful Permanent Residents Serving in U.S. Armed Forces Filipino War Veterans

Please refer to Chapter 7-5 for more information about how people in these special groups meet this exception. In addition, there are four other groups of people with special rules for the five-year residence requirement: Refugee Rollback for Refugees and Asylees Refugees and asylees are also entitled to a special residence rule when applying for naturalization. Refugees are not eligible for lawful permanent resident status until they have been in the U.S. for a year. Asylees cannot apply for lawful permanent resident status until one year after their asylum applications are approved.17 Under rollback, a refugee can start counting her five years from the date she arrived in the United States.18 An asylee can start counting from the date one year before her application for lawful permanent residence was approved.19 It is important to note that often the date of adjustment annotated on the refugee or asylee’s green card reflects the rollback date. Of course no asylee or refugee can apply for naturalization unless he or she is first a lawful permanent resident. Example: Tran, from Vietnam, was admitted as a refugee to the U.S. in November 1991. He applied for lawful permanent residence in December 1992 and became a lawful permanent resident in 1993. Tran was eligible to naturalize five years from his entry date (November 1991) because the date he became a lawful permanent resident is “rolled back” to the date he entered the U.S. Thus, Tran has been eligible for naturalization since November 1996. Ana, from El Salvador, entered the U.S. without inspection in 1989. She applied for asylum and was granted asylum in 1993. She became a lawful permanent resident in 1995. Ana was eligible to naturalize in 1999 (four years later) under rollback because she could start counting her five years from the year before she was granted status as a lawful permanent resident. Many refugees and asylees are unaware of the refugee rollback provisions. Practitioners and advocates should make a point of publicizing this provision to refugee communities.

17

INA § 209(a). 8 CFR § 209.1(e). 19 8 CFR § 209.2(f). 18

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See § 5.8 of this chapter for another special exception for refugees and asylees. U.S. Nationals Non-citizen nationals who owe permanent allegiance to the U.S. may become U.S. citizens without meeting this residence requirement in the U.S. Instead, they can meet the fiveyear residence requirement by residing in an outlying possession of the U.S.20 Outlying possessions of the U.S. are American Samoa and Swains Island.21 A U.S. national must still fulfill the requirement of living in the state or CIS district where she files her application for at least three months prior to filing the application.22 Section 302 of Public law 94-241 allows certain inhabitants of the Commonwealth of the Northern Mariana Islands to opt for non-citizenship national status instead of status as a United States citizen.23 See § 5.8 for another special exception for U.S. Nationals and Chapter 7-5 for more information on U.S. Nationals. Seamen aboard Ships A lawful permanent resident who is NOT a member of the Armed Forces, but who has served aboard a U.S. vessel, is given an exception from the five-year requirement.24 His residence on board the ship is considered to be the same as residence in the U.S. if it was during the five years immediately before applying for naturalization. This exception also applies for the physical presence requirement (see § 5.8 below).25 Employees of Certain United States Incorporated Nonprofit Organizations Anyone who fulfills the following requirements will not have to demonstrate any continuous residence, physical presence requirements, nor any state or CIS district residence prior to applying for naturalization: 1. the person is employed by a bona fide U.S. incorporated nonprofit organization that is principally engaged in conducting abroad through communications media the

20

INA § 325, 8 CFR § 325.3(a), INA § 101(a)(22). INA § 101(a)(29). For a complete description of who can be non-citizen nationals, please see INA § 308. 22 8 CFR § 325.3(a) and § 5.6. Some practitioners argue that under INA § 325 the three-month residence is not required; instead the requirement is that the national must reside in a state for any period of time. 23 See “Memorandum from United States Department of State” copied in Appendix II, 74 Interpreter Releases 1307 (Aug. 19, 1997). 24 INA § 330 and 8 CFR § 330.1. 25 INA § 330. 21

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2. 3. 4. 5.

dissemination of information that significantly promotes U.S. interests abroad and that is recognized as such by the Attorney General; the person has been employed by the above-mentioned organization for a period of not less than five years after a lawful admission for permanent residence; the person must file his application for naturalization while so employed or within six months following the termination thereof; the person is in the U.S. at the time of naturalization; and the person declares before the Attorney General in good faith an intention to take up residence within the U.S. immediately upon termination of such employment.26

§ 5.4 Disrupting Continuous Residence Disrupting continuous residence means the applicant has failed to reside continuously in the U.S. because he has taken a trip abroad for a certain period of time.27

NOTE: Abandonment of Residence versus Disrupting Continuous Residence. Disrupting continuous residence is NOT the same thing as abandonment of residence (described in Chapter 4 above). Abandonment of residence affects the applicant’s lawful permanent resident status and may trigger removal from the U.S. The CIS looks primarily at the applicant’s intent in traveling abroad, and the length of the trip is important, but not the only critical aspect of the trip. In contrast, disrupting continuous residence only affects the applicant’s eligibility for naturalization, and will not make the applicant removable. The CIS does not always consider the applicant’s intent in traveling abroad, and the amount of time the trip lasted often does determine whether or not the applicant has disrupted her residence. Disrupting continuous residence does not jeopardize the applicant’s lawful permanent resident status, but it does mean that the applicant will have to re-establish his or her continuous permanent residence before qualifying for naturalization.28 An applicant could be found to have abandoned her residence and disrupted her continuous residence, or abandoned her residence without having disrupted her continuous residence, or disrupted her continuous residence without having abandoned her residence.

The CIS looks at three different time frames to determine if an applicant has disrupted the continuity of residence:

26

INA § 319(c). INA § 316(b) and 8 CFR §§ 316.5(c). 28 INA § 316(b). It is important to note that in 1993, 8 CFR § 316.5(c)(1) changed the term “abandonment for naturalization purposes” to “disruption of continuity of residence.” For more information on “abandonment of residence” when it is meant to indicate abandoning and losing one’s status as a lawful permanent resident, please see Chapter 4, § 4.8. 27

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1) Trips abroad for less than six months. If a person has left the U.S. for a trip lasting less than six months, disrupting continuous residence is not an issue.29 2) Trips abroad for more than six months but less than one year. For trips of this length, the CIS will presume that the applicant has disrupted the continuity of her residence UNLESS she can prove that she did not disrupt her residence.30 To prove that she did not disrupt her continuous residence, the applicant should provide evidence that she did not disrupt her residence and include as much of the following facts as possible:    

the applicant did not terminate her employment in the U.S. the applicant’s immediate family remained in the U.S. while she was abroad the applicant retained full access to her home in the U.S. the applicant did not find new employment while she was abroad.31

The types of documents that an applicant might use to show she did not disrupt her residence include: bank statements, tax returns, proof of insurance, car registration, rent receipts, house payments, membership in organizations, school records, and his or her children’s records. Although the CIS might not agree, the ILRC’s position is that an applicant should argue that the CIS must also consider the applicant’s intent in travelling abroad.32 An advocate should argue that the applicant did not intend to disrupt the continuity of her residence and her lack of intent should factor into the final decision on eligibility for naturalization.

NOTE: Some CIS offices usually will not find that an applicant disrupted her continuous residence based on an absence of six to twelve months, while in other offices the CIS often will find that an absence of six to twelve months did disrupt the applicant’s continuous residence.

Example: Sam Wong, a citizen of Hong Kong, was granted lawful permanent residence under the amnesty law in 1989. Sam is eligible to apply for naturalization. While Sam and Alex the Advocate, who is helping Sam apply for naturalization, were discussing the requirements for naturalization, Sam told Alex that on April 15, 2008, he left the U.S. to return to Hong Kong and did not return to the U.S. until December 20, 2008 (a total of eight months). Alex carefully reexplained the concept of disruption of continuous residence and the types of proof the CIS will look for to determine whether or not Sam disrupted his residence.

29

INA § 316(b) and 8 CFR § 316.5(c)(1), which discuss only absences lasting more than six months as relevant to disruption of continuous residence. 30 INA § 316(b) and 8 CFR § 316.5(c)(1)(i). 31 8 CFR § 316.5(c)(1)(i). 32 See Petition of Turner, 51 F.2d 1062 (S.D. Tex 1931) and INS Interpretations 316.1(b)(5).

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After discussing the topic together for some time, Sam came up with the following ideas for proof: a letter from Sam’s employer showing that Sam was given a leave of absence and did not quit his job; school records showing his children continued going to school in the U.S. while Sam was away; pay stubs showing his wife worked in the U.S. while he was away; a letter from the landlord and rent receipts showing that his family continued paying the rent for the apartment while Sam was away; and affidavits from people explaining that Sam’s visit to Hong Kong was to see his parents whom he had not seen for many years; and that the visit was indeed temporary in nature. If the CIS determines that Sam did disrupt his residence, then he would have to wait five more years after returning to the U.S. from Hong Kong before being eligible for naturalization. Thus, if he did disrupt his residence, Sam would be eligible for naturalization on December 20, 2013, five years after returning from Hong Kong.

PRACTICE TIP: If the CIS claims an applicant disrupted her continuous residence because of an absence of between six to twelve months long, an advocate must be able to work with her client to get the best evidence possible, and to take the time to discuss thoroughly with her the concept of disruption of the continuity of residence and what kinds of proof will be most helpful. It is often helpful to list the types of proof mentioned in 8 CFR § 316.5(c)(1)(i) and give your client concrete examples of them. A sample explanation of disruption of residence and how a client can prove she did not disrupt her residence by showing examples of the following: In order to qualify for naturalization, you must show you lived in the U.S. for five years as a permanent resident. The five years has to be continuous, that is without any big breaks, or absences. If you did have a long absence then the CIS calls this “disrupting or breaking your continuous residence.” If the CIS believes that you have broken or disrupted your residence, then you will lose your case. If you lose, you might be able to re-apply later. But the CIS may also find that you have broken your residence in such a way that you have lost your permanent residence status (i.e., your green card).33 The rule is that if you never left the U.S. for more than six months at a time, then you never broke your residence. If you left for more than one year, then you will automatically lose your naturalization case unless you fall into an exception to the

33

If your client might have abandoned her residence and risks losing her green card, you should also explain this situation to her. For more information on the topic, please see Chapter 4, § 4.8. This is very important because if she did abandon her residence, she could be put in removal proceedings instead of gaining U.S. citizenship.

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rule. If you were gone for more than six months, but less than one year, we will have to show the CIS that you didn’t really break your residence.34 This is a requirement because the CIS wants people to become U.S. citizens only if they have been living in the U.S. during the past five years. The CIS thinks this will give people more time to learn English and U.S. history and government, as well as show they can follow the laws in the U.S. Additionally, the CIS thinks this requirement will make it so people who naturalize will be more likely to become part of the U.S. culture. You and I may not necessarily agree that it’s good to have this requirement, but it is here and we have to work with it. We will have to work together to show that you did not break your residence. What we must do is try to show the CIS that your absence was only temporary, that you always intended to return to the U.S., and that you kept ties with the U.S. Specifically, for example, we could show the CIS that you didn’t permanently stop the job you had in the U.S. while you were away. Instead, maybe you had an agreement with your boss that she would keep it open for you. Also, we could try to show that while you were gone, your family stayed in the U.S., and that you did not work while you were gone. It would be helpful if we could show the CIS that you could return at any time to the U.S., and you kept your same apartment or house while you were away. We do not need to show all these things, but the more we can show, the better. The major concerns are: your job, your family, and your house or apartment, and anything else showing you kept roots here and were abroad temporarily. Do you have any questions or anything to add? Now let’s go over these things one by one and together we can come up with ideas of how to prove them. Also, an applicant whose trip abroad falls within this time frame may qualify for one of the exceptions described below in § 5.5.

NOTE: If an applicant disrupted continuous residence because of an absence lasting between six months to one year, he will need to wait five years before he can re-apply for naturalization.

34

At this point in time, the advocate should draw a chart of the possibilities for the client. The chart could be something like this: 1. Gone for less than six months, no disruption issue. 2. Gone for six months or more but less than one year, you'll have to prove you didn't disrupt your residence. 3. Gone for one year or more, you can't qualify for naturalization.

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3) Trips abroad for one year or more. Trips of this length will always disrupt the continuity of residence (unless the applicant qualifies for an exception—see § 5.5 below). Unlike with trips lasting between six months and one year, in this case, the CIS will not consider where the applicant worked, where her family remained, or whether she had full access to her home for absences of one year or longer. Remember that for this requirement, the CIS is only concerned about the portion of the absence that falls within the five-year period immediately before the applicant applies for naturalization. Example: Thorsten became a lawful permanent resident in 1985. He filed his naturalization application on September 15, 2009. Therefore, he must show five years of continuous residence from September 15, 2004 to September 15, 2009. Thorsten went to Germany to take care of his sick mother. (Although he only intended to be gone for a few months until his mother recovered, the illness lasted longer and was more serious than he expected.) He was absent from the U.S. from July 10, 2003 to November 3, 2004. Although Thorsten was absent for well over one year, he did not disrupt his continuous residence because the CIS only looks at his absence that dates back to September 15, 2004. Since he returned to the U.S. less than two months after this date, his continuous residence was still intact because he did not fall under the one year disruption of residence rule or the six to twelve month disruption rule explained above. Thus, he was eligible for filing on September 15, 2009. (Hopefully, the CIS will find that there was no abandonment of residence either, since Thorsten’s intent was to be gone only for a few months, but his mother’s illness forced him to prolong his stay).

NOTE: A person who has disrupted continuous residence by an absence of more than one year will NOT have to establish another full five years of continuous residence in order to qualify for naturalization. The CIS permits a person to be absent for up to 364 days out of the year without automatically breaking the continuity of residence. Therefore, a person who has been a lawful permanent resident for at least five years, but who disrupted her continuous residence during the five-year period because she was absent for one year or longer during that period, only has to wait four years and one day after the date she returns to the U.S.35

In contrast, the CIS will require a person who has been a lawful permanent resident for at least five years, but who the CIS has found to have disrupted her continuous residence because of an absence of between six months and one year, to start counting her five years all over again as of the date she returned to the U.S. from the disrupting trip. Example: Marta was lawfully admitted for permanent residence in May 1996. Marta wants to apply for naturalization. In talking about the requirements for 35

8 CFR § 316.5(c)(1)(ii).

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naturalization with her advocate, Marta states that she took a trip to Chile, leaving on February 15, 2006 and returning to the U.S. on May 3, 2007. Because Marta was gone from the U.S. for more than a year at one time, she will be found to have disrupted her continuous residence. Thus, Marta must wait four years and a day from the date she returned from her trip abroad before applying for naturalization. So, Marta cannot apply for naturalization until May 4, 2011. Note that Marta might have issues with abandonment of residence, which is different from disruption of residence, as she was gone for a significant amount of time. This special rule also applies to applicants who have a three-year residence requirement. If the applicant has been a permanent resident for at least three years, but has disrupted continuous residence because she was absent for one year or longer, she may file her naturalization application two years plus one day after she returns to the U.S. from a trip that disrupted continuous residence.36 Example: Laura Huang has been a permanent resident since September 17, 1997. She has been married to a U.S. citizen since that time. Laura took a trip to visit her ill grandfather in China from December 12, 2008 through January 3, 2010. Laura and her lawyer determine that although she did not abandon her permanent residence during her stay in China, she did disrupt her continuous residence because she was absent from the U.S. for nearly 13 months. Under the rules, Laura must start counting her continuous residence from the date she returned to the U.S.—January 3, 2010. However, because she is married to a U.S. citizen, Laura only needs to wait two years plus one extra day before filing. The CIS will count the “one extra day” as the entire third year, since theoretically Marta could be absent for the rest of that year (364 days) and still not disrupt her continuous residence. Therefore, the earliest date Marta can file her naturalization application is January 4, 2012, two years and a day after she returned to the U.S.

§ 5.5 Exceptions to Disruptions of More than One Year In certain situations, the CIS will disregard disruptions of continuous residence of more than one year. Involuntary Departure: If the applicant was forced to leave the U.S. against his will (for example, if he was taken prisoner), and then is kept away from the U.S. against his will for over a year, the CIS will not find that he has disrupted continuous residence.37 However, an

36 37

8 CFR § 316.5(c)(1)(ii). INS Interpretations 316.1(b)(4); In re Yarina, 73 F. Supp. 688 (N.D. Ohio 1947).

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involuntary absence which is over a year, where the applicant voluntarily left the U.S., will be treated as a disruption.38 Misinformation by the CIS: In some circumstances, the CIS may find that an applicant has not disrupted continuous residence if a government official gave him incomplete, misleading, or wrong advice and the applicant relied on the advice by remaining absent from the U.S. for more than one year.39 U.S. Armed Forces: A lawful permanent resident who is absent from the U.S. while on active duty with the armed forces will not be found to have disrupted continuous residence, even if the absence was for more than one year.40 See Chapter 7-5 for more details on special rules for U.S. armed forces personnel. Constructive Residence through Service on Certain United States Vessels: Under certain circumstances lawful permanent residents who served on board a vessel operated by the U.S., or an agency thereof, may be able to apply the time serving on the vessel to the residence requirement for naturalization.41 Translators or Interpreters in Afghanistan or Iraq: This is a special exception under § 1059(e) of the National Defense Authorization Act for Fiscal Year 2006, which provides an exception to what is considered an absence that may break continuity of residence for applicants who have engaged in qualifying employment as translators or interpreters in Afghanistan or Iraq through Chief of Mission or the United States Armed Forces.42 The benefit is available even if only a portion of the qualifying employment occurred in Iraq or Afghanistan, as long as the time abroad was spent as a translator or interpreter. Section 1059(e) only addresses the continuous residence requirement, and it does not modify the physical presence requirement. It is available to applicants of all nationalities, not just Iraqi or Afghan nationals.43 Preserving Residence: Two groups of people are allowed to ask in advance that the CIS excuse them for absences from the U.S. for a period of more than one year. The first group consists of employees and contractors of the U.S. government, of certain U.S. corporations engaged in the development of foreign trade or commerce of the U.S., of 38

In re Naturalization of Vafaei-Makhsoos, 597 F. Supp. 499 (D. Minn. 1985) (LPR Iranian national returned to Iran and was prevented by the U.S. hostage crisis from returning to U.S. as planned, absence was found to disrupt residence for naturalization purposes). 39 INS Interpretations 316.1(b)(4); In re Petition of LaVoie, 349 F. Supp. 68 (D.V.I. 1972), but see Matter of Tuakoi, 19 I&N Dec. 341 (BIA 1985) that held that a failure to inform the respondent of all the legal consequences of his actions is not sufficient to establish affirmative misconduct. 40 INS Interpretations 316.1(b)(4). 41 INA § 330. 42 Section 1059(e) of the National Defense Authorization Act for Fiscal Year 2006, Pub. L. 109-163, 119 Stat. 3136, 3443, as amended by Pub. L. 110-36, 121 Stat. 227. 43 See 87 Interpreter Releases 8 (Jan. 4, 2010).

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certain research institutions, or of certain public international organizations.44 The applicant under this category must have been physically present and residing in the U.S. for an uninterrupted period of one year as a lawful permanent resident before his absence due to such employment, if he was employed by one of the organizations listed.45 The applicant must file Form N-470 with the CIS, either before or after employment commences, to request preservation of residence.46 This form can be filed after departing the U.S., so long as it is filed before the applicant has been away from the U.S. for one continuous year.47 The applicant must establish that his absence from the U.S. will be for one of the described purposes.48 Finally, upon his return to the U.S. the applicant must prove that his absence was in effect for one the described purposes.49 This exception also covers the applicant’s spouse and dependent unmarried sons and daughters residing abroad with the applicant.50 If an applicant has an approved Form N-470, but voluntarily claims non-resident alien status to qualify for tax exemptions, he may have given up the right to preserve his U.S. residence.51 It is important to note that the N-470 does not relieve the naturalization applicant from meeting the physical presence requirement for naturalization explained below, unless the naturalization applicant is employed by, or under contract with, the government of the United States.52 The second group consists of people performing religious duties abroad with specified religious organizations. Religious workers may apply before or after departure, or after they return to the United States, and are not required to have lived in the United States for a specific period of time prior to filing Form N-470.53 In most cases, the applicant must have been physically present and residing in the U.S. for at least one continuous year as a lawful permanent resident before filing the naturalization petition and invoking the exception, either before or after traveling abroad. The applicant must file Form N-470 with the CIS, although he does not need to do so if the absence is for less than one year.54 An applicant may submit the N-470 application before or after his absence from the U.S. and before or after the performance of his religious 44

INA § 316(b). INA § 316(b)(1). Also, if qualifying for an excused absence by virtue of being employed by a “public international organization” listed in the statute, the employment with that organization must not have begun until after the applicant’s lawful admission as an LPR. 46 8 CFR § 316.5(d)(1). 47 8 CFR § 316.5(d)(1) and the instructions to the N-470. 48 INA § 316(b)(1). 49 INS § 316(b)(2). 50 INA § 316(b) and 8 CFR § 316.5(d)(1)(ii). 51 8 CFR § 316.5(d)(1)(iii). 52 INA 316(c). 53 See Instructions for N-470, p. 1, available at http://www.uscis.gov/files/form/n-470instr.pdf. For a clergyman or clergywoman, missionary, brother, nun or sister of a religious denomination or interdenominational mission organization having a bona fide organization within the United States, the applicant may file the N-470 before or after an absence of one year or more. 54 8 CFR § 316.5(d)(1) and INS Interpretations 317.1(b)(2). 45

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duties abroad.55 Upon his return to the U.S., he must prove to the CIS that his absence was only for the purpose of performing religious duties. If he meets these criteria, then the CIS will count the time he was abroad as part of his five-year continuous residence in the U.S.56

WARNING: Preserving Residence with Form N-470 is different from a Reentry Permit (Form I131), which is discussed in Chapter 4, § 4.9 above. A Reentry Permit on its own may not prove that a person did not disrupt the continuity of her residence for naturalization purposes.57

INA § 316(f) describes another exception to the continuous residence, physical presence, and some of the requirements for certain people making extraordinary contributions to national security. Only the Director of the Central Intelligence Agency, the Attorney General, and Commissioner of Immigration have the right to determine who can benefit from this provision.58

§ 5.6 Second Residence Requirement: Three Months of Local Residence An applicant must have lived in the state or CIS district where she files her naturalization application for at least the three months immediately before filing her application.59 It is not enough to have lived in the state or CIS district for three months many years ago. The three month state residence requirement can be met if the applicant is absent from the U.S. for several months, has not abandoned her residence, and after the absence moves back to the same state from which she had originally departed.60 The absence must be for less than a year.61 If an applicant decides to apply for naturalization three months before she is actually eligible, she does not need to be living in the CIS district where she files the application for the three month period immediately before filing her application. Instead, she only needs to have lived in the CIS district for three months immediately before her naturalization interview.62

55

8 CFR 316.5(d)(2). INA § 317. 57 INA § 223(e). 58 INA § 316(f). 59 INA § 316(a)(1); 8 CFR 316.2(a)(5). 60 8 CFR § 316.5(b)(5) and INS Interpretations 316.1(b)(6). For example, Rosalinda lived in California for five years, and then following a seven-month visit to Mexico she returned to California. Rosalinda can immediately apply for naturalization because she fulfilled the three-month residency requirement prior to her visit to Mexico. Yet, had she moved to Arizona, instead of California after her visit to Mexico, she would have to live in Arizona for the full three months prior to applying for naturalization. 61 8 CFR 316.5(b)(5)(i). 62 8 CFR § 316.2(a)(5). 56

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NOTE: See Chapter 7-5 for special groups that may be exempt from the three-month local residence requirement.

Please see INA § 319(b) and Chapter 7-5 of this manual for an additional exception to the physical presence requirement for certain spouses of U.S. citizens working abroad. Under § 319(b), spouses of certain U.S. citizens stationed abroad may naturalize without demonstrating specific periods of residence or physical presence in the U.S. However, § 216, added by the Immigration Marriage Fraud Amendments (IMFA), places permanent residence conditions on non-citizen spouses who gain status as a lawful permanent resident through marriage to a U.S. citizen or lawful permanent resident that is less than two years old at the time of adjustment of status or admission.63 CIS has released a memorandum providing guidance on the circumstances under which someone admitted as a lawful permanent resident on a conditional basis pursuant to § 216 may be naturalized under § 319(b) before the conditions are removed.64 While § 319(b) does not preclude eligible spouses from naturalization due to overseas residence, it still requires non-citizen spouses to comply with all the requirements of naturalization laws, including lawful admittance for permanent residence in accordance with § 216.65 A student who is attending school in a state or CIS district away from home may apply for naturalization either where the school is located or where his or her home residence is, so long as he or she is financially dependent on his or her parents at the time of submitting the application and throughout the naturalization process.66

§ 5.7 Third Residence Requirement: Continuous Residence after Application Once a person has filed his naturalization application with the CIS, he must maintain continuous residence from the date of filing until he is admitted to U.S. citizenship.67 Continuous residence after application does not mean that the applicant must remain in the United States during the entire period while he is waiting for his application to be adjudicated. The rules for the continuous residence requirement after submitting the application are the same as the rules for the 63

CIS Memorandum, Conditional Permanent Residents and Naturalization under Section 319(b) of the Act, Aug. 4, 2009, at 2, available at http://www.uscis.gov/USCIS/Laws%20and%20Regulations/Memoranda/cond_perm_resident_.pdf. 64 CIS Memorandum, Conditional Permanent Residents and Naturalization under Section 319(b) of the Act, Aug. 4, 2009, available at http://www.uscis.gov/USCIS/Laws%20and%20Regulations/Memoranda/cond_perm_resident_.pdf. 65 CIS Memorandum, Conditional Permanent Residents and Naturalization under Section 319(b) of the Act, Aug. 4, 2009, at 2-3, available at http://www.uscis.gov/USCIS/Laws%20and%20Regulations/Memoranda/cond_perm_resident_.pdf. 66 8 CFR § 316.5(b)(2). 67 INA § 316(a)(2), Abdul-Khalek v. Jenifer, 890 F. Supp. 666 (E.D. Mich. 1995) (11 month absence after filing of petition and prior to examination broke continuous residency for naturalization purposes.); INS Interpretations 316.1(b)(4).

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continuous residence requirement prior to applying for naturalization.68 Similarly, the same rules regarding absences during the continuous residence that is required for the period prior to submitting the application should be applied to the continuous residence that is required during the period between submitting the application and the interview. Please see §§ 5.2–5.5 in this chapter.

§ 5.8 Fourth Residence Requirement: Physical Presence To qualify for naturalization, an applicant must have been physically present in the United States for at least half (30 months) of the five-year residence period discussed above.69 Example: Mary was denied naturalization because during the last five years (60 months) she only has been physically present in the U.S. for 24 months. Mary must wait and reapply when she has been physically present in the U.S. for at least 30 of the 60 months prior to the time she reapplies. There are several exceptions to the physical presence requirement.70 Some of the major exceptions are: 

Some unmarried children71 under 18 years old, who make a lawful admission to the U.S. and who have at least one U.S. citizen parent, may be obtain a certificate of citizenship without fulfilling the physical presence requirements.72



A spouse of a U.S. citizen only needs to have been physically present in the U.S. for half of the three-year residence period (18 months).73



A member of the U.S. Armed Forces who is serving abroad will still meet the physical presence requirement even if he is outside the U.S. for more than a year.74



U.S. Nationals may meet their physical presence requirement through physical presence in an outlying possession of the U.S.75 (i.e., American Samoa or the Swains Islands).76

68

INA § 316(a)(2). INA § 316(a)(1). 70 8 CFR §§ 319–331 and Ch. 7-5 of this manual. 71 “Child” is defined in INA § 101(c) for naturalization and citizenship. Although adopted children do qualify for certificates of citizenship under INA § 322(b) and (c), a stepchild is precluded from qualifying for a certificate of citizenship under this section. 72 INA § 322(a) and Chapters 7-5 and 12 of this manual. 73 INA § 319(a) and Chapter 7-5 of this manual. 74 8 CFR § 328.2(e)(1). 75 INA § 325, 8 CFR § 325.3(a), and see § 5.3 of this manual. 76 INA § 101(a)(29). 69

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Please see Chapter 7-5 for a more complete discussion of the special naturalization requirements and exceptions for children and spouses of U.S. citizens, people serving in the military, and U.S. nationals. Please see INA § 319(b) and Chapter 7-5 of this manual for an additional exception to the physical presence requirement for certain spouses of U.S. citizens working abroad. Please see INA § 319(c) an exception to this rule for people who are employed by certain U.S. nonprofit organizations.

NOTE: The physical presence requirement is an additional and separate requirement from the three other residence requirements discussed above.

PRACTICE TIP: The issue of physical presence will come up in Part 7 of the Naturalization Application, which asks the applicant to list all absences from the U.S. Before reviewing this question with your client, explain the residence and physical presence requirements with him in some detail. Often it is difficult for someone to remember how long he was out of the country. Discussing events in the client’s life often helps to jog the memory and allow a more accurate time sequence to be established. Referring to the applicant’s passport or any reentry permits she used is also helpful for recalling dates of absences from the U.S. This also helps to establish consistency because the CIS might ask to look at the passport. CIS officials will probably have all her old reentry permits and may compare the information on the reentry permits with any absence of information on the naturalization application. In cases where the dates are critical, the legal worker may consider filing a Freedom of Information Request [(FOIA) see Appendix 7-B] to obtain a copy of the client’s CIS file, which would include any old reentry permits.

Example: Antonia could not remember how long she was out of the country, nor could she remember the date she left. Yet, she did remember she left before Christmas and was back in the U.S. for the three-day weekend of President’s Day. Also, explaining the physical presence requirements to clients helps them understand why finding out about absences from the U.S. is so important. By being better informed, clients perform better during their CIS naturalization interview. Appendix 2-B contains a flyer explaining some of the legal requirements for naturalization.

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§ 7-5.2 Spouses of United States Citizens (from Chapter 7) The five-year residence requirement and the 30-month physical presence requirement contain an exception for a spouse of a U.S. citizen. A spouse of a U.S. citizen only needs to have lived in the United States for three years as a lawful permanent resident prior to qualifying for naturalization.77 Additionally, the alien spouse needs to have been physically present in the U.S. for only half of the three-year period, or 18 of the 36 months.78 The naturalization applicant must have been married to and living with her U.S. citizen spouse for at least three years, and the spouse must have been a U.S. citizen for the entire three years.79 The naturalization applicant need not have acquired permanent residence through marriage in order to benefit from this three-year rule. She may have been admitted for permanent residence through any means such as asylum and employment-based visas, so long as she has been married to and living with a U.S. citizen for the last three years and the spouse has been a U.S. citizen for the entire three years. To benefit from this rule, the applicant’s marriage must be valid, with the parties living in marital union during the three-year period.80 If the marriage has ended in divorce, legal separation, or death, before or after the naturalization application is submitted, the applicant will not be able to receive naturalization benefits from the marriage and will have to wait the five-year period instead of the three-year period.81 If an applicant’s marriage ends, marrying another United States citizen will not restore eligibility for the three-year residence rule. She will have to wait three years from the date of her second marriage unless, of course, she first accumulates five years as a lawful permanent resident and does not need the benefits of being married to a U.S. citizen (which is more likely to be the case).82 If the couple has informally separated, the CIS will evaluate whether the separation suggests that the marital union has dissolved and thus the

77

INA § 319(a). Ibid. 79 Id. 80 INA § 319(a) and 8 CFR § 319.1(a)(3). There is no requirement the individuals live together during the period from the interview until the date of naturalization. Yet, the CIS position is that although they do necessarily need to live together, the couple must remain in marital union until the date of the naturalization examination and, perhaps, even until the permanent resident is sworn into citizenship. See 8 CFR § 319.1(a)(3) and INS Interpretations 319.1(d)(1). This strict CIS interpretation seems to be contrary to INA § 319(a), which only requires that the three years of marital union exists before applying for naturalization. § 319(a) does not mandate that the couple continue to be in marital union at the time of the interview. See Ali v. Smith, 39 F. Supp. 2d 1254 (WD Wash. Mar. 22, 1999) and Chapter 11 of U.S. Citizenship and Naturalization Handbook (West Group by Daniel Levy). The ILRC encourages advocates and their clients to challenge the CIS’ strict interpretation of this requirement. 81 See footnote 5 and 8 CFR § 319.1(b)(2). 82 8 CFR § 319.1(b)(2). 78

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applicant will have to wait the five-year residence period instead of the three-year period.83 In the event that the couple lives apart because of circumstances beyond their control (such as military service or “essential business or occupational demands”) rather than because of a voluntary separation or informal separation, the separation, even if prolonged, will not preclude naturalization due to the living in marital union requirement.84 Example: John, a citizen of Canada, became a lawful permanent resident through his father’s petition in January 2009. In January 2010, he married Francine, a U.S. citizen. If John and Francine stay married and remain living together, John will be able to naturalize in January 2013. If, however, they get a divorce, John will have to wait the entire five-year period and cannot naturalize until January 2015. One who is married to a U.S. citizen can apply for naturalization three months before the three-year anniversary of becoming a permanent resident. Yet, according to the way that most, if not all, CIS offices interpret the law, although the applicant only needs to have been a permanent resident for two years and nine months before applying for naturalization, he or she has to have been living with and married to the U.S. citizen for at least three years before being eligible to apply for naturalization. Example: Sheila, from India, married a U.S. citizen in March 2008. In January 2009 she became a lawful permanent resident. Sheila will be eligible to apply for naturalization in October 2011 (two years and nine months after becoming a permanent resident). She will be able to apply three months before having been a permanent resident for three years because she will have already lived with and been married to her U.S. citizen spouse for three years by then. Esmeralda, a citizen of the Dominican Republic, became a permanent resident of the U.S. through her father in March 2008. In January 2009 she married a U.S. citizen. Esmeralda will be eligible to apply for naturalization in January 2012, not in October 2011, because she will not have been married to and living with her U.S. spouse for three years full years until January 2012. To document eligibility for this exception, the naturalization applicant must show she is married to a U.S. citizen, they have been married for three years, and that they have lived together for the three-year period. Important documents to submit with the application include: a valid marriage certificate (and if any prior marriages by either person, a valid divorce certificate), proof 83

See 8 CFR § 319.1(b)(2)(ii) and INS Interpretations 319.1(d)(2). However, brief separations, even if divorce was contemplated, have not kept people from showing the marital union still exists. Although the CIS defines “marital union” as “actually residing with one’s current spouse,” the meaning of marital union is not always equal to marriage. See INS Interpretations 319.1(d)(2) citing In re Olan, 257 F. Supp. 884 (SD Cal. 1966); In re Kostas, 169 F. Supp. 77 (D. Del. 1958); In re Omar, 151 F. Supp. 763 (SD NY 1957). If the couple does not live together as a result of circumstances beyond their control, such separation does not preclude naturalization. 84 8 CFR § 319.1(b)(2)(ii)(C).

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of the U.S. citizen spouse’s status as a citizen (i.e., birth certificate, passport, or certificate of citizenship), and bills, receipts, bank records, insurance records, or other papers containing both their names showing that the couple has lived together. VAWA Rule. If a naturalization applicant obtained her permanent resident status as the spouse, former spouse, intended spouse,85 or child of a current or former86 United States citizen who battered him or her or subjected him or her to cruelty, then the applicant can qualify for the same residence requirements as a spouse of a U.S. citizen. She only needs to be physically present for half of the three-year period, which is 18 out of the last 36 months, and only needs to have three years of continuous residence as a lawful permanent resident.87 This rule applies to individuals who obtained permanent residence through a self-petition under VAWA, through VAWA Cancellation of Removal, or through a waiver of the joint filing requirement for removal of conditional residency under § 216(c)(4)(C) of the INA.88 § 7-5.3 Spouses and Children of United States Citizens Stationed Abroad There is a separate naturalization provision for lawful permanent residents whose spouses89 are 1) U.S. citizens; 2) employed by the U.S. government, certain American research institutions, certain American firms or corporations engaged in international trade, or certain public international organizations, or who are performing certain religious or missionary duties; and 3) regularly stationed abroad in employment.90 People who fall under this provision may be naturalized without any prior residence in the U.S. or specified period of physical presence in the 85

The classes of applicants eligible for the reduced continuous residence requirement for naturalization under INA § 319(a) were clarified in an interoffice memorandum that also states that any applicant whose application was denied, on or after October 28, 2000, solely because of ineligibility for § 319 benefits, may seek reconsideration of the denial by filing a motion to reopen. See USCIS Interoffice Memorandum, “Clarification of Classes of Applicants Eligible for Naturalization under Section 319(a) of the Immigration and Nationality Act (INA), as amended by the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), Pub. L. 106-386.,” William Yates, January 27, 2005 and 82 Interpreter Releases 324 (Feb. 14, 2005). 86 The battered spouse or child of a U.S. citizen or lawful permanent resident may file a self-petition within two years of the abuser’s loss of status when the petitioner can demonstrate that the abuser lost his or her status for a reason that was “related to” or “due to” an incident of domestic abuse. See USCIS Interoffice Memorandum, “Eligibility to Self-Petition as a Battered Spouse or Child of a U.S. Citizen or Lawful Permanent Resident Within Two Years of the Abuser’s Loss of Status,” Michael Aytes, October 31, 2005. 87 INA § 319 as amended on October 28, 2000 by the Battered Immigrant Women Protection Act of 2000. 88 See USCIS Interoffice Memorandum, “Clarification of Classes of Applicants Eligible for Naturalization under Section 319(a) of the Immigration and Nationality Act (INA), as amended by the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), Pub. L. 106-386.,” William Yates, January 27, 2005. 89 It is not required that the applicant and spouse must have lived in marital union at any point, and furthermore it is only required that the applicant be married to the U.S. citizen spouse at the time of naturalization. As explained by U.S. Citizenship and Naturalization Handbook, Ed. 2006, Daniel Levy, Thomson/West, 2006, interpreting INA§ 319(b) and INA§ 319.2(c). 90 Defined as periods of not less than one year. See 8 CFR 319.2(1).

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U.S. or within a state or CIS district. It is also required that at the time of naturalization the applicant intends to reside abroad with the citizen spouse within thirty to forty-five days after the date of naturalization.91 For more information on this provision for spouses of U.S. citizens, please see INA § 319(b) and 8 CFR § 319.2. Under § 319(b), spouses of certain U.S. citizens stationed abroad may naturalize without demonstrating specific periods of residence or physical presence in the U.S. However, INA § 216, added by the Immigration Marriage Fraud Amendments (IMFA), places permanent residence conditions on non-citizen spouses who gain status as a lawful permanent resident (CPR) through marriage to a U.S. citizen or lawful permanent resident that is less than two years old at the time of adjustment of status or admission.92 In order to remove their conditional status, CPRs must jointly file with their petitioning spouse a Form I-751, Petition to Remove Conditions on Residence, within 90 days prior to the second anniversary of their admission as CPRs, to demonstrate that the marriage was not fraudulently entered into in order to bypass immigration laws, otherwise a failure to show a bona fide marriage or to comply with § 216 results in the termination of the alien’s LPR status.93 CIS has released a memorandum providing guidance on the circumstances under which someone admitted as a CPR pursuant to § 216 may be naturalized under § 319(b) before the conditions are removed.94 While § 319(b) does not preclude eligible spouses from naturalization due to overseas residence, it still requires non-citizen spouses to comply with all the requirements of naturalization laws, including lawful admittance for permanent residence in accordance with § 216.95 Effective January 28, 2008, the National Defense Authorization Act of Fiscal Year 2008 (NDAA 2008) amended several sections of the INA providing certain immigration benefits for spouses and children of a member of the Armed Forces.96 INA § 319(e) applies strictly to any LPR spouse who otherwise meets the requirements for naturalization under §§ 316(a) or 319(a); it does not provide an independent basis for naturalization.97 INA § 319(e) permits the LPR spouse to count any qualifying time spent abroad as continuous residence and physical presence in the United States and it allows the spouse to become naturalized abroad. INA § 322(d) allows the United States citizen parent of a child filing for naturalization to count time overseas as physical presence and it allows the child to naturalize overseas.98 In other words, spouses and children of 91

See 8 CFR § 319.2(b). CIS Memorandum, Conditional Permanent Residents and Naturalization under Section 319(b) of the Act, Aug. 4, 2009, at 2, available at www.uscis.gov/USCIS/Laws%20and%20Regulations/Memoranda/cond_perm_resident_.pdf. 93 Ibid. 94 Id. 95 Id. at 2–3. 96 National Defense Authorization Act for Fiscal Year 2008, Pub. L. 110-181, 122 Stat. 3. 97 USCIS Memorandum, Donald Neufeld, Acting Associate Director, Domestic Operations, Guidance on Continuous Residence, Physical Presence, and Overseas Naturalization for a Spouse or a Child of a member of the Armed Forces per Amendments to the Immigration and Nationality Act by the “National Defense Authorization Act for Fiscal Year 2008,” Aug. 15, 2008, at 5. 98 Ibid. at 1-2. 92

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U.S. Armed Forces members who are authorized to accompany their military spouse or parent abroad will have all periods of residency and physical presence abroad while accompanying their military spouse or parent treated as periods of residency and physical presence in the United States,99 and such spouses and children may also take the oath of citizenship and become naturalized abroad.100 It should be noted that § 319(b) does not require any prior period of residence or physical presence within the United States for any LPR spouse of a U.S. citizen who is an employee of the U.S. Government (including Armed Forces members) or recognized nonprofit organization who is stationed abroad in such employment for at least one year (see above). However, the NDAA 2008 did not amend § 319(b), so an applicant under § 319(b) must be in the United States for the naturalization process.101

99

Section 674, National Defense Authorization Act for Fiscal Year 2008, amending INA §§ 319, 322. 8 USC § 1443(a). 101 USCIS Memorandum, Donald Neufeld, Acting Associate Director, Domestic Operations, Guidance on Continuous Residence, Physical Presence, and Overseas Naturalization for a Spouse or a Child of a member of the Armed Forces per Amendments to the Immigration and Nationality Act by the “National Defense Authorization Act for Fiscal Year 2008,” Aug. 15, 2008, at 2. 100

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Abandonment of Residence -- Losing One’s Permanent Resident Status (from Chapter 4) A naturalization applicant must be careful if she has prolonged or repeated absences from the United States, because the CIS could believe that she has abandoned her residence. If the CIS thinks a naturalization applicant abandoned her residence, CIS could refer the case to the ICE who, in turn, could begin removal proceedings against the applicant. Although ultimately only an immigration judge can make a determination one has abandoned his residence, abandoning one’s residence terminates one’s lawful permanent residence status, and can result in two very serious consequences:  

the person may no longer qualify for naturalization; and the person may be removed from the U.S. (whether or not one is applying for naturalization).102

Absences must be carefully discussed with all applicants. If a parent abandons her residence and takes her child with her, the child also will be found to have abandoned her residence.103 There are exceptions to the abandonment of residence rule for someone who is lawfully admitted for permanent residence, is the spouse or child of a member of the Armed Services of the U.S., and is authorized to accompany and reside with the member of the Armed Forces abroad.104 The reason that a person who is presently in the U.S. can be removed for abandoning his residence is somewhat complicated. Essentially, a lawful permanent resident is someone who has the right to reside permanently in the U.S. so long as his status does not change.105 A lawful permanent resident who makes a temporary visit abroad is permitted to enter the U.S. as a “special immigrant.”106 If the lawful permanent resident’s trip abroad was more than a 102

See INA § 101(a)(27)(A) and Matter of Huang, 19 I&N Dec. 749 (BIA 1988). Even if a lawful permanent resident had already entered the U.S., if she had abandoned her residence at any time, the CIS or ICE could decide that she abandoned her residence and place her in removal proceedings for a judge to determine if she did indeed abandon her residence, and is thus no longer a lawful permanent resident under INA § 101(a)(27). Additionally, she could be found to be removable under INA § 241(a)(1)(A) as someone who was inadmissible at time of admission or under INA § 212(a)(7)(A)(i) as someone who entered the U.S. without a valid unexpired immigrant visa. Although there is no waiver for abandonment of residence, there is a 212(k) waiver of INA § 212(a)(7)(A)(i). For more information about this waiver, please see § 4.5.

103

See Matter of Zamora, 17 I&N Dec. 395 (BIA 1980); Matter of Favela, 16 I&N Dec. 753 (BIA 1979). INA § 284(b).

104

105

INA § 101(a)(20).

106

INA § 101(a)(27).

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“temporary absence,” the CIS, CBP, or ICE can find that he abandoned his residence. Therefore, he can no longer be admitted to the U.S. as a “special immigrant,” which means that his status has changed. This status change means that he was no longer lawfully admitted for permanent residence under INA § 101(a)(20). When he came back into the U.S., he really entered without a valid visa and was therefore inadmissible under INA § 212(a)(7)(A)(i)(I). Since he was inadmissible at time of admission, he is presently removable under INA § 237(a)(1)(A).107 There is really no set time period to measure how long a person’s absence can be before he can be found to have abandoned his residence.108 Instead, it is determined on a case-by-casebasis. Often, but certainly not always, the reality is that if someone has been abroad for less than six months, no one will ask him questions about abandonment when he returns to the U.S. If he is absent for between six months and one year, he may have to prove that he did not abandon his residence. If he was gone for more than one year, it may be difficult for him to prove he had not abandoned his residence, but certainly not impossible.109 But note that a person who was abroad for any period of time, including less than six months, could be found to have abandoned his residence, if in fact the person intended to move his home from the U.S. to another country. It all depends on the circumstances of the absence.

Note: Even if the CIS thinks someone has abandoned her residence, a naturalization adjudicator should not take away her green card right away, and the person will not be removed immediately. First, the CIS investigates the naturalization applicant to see if she did indeed abandon her residence. Then, if the CIS thinks it appropriate, either it issues a Notice To Appear, which is the charging document that starts removal proceedings or, in some cases, the ICE would issue the Notice To Appear. The individual is entitled to a hearing and a lawyer or accredited representative may represent her. This process can take many months. Sometimes the CIS or 107

See Matter of Huang, 19 I&N Dec 749 (BIA 1988).

108

Abandonment of residence should not be confused with “disruption of continuity of residence,” a separate naturalization requirement discussed in Chapter 5.

109

There are examples of cases where people were gone for more than a year and the BIA or a Federal Appeals Court found they did not abandon their residences. In fact, in one instance the individual was gone for four years trying to sell his assets, returning to the U.S. for only two brief visits during the time abroad, and the BIA found he did not abandon his residence. Generally, the important facts to prove in the case of someone gone for a long period of time are that he intended to leave for a temporary visit, while abroad he kept his intent to continue living in the U.S. as a lawful permanent resident, and he could not come back because of unforeseen circumstances causing an unavoidable delay. See also Hana v. Gonzales, 400 F.3d 472 (6th Cir. 2005), which found that in looking at the totality of the circumstances, when the lawful permanent resident in this case was gone from the United States for nearly all of a 4 and ½ year period, she did not abandon her residence. For an additional information on this issue, please see “You Can Go Home Again: How to Prevent Abandonment of Lawful Permanent Resident Status,” by Gary Endelman, Immigration Briefings, No. 91-4 (April 1991).

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ICE may decide not to initiate removal proceedings even though the CIS or ICE may think that a naturalization applicant has abandoned her residence. This decision is left to the local CIS or ICE office that has jurisdiction where the naturalization applicant lives.

Anyone accused of abandoning his or her residence is entitled to a hearing in front of an immigration judge. It is the ICE’s burden to prove that there is “clear, convincing and unequivocal” evidence that someone has abandoned his residence.110 But the courts will decide whether ICE met its burden by utilizing only a “substantial evidence” standard of review.111 To determine if a lawful permanent resident has abandoned his residence, the ICE looks to the person’s intention in going abroad. If the person intended to permanently leave the U.S., the ICE, and eventually the courts, probably will find that he or she abandoned his or her residence. If he or she only went abroad intending to stay for a short time or a temporary, finite period, generally the ICE, and the courts, should find that he or she has not abandoned his or her residence. To combat ICE’s claim that a lawful permanent resident abandoned his residence, the person must show his absence was temporary and not permanent, and that he did not move his residence to another country. The courts will consider several factors in determining whether there has been an abandonment of residence, such as: 1. Purpose of the trip abroad: the applicant should show a definite reason for the temporary visit; 2. Intended duration of visit: the shorter the better. The applicant should show that he or she expected the visit to end within a short period of time, or at the occurrence of a definite, fixed event; 3. Place of employment: the case is much stronger if the applicant can prove his employment was in the U.S.; 4. Ties to the U.S.: the applicant should demonstrate personal, financial, and other relevant commitments to the U.S.; 5. Applicant’s home: the applicant should show that he or she considers the U.S. his actual home, as opposed to just a place of employment or business, or a place to visit.112

110

Karimijanaki v. Holder, 579 F.3d 710, 715 (6th Cir. 2009); Matadin v. Mukasey, 2008 WL 4489760 (2d Cir. 2008) (holding that the IJ and BIA erred in shifting the burden of proof from the government to the petitioner); Khodagholian v. Ashcroft, 335 F.3d 1003 (9th Cir. 2003) citing Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997) and Woodby v. INS, 385 U.S. 276 (1966); Hana v. Gonzales, 400 F.3d 472 (6th Cir. 2005). See also Matter of Huang, 19 I&N Dec. 749 (BIA 1988).

111

Id.

112

See Matter of Kane, 15 I&N Dec. 258 (BIA 1975) and Matter of Huang, 19 I&N Dec. 749 (BIA 1988).

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However, an applicant does not have to own or rent a dwelling in the U.S. in order to show that he or she has not abandoned residence.113 If the applicant says that her intent was to take only a temporary trip abroad, but her actions tend to show otherwise, the courts could very well find that the applicant did not really “intend” her trip as a temporary one, and may find that she has abandoned her residence.114 A trip abroad must be either for a relatively short period, fixed by some early event, or intended to end after an event that reasonably should occur within a relatively short period of time.115 In the latter situation, the individual must have a continuous, uninterrupted intention to return to the U.S. during his entire visit.116 In various Circuits, the issue is supposed to be not whether or not the person ultimately intended to return to the United States, but whether or not the person had the intent to return to the United States within a relatively short period of time.117 Example: Mae, from Vietnam, was a lawful permanent resident of the U.S. when she returned to Vietnam to attend her father’s funeral. While there, she had to sell her family’s farm and business. It took her 15 months to sell everything and then she spent an additional week packing the remaining belongings before she returned to the U.S. Mae should argue that she reasonably expected the funeral and sale of the farm and business to occur in a relatively short period of time. (She thought the funeral would be quick and it would not be hard to sell the farm and business.) Additionally, she should argue that for the entire period she was gone she maintained her intent to continuously reside in the U.S. all the

113

See Matter of Huang, 19 I&N Dec. 749, 753 (BIA 1988).

114

Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997); see Katebi v. Ashcroft, 396 F.3d 463 (1st Cir. 2005) (Court found that act of naturalizing in Canada after becoming a permanent resident of the U.S. and other ties to Canada inconsistent with intent to return to U.S. even though LPR later returned and resumed residence in U.S.); Ahmed v. Ashcroft, 286 F.3d 611 (2d Cir. 2002) (LPR left for 9 years, didn’t maintain ties in U.S., but maintained ties and employment abroad meant that LPR abandoned residence).

115

Karimijanaki v. Holder, 579 F.3d 710, 715 (6th Cir. 2009); Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997); Moin v. Ashcroft, 335 F.3d 415 (5th Cir. 2003).

116

Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997); Chavez-Ramirez v. INS, 792 F.2d 932 (9th Cir. 1986); Moin v. Ashcroft, 335 F.3d 415 (5th Cir. 2003); but see Khodagholian v. Ashcroft, 335 F.3d 1003 (9th Cir. 2003).

117

Katebi v Ashcroft, 396 F.3d 463 (1st Cir. 2005); Ahmed v. Ashcroft, 286 F.3d 611 (2d Cir. 2002); Moin v. Ashcroft, 335 F.3d 415 (5th Cir. 2003); Modarresi v. Gonzales, 168 Fed. Appx. 80 (6th Cir. 2006); Karimijanaki v. Holder, 579 F.3d 710, 715 (6th Cir. 2009); Chavez-Ramirez v. INS, 792 F. 2d 932 (9th Cir. 1986); Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997).

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time she was in Vietnam. She should also list her ties to the U.S. such as a home, relatives, and her job. Even though the ICE has the burden in court to prove abandonment of residence by “clear, unequivocal, and convincing evidence,”118 an individual who has been accused of abandoning her residence and threatened with the loss of lawful permanent residence status needs to gather all the documentation that she can to show she did not abandon her residence. Brainstorming with the client on what documents are supportive is generally helpful. Several examples below demonstrate how the issue arises, and suggest what documents may be useful. Example: Maria Martinez has been a lawful permanent resident for five years. She is married and has one daughter. She went alone to visit her parents once for a month three years ago, and then for thirteen months last year when her mother was very sick. Maria thought she would be gone for two months to take care of her mother but the illness lasted nearly thirteen months. Maria and her husband own their home and she came back to her job as a lab technician. Someone from the CIS has told Maria that she might have abandoned her residence. Now, she is in your office and the two of you are meeting to discuss her situation. You could start the meeting by explaining that a green card allows someone to live in the U.S. and travel in and out of the U.S whenever she wants. But it does not allow someone to live in another country for long periods and keep her green card at the same time. Once someone decides to live in another country, she is considered to have abandoned her residence in the U.S. and could lose her green card. Thus, Maria must show she did not intend to leave the U.S. permanently. To demonstrate that Maria did not intend to leave the U.S. permanently, she could try to collect some of the following documents: (1) Deed to her house. This will show she has property to return to in the U.S. If she did not own property, she can use other documentation that she continued to maintain an apartment in the U.S. during her stay abroad (e.g, phone bills, electric bills, lease agreement). (2) Tax records. These will help show her intent to remain a U.S. resident. (3) A letter from her mother’s doctor. This may show that the illness lasted longer or was more serious than Maria expected, suggesting that she initially intended to be away from the U.S. for only a short period.

118

See Matter of Huang, 19 I&N at 754.

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(4) Her daughter’s school records. This shows that her daughter has remained in school in the United States, and implies that Maria intended to return. (5) Letters to and from her husband and daughter, saying that she planned to come back to the United States. (6) Declaration of her husband, saying he knew that she planned to return to the U.S. when her mother recovered. (7) Letter(s) to her employer telling her employer when she expected to be back, and asking that she be able to come back to her same job. If she belonged to a union, proof that she was paying her union dues would be helpful. (8) Letter(s) from her employer discussing temporary job coverage. (9) Proof that she kept a U.S. bank account while she was out of the U.S. This is not an exhaustive list. You and Maria should think of as many documents as possible. The CIS and ICE may assume (a rebuttable presumption) that any naturalization applicant who is a lawful permanent resident has abandoned her residence if she has done either of the following: (1) voluntarily claimed nonresident alien status when filing her tax returns, because she wanted to qualify for special exemptions from income tax liability; or (2) failed to file her state or federal taxes because she considered herself to be a nonresident alien.119 It is important to keep clients aware of the dangers of abandoning their residence. If a client is about to go abroad for a long period of time, take the time to explain the concept of abandonment to her. In fact, it is probably best to explain the concept (or at least distribute a flyer explaining it) to every client in your office who obtains status as a lawful permanent resident. For sample flyers in English and Spanish, which explain abandonment, please see Appendix 4-B. When explaining abandonment, not only do you need to explain the risks and requirements involved, but also you need to go over ways to keep from one abandoning his or her residence. Give clients helpful tips about how to avoid being asked about abandonment upon reentering the U.S. For instance, the CIS or ICE may get suspicious if someone has a round trip 119

See 8 CFR § 316.5(c)(2) and INS Interpretations 318.4.

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airline ticket originating in a foreign country, does not have a driver’s license (or identification card) or bank account in the state he claims to live in the U.S., has no job, possessions or home in the U.S. (especially if he has any of these in another country), or has not filed taxes in the U.S.

Reentry Permits A reentry permit can be very useful for a lawful permanent resident who is expecting to leave the U.S. for an extended period of time.120 This does not mean a reentry permit alone is sufficient evidence that a lawful permanent resident did not abandon her residence.121 Even if someone obtained a reentry permit before leaving the U.S., the key issue when one leaves the U.S. still will be whether or not the applicant intended to abandon her residence. Thus, it is vital for all practitioners to make sure clients applying for reentry permits know a reentry permit is not always sufficient protection against losing their green cards if they intend to abandon their residences. This interpretation that we are offering is the interpretation of many practitioners. There is, however, another interpretation, which is more generous. The more generous interpretation is that so long as a lawful permanent resident did not obtain his reentry permit by fraud or misrepresentation, the permit should be sufficient evidence to demonstrate that he was returning from a temporary absence abroad and therefore did not abandon his residence.122 Practitioners should not rely on this more generous interpretation because they might not have much success with it. However, if they and their clients have no other recourse, then they should try the more generous interpretation. Under 8 CFR § 223.3(d)(1), a permanent resident who has a valid reentry permit shall not be found to have abandoned her residence based solely upon the length of her absence or absences while the reentry permit was still valid.

Practice Tip: If a lawful permanent resident obtained a reentry permit prior to leaving the U.S. and upon returning from a trip abroad the CBP, ICE, or CIS accuse him of abandoning his residence, the resident should make the following arguments: 1. He never intended to abandon his residence; and

120

See INA § 223, 8 CFR § 211.1(a)(3).

121

Moin v. Ashcroft, 335 F 3d. 415 (5th Cir. 2003).

122

See Matter of V, 4 I&N Dec. 143 (BIA 1950, Approved by the Attorney General, 1950).

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2. That since he did not obtain the reentry permit by fraud or misrepresentation, the permit should be sufficient evidence to demonstrate that he was returning from a temporary absence abroad and therefore did not abandon his residence.123

To apply for a reentry permit one must complete Form I-131. The permit may be used for multiple re-entries.124 It is valid for a maximum of two years from the date of issuance, unless it specifies less time.125 If the LPR has been outside the U.S. for more than 4 of the past 5 years since becoming an LPR, then the reentry permit will be limited to 1 year, except for: (1) a permanent resident whose travel is on order of the U.S. government, other than an exclusion, deportation, removal, or rescission order; (2) a permanent resident employed by a public international organization of which the U.S. is a member by treaty or statute; or (3) a permanent resident who is a professional athlete and regularly competes in the U.S. and globally.126 The permit cannot be renewed.127

WARNING: A reentry permit from the CIS can be helpful in showing someone did not abandon her residence. But even with a reentry permit, one can lose her status as a resident if she did indeed intend to abandon her residence and abandoned it. However, a lawful permanent resident who has a valid (unexpired) reentry permit (and who is otherwise admissible) cannot be said to have abandoned her residence only because she was gone for a long time.128

123

See 8 CFR § 211.1(b)(2) and Matter of V, 4 I&N Dec. 143 (BIA 1950, Approved by the Attorney General, 1950).

124

See 8 CFR § 223.3(d)(1) and Matter of V, 4 I&N Dec. 143 (BIA 1950, Approved by the Attorney General, 1950). 125 8 CFR § 223.3(a). 126

Instructions for Form I-131, Application www.uscis.gov/files/form/i-131instr.pdf.

127

8 CFR § 223.3(c).

128

74 Interpreter Releases 1276 (August 18, 1997) and 8 CFR § 223.3(d)(1).

31

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Immigrant Legal Resource Center October 2010

CHAPTER 6 GOOD MORAL CHARACTER AND STATUTORY BARS TO ELIGIBILITY

This chapter includes: § 6.1 § 6.2 § 6.3 § 6.4 § 6.5 § 6.6 § 6.7 § 6.8 § 6.9

Introduction ........................................................................................................ 6-1 The Good Moral Character Requirement -- An Overview ................................. 6-2 Criminal Convictions and Conduct That Are Statutory Bars to Establishing Good Moral Character under INA § 101(f) ............................... 6-8 Non-Citizen Voting .......................................................................................... 6-24 Denial of Naturalization Based on a Discretionary Finding of a Lack of Good Moral Character ................................................................................. 6-33 Dealing with Clients Who May Have a Criminal Record -- Obtaining Records ............................................................................................................. 6-51 Temporary Ineligibility to Naturalize............................................................... 6-52 Permanent Ineligibility to Naturalize ............................................................... 6-53 Deportability Issues .......................................................................................... 6-55

§ 6.1 Introduction This chapter covers some of the areas that most often cause problems for naturalization applicants. They include good moral character, certain statutory bars, and categories of lawful permanent residents who are ineligible for naturalization. Some of the bars are temporary while others are permanent. In this chapter, we also consider certain factors that are relevant to whether or not discretion will be exercised in the applicant’s favor. In any of these cases, the applicant’s history is important.

IMPORTANT NOTE: The Immigration and Naturalization Service (INS) was for many years the main federal government agency that administered US immigration law. However, effective March 1, 2003, Congress dissolved the INS, and all of its functions were assumed by the newly created Department of Homeland Security (DHS). Immigration laws are now administered and enforced by three separate divisions within the DHS: the U.S. Bureau of Customs and Border Protection (CBP), the U.S. Bureau of Citizenship and Immigration Services (CIS), and the U.S. Bureau of Immigration and Customs Enforcement (ICE). The CBP’s main responsibility is apprehending aliens attempting to enter into the U.S. illegally, and, especially, preventing terrorists from entering the U.S. The ICE’s mission includes managing investigations of document, identity, visa, and immigration fraud; investigating

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immigration violations and migrant smuggling, detaining, prosecuting, and removing undocumented, and other removable aliens. The CIS’s mission is the adjudication of all petitions previously adjudicated by the INS, including naturalization and citizenship applications.

It is absolutely crucial to make sure that a naturalization applicant not only has good moral character, but also is not deportable. The worst thing that can happen to an applicant without good moral character is that she must wait some time until she can demonstrate good moral character and then apply again for naturalization. In contrast, if an applicant is deportable, DHS might begin removal (deportation) proceedings against her, take away her lawful permanent resident status, and deport her. Some people even have been arrested during their naturalization interviews! We will remind you several times in this chapter of the importance of getting expert advice if there is any possibility that an applicant might be deportable. Establishing good moral character is a three-step process. First, the person must prove that under the statute, she is not disqualified from showing good moral character. In other words, the applicant must demonstrate that she is not statutorily barred from showing good moral character. Second, the applicant must show that she really does have good moral character. Third, the applicant must not be deportable or else she could be placed in removal proceedings. In examining good moral character it’s important to consider the following questions: 1) Is the person statutorily barred from establishing good moral character, and if so, for how long? 2) If the person is not statutorily barred from establishing good moral character, can the person convince the examiner that his or her good moral character meets the community’s standard? 3) Is the person deportable? And if so, can the person ever overcome the deportability issue? The discussion that follows will help you ascertain the answers to the above questions. If you are not clear as to the answers to any of the questions, or if you find the person to be deportable (regardless of whether or not there appears to be a solution to the deportability issue), you should consult the recommended books or refer the client to an immigration expert if you are not one.

§ 6.2 The Good Moral Character Requirement -- An Overview The naturalization applicant must demonstrate that during the required statutory period (five years for most people, three years for spouses of U.S. citizens)129 she has been and still is a

129

See Chapter 5 for a thorough discussion of residency and physical presence requirements. The statutory period for showing good moral character may vary for some individuals, but in general, most applicants have to establish good moral character for a five-year period and spouses of U.S. citizens have to establish

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person of good moral character.130 This required statutory period occurs immediately prior to filing the application for citizenship.131 The applicant must also demonstrate and maintain good moral character from the time the citizenship application is filed until the applicant actually takes the oath of allegiance to become a U.S. citizen.132 The applicant bears the burden of showing that he or she is eligible for naturalization “in every respect,”133 and doubts “should be resolved in favor of the United States and against the claimant.”134 Any applicant who cannot satisfy the good moral character requirement or who is statutorily barred from proving it will not be allowed to naturalize. The fact that the applicant must have good moral character for five years (or three years) does not mean that the CIS is limited to only looking at the applicant’s activities during that statutory period.135 In fact, the Immigration and Nationality Act (INA) explicitly states that the good moral character for a three-year period. Persons serving or who have served in the military can come within special rules. 130

INA § 316(a)(3). Under 8 CFR § 316.10(a)(1), an applicant for naturalization must be a person of good moral character during the statutory period prior to applying, while the application is pending, and during the period between the examination and the oath of allegiance.

131

Note, however, where there is an unreasonable delay in the adjudication of the citizenship application, the court may find that the good moral character statutory period moves forward with time and no longer always applies to the statutory period that falls immediately preceding filing of the application. See Jalloh v. Department of Homeland Security, 2005 WL 591246 (D. Mass. 2005) (CIS delayed so long in acting upon the petitioner’s application that by the time it got around to rendering a final decision, the conduct upon which the denial was based was so far away that it fell outside of the statutorily prescribed look-back period).

132

8 CFR § 316.10(a)(1); see also Jean-Baptiste v. United States, 395 F.3d 1190, 1192 (11th Cir. 2005); United States v. Dang, 2004 WL 2731911 (ED Cal. 2004) (No. Civ. S-01-1514 WBSDAD). Note, that if criminal offenses are committed prior to oath, even if arrest or conviction fall after the oath of citizenship, the person could be subject to denaturalization. Jean-Baptiste and Dang, supra.

133

Berenyi v. Dist. Dir., Immigration and Naturalization Service, 385 U.S. 630, 637 (1967); Sabbaghi v. Napolitano, 2009 U.S. Dist. LEXIS 115861, *14, *15 (WD Wash. Dec. 11, 2009). See also 8 CFR § 316.2(b) (“The applicant shall bear the burden of establishing by a preponderance of the evidence that he or she meets all of the requirements for naturalization, including that the applicant was lawfully admitted as a permanent resident to the United States, in accordance with the immigration laws in effect at the time of the applicant's initial entry or any subsequent reentry.”).

134

Berenyi, supra, at 637.

135

Nyari v. Napolitano, 562 F.3d 916, 920 (8th Cir. 2009) (“an applicant's ‘conduct and acts’ prior to the statutory period may be considered for purposes of the moral character determination ‘if the conduct of the applicant during the statutory period does not reflect that there has been reform of character from an earlier period or if the earlier conduct and acts appear relevant to a determination of the applicant's present moral character.’”). See also 8 CFR § 316.10(a)(2).

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government is not limited to the five- or three-year period immediately before the application is filed.136 The CIS can, and often does, look beyond the statutory period to determine if the applicant has good moral character. Thus, the applicant’s good behavior during the past five years, while critical, is not the last word on her good moral character. The CIS recognizes that when Congress created the requirement that naturalization applicants demonstrate good moral character during a specified period, it intended to allow the eventual naturalization of those individuals who in the past engaged in some wrongdoing but who have now “reformed.”137 However, the CIS reasons that in order to determine if these individuals have reformed, activities prior to the statutory period can and will be considered. Thus, past behavior may reflect on even current character. On the other hand, the INS Interpretations state138 and some courts139 have held that the applicant’s behavior before the five or three-year period cannot be the only reason to deny naturalization. As long as the applicant has shown “exemplary” conduct within the required statutory period, he or she must be found to have good moral character.140 The CIS must evaluate 136

INA § 316(e). See also INS Interpretations 316.1(f)(2). See, e.g., Ikenokwalu-White v. INS, 316 F.3d 798 (8th Cir. 2003) (explaining that conduct predating the relevant statutory time period may be considered relevant to the moral character determination, but that such conduct cannot be used as the sole basis for an adverse finding).

137

INS Interpretations 316.1(f)(1).

138

INS Interpretations 316.1(f)(2).

139

See, e.g., Matter of Carbajal, 17 I&N Dec. 272 (RC 1978) (noncitizen’s prior immigration violations standing alone are insufficient to find that he is not of good moral character).

140

INS Interpretations 316.1(f)(2) (where conduct has been exemplary during the statutory period and the only adverse facts occurred outside of the period, a denial of naturalization is generally precluded). See also Hovespian v. Gonzales, 422 F.3d 883, 886 (9th Cir. 2005) (finding applicants of good moral character despite convictions for conspiracy to transport explosive materials in interstate commerce because they occurred 20 years prior and applicants had shown significant rehabilitation through positive contributions to the Armenian community, employment, rejection of the use of violence to express a political view, and remorse of their actions); Santamaria-Ames v. INS, 194 F.3d 1127 (9th Cir. 1996) (reversing the District Court’s adverse good moral character determination based exclusively on lengthy criminal history outside of the statutory period and remanding to give the applicant the opportunity to show he was of good moral character); Marcantonio v. U.S., 185 F.2d 934, 937 (4th Cir. 1950) (reversing the judge’s finding that applicant was not of good moral character based on three convictions relating to unlawful liquor business and a conviction for assault with intent to murder with a three year prison sentence where the crimes were committed outside of the statutory period and the applicant demonstrated that he was rehabilitated through lawful employment, attending church, and taking care of his family); Gatcliffe v. Reno, 23 F. Supp. 2d 581 (D.V.I. 1998) (reversing INS decision that the applicant could not establish good moral character based solely on convictions for arson and conspiracy to damage and destroy a building and driving while intoxicated with sentences of imprisonment over two years, both of which occurred outside the five-year

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each application on a case-by-case basis.141 And advocates can argue that if the CIS determines that an applicant does not have good moral character, CIS should issue a written decision that follows 8 CFR § 336.1(b) and lists the pertinent facts and legal bases upon which the denial was based.142 The good moral character requirement can be very confusing. One of the reasons for this confusion is that there is no actual statutory definition of what good moral character means. The INA only defines what good moral character does not mean and what individuals will not be allowed to establish good moral character.143 It is clear, however, that to prove good moral character a person does not have to demonstrate moral excellence or perfection.144 Instead, the CIS takes the position that in determining good moral character, the “standards of average citizens of the community in which the applicant resides” will be applied.145 Since “community standards” change over time, the definition of good moral character also changes over time.146 statutory period where applicant had convincing testimony of rehabilitation); Tan v. INS, 931 F. Supp. 725 (D Hi. 1996) (reversing immigration judge’s denial of naturalization due to a fraudulent marriage scheme that occurred outside of the statutory period where applicant showed exemplary conduct by serving honorably in the military for over 12 years and receiving numerous letters of appreciation, letters of commendation, and medals.) 141

8 CFR § 316.10(a)(2).

142

See Settlement in Class Action Challenging Naturalization Denials; USCIS Agrees to Pay Attorneys’ Fees and Cost, 82 Interpreter Releases 1932 (December 5, 2005).

143

INA § 101(f).

144

Matter of T, 1 I&N Dec. 158 (BIA 1941) (“Good moral character does not mean moral excellence.”); Klig v. United States, 296 F.2d 343, 346 (2d Cir. 1961) (“We do not require perfection in our new citizens.”).

145

INS Interpretations 316.1(e)(1). See Ragoonanan v. USCIS, 2007 U.S. Dist. LEXIS 92922 at *12 (D Minn. 2007) (finding that driving under the influence in the wrong lane for several blocks is not a situation where the community would be “rightfully outraged”); Cajiao v. Bureau of Citizenship and Immigration Services, 2004 U.S. Dist. LEXIS 29734 (SD Tx. 2004) (finding that applicant was a person of good moral character under the standards of the average citizen in Harris County, Texas community); Matter of T, 1 I&N Dec. 805 (BIA 1966) (“A good moral character is one that measures up as good among the people of the community in which the party lives; that is, up to the standard of the average citizen. Moral standards differ from time to time and place to place. In the determination of an alien's moral character, we apply the standard of the average American citizen as it exists today. Reputation that will pass muster with the average man is required. It need not rise above the level of the common mass of people.”); Bruckiewicz v. Savoretti, 211 F.2d 541, 543 (5th Cir. 1954) (finding that petitioner did not prove good moral character because his character did not measure up to the average citizen); Repouille v. United States, 165 F.2d 152, 153 (2d Cir. 1947) (good moral character exists when a person’s life as a whole conforms to generally accepted morals of his time).

146

INS Interpretations 316.1(e)(1). For example, prior to the repeal of INA § 101(f)(2) on December 29, 1981, adultery was a mandatory bar to establishing good moral character. INS Interpretations 316.1(f)(6).

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WARNING: Beware of assisting naturalization applicants who are deportable or were inadmissible when they last entered the country, even if they can show good moral character. Good moral character is not the only issue to look for in evaluating your clients past life. In the course of investigating the naturalization application the CIS might discover those things and put your client in removal proceedings. Needless to say, if this happens, your client’s naturalization application will be denied. Remember that the grounds of deportation and inadmissibility include more areas than does good moral character, so a person might have good moral character but still be deportable or inadmissible. See Chapter 4.

Example: Yosh Tsukamoto, who had never been to the U.S. before, was admitted as a lawful permanent resident in 2000. In 2004, he visited relatives in Japan, and while there he was arrested for possession of cocaine and served three months in jail. The immigration officials at the airport asked him for his I-551 card (“green card”) when he arrived back in the United States. When he showed it, they said it was okay for him to re-enter the U.S. Should Mr. Tsukamoto apply for naturalization now that he has been a lawful permanent resident for more than five years and only left the country for four months? No. Mr. Tsukamoto is deportable because he has been convicted of a controlled substance offense after he was admitted to the United States (this includes foreign convictions). He also is deportable because the conviction caused him to be inadmissible when he re-entered the United States from his trip to Japan. He does not appear to have any possible waiver or relief from removal.

WARNING: Expungements and Some Other Ways of “Erasing” a Conviction Will Only Work in Very Limited Cases. Many people might be found ineligible to show good moral character or even deportable because of a criminal conviction. In the past, individuals who were deportable due to a conviction were able to “expunge” or otherwise erase the conviction in order Currently, it is the CIS’ position that while adultery is no longer a mandatory bar, a finding of a lack of good moral character will be found where adultery: destroys a viable marriage, is grossly incestuous, is commercialized or causes public notoriety and public scandal. See INS Interpretations 316.1(g)(2)(viii) for the complete description of the Immigration Service’s current position on adultery. Many of these “criteria” may be challenged. The Ninth Circuit has held that having sexual relations with a common law wife and fathering a child out of wedlock are not proper negative considerations in a discretionary decision (in that case, an application for 212(c) relief). See Yepes-Prado v. INS, 10 F.3d 1363 (9th Cir. 1993). The CIS rule is to penalize only persons who with full knowledge and willful disregard break up a “viable” marriage by committing adultery. See INS Interpretations 316.1(f)(6).

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to avoid deportability. In 1998 and 1999 the BIA and in 2005 the Attorney General ruled that many types of state court proceedings such as rehabilitative relief that erase a conviction will not be accepted for immigration purposes.147 The Ninth Circuit Court of Appeals modified these rulings in 2000 to allow individuals with some drug-related convictions to use expungements to avoid deportation, if their immigration hearings are held within Ninth Circuit states. However, the Ninth Circuit might overturn this rule in 2011. See § 6.9 (C)(1), below. The important point is: Any naturalization applicant who went through criminal proceedings and is counting on some kind of diversion, expungement, vacation of judgment, or deferred adjudication to wipe out his or her conviction must consult with an expert to make sure the conviction is really gone!!! Only under certain circumstances will such relief actually erase a conviction. For more information on this topic, please see the ILRC’s manual entitled Defending Immigrants in the Ninth Circuit: Impact of Crimes under California and Other State Laws.

PRACTICE TIP: Explain the good moral character requirement to your client. Encourage her to ask questions. Your client should understand the requirement as well as the importance of being honest about any prior encounters with law enforcement or the Immigration Service. Your client may think that something she did in the past is insignificant or will not affect her application, or she may simply be embarrassed to talk about it. The incident may indeed be insignificant in the sense that it would not ultimately affect her ability to naturalize. However, if the item is more serious, knowing about it in advance may enable you and the client to clean up the situation. Another reason for learning about negative factors ahead of time is that the CIS takes the position that a petition will be recommended for denial under INA § 101(f) if the applicant deliberately fails to be honest in responding to questions.148 In fact, the CIS takes the position that even if the lie concerns facts which, had the CIS known about them, would not have led to a denial of the naturalization application, the application will still be recommended for denial.149 147

Matter of Marroquin, 23 I&N Dec. 705 (A.G. 2005); Matter of Roldan, 22 I&N Dec. 512 (BIA 1999); Matter of Punu, Int. Dec. 3363 (BIA 1998) (rejecting argument that Texas deferred adjudication statute was not a conviction for immigration purposes).

148

INS Interpretations 316.1(g)(3)(ii). INA § 101(f) states that a person who, during the required statutory period, (which includes the entire naturalization application process until the oath of allegiance is taken) gave false testimony for the purpose of obtaining an immigration benefit, will be found to lack good moral character. For example, a client who testifies falsely at the citizenship interview about something he did in the past, will be statutorily barred under this section from proving good moral character.

149

INS Interpretations 316.1(g)(3)(ii). Kungys v. United States, 485 U.S. 759 (1988); Berenyi v. Immigration Director, 385 U.S. 630 (1967) (applicant’s failure to answer truthfully a question about his membership in and connection with a Communist party in and of itself constituted false testimony even though a truthful answer would not have disqualified him from naturalization); Opere v. INS, 267 F.3d 10, 14 (1st Cir. 2001)

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Remind the client that the CIS will conduct various background checks, including the FBI fingerprint check, the Interagency Border Inspection System (IBIS) name check, and the FBI name check,150 as part of the naturalization process, and thus CIS most likely will know about all arrests and convictions. It is better to tell the truth about something that may not seem important because the CIS may deny the application if they find out that the person lied—even if the lie was not that significant. Often it is best for a client and his or her advocate to send in a request for the client’s criminal record, especially if the client says that he or she has been arrested in the past. They should send this request to both the FBI and the Department of Justice in the state where the client has been living and has lived. See Appendix 6-A. Obtaining all of these various rap sheets is important because the FBI federal rap sheet often does not contain accurate or complete information about state arrests and convictions. This way, the client and his or her advocate will have the criminal background information necessary to determine if it best for the client to apply for naturalization.

§ 6.3 Criminal Convictions and Conduct That Are Statutory Bars to Establishing Good Moral Character under INA § 101(f) Many of the statutory bars to proving good moral character and the grounds of deportability relate to criminal convictions. This area of the law is increasingly complicated. The immigration penalties for certain crimes—including relatively minor offenses—can be terribly severe. Penalties can include denial of the naturalization application, loss of a green card and deportation with no chance ever to enter the U.S. again, mandatory detention lasting for months or years, and in some cases federal criminal penalties (if a person illegally re-entered the U.S. after having been convicted of an aggravated felony and deported). Also, court rulings have limited the effectiveness that expungements and some other state relief have on avoiding criminal deportation grounds. For more information on this topic, please see the ILRC’s manual entitled Defending Immigrants in the Ninth Circuit: Impact of Crimes under California and Other State Laws (formerly California Criminal Law and Immigration) and the National Immigration Project of the National Lawyers’ Guild’s manual entitled Immigration Law and Crimes (West Publishing).

(false testimony statutory bar imposes no materiality requirement); In re Petition of Haniatakis, 376 F.2d 728, 730 (3rd Cir. 1967) (reversing the lower court’s grant of naturalization because applicant falsely testified under oath that she was unmarried even though the marriage itself would not have barred her application). 150

These three checks allow the CIS to determine if there are any criminal or security related issues in the applicant’s background that affect eligibility for naturalization. There has been considerable delay in name checks and this has led to suits and decisions in the District Courts. See Chapter 11.

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If you are not an attorney, accredited representative, or supervised legal worker who has expertise in this area, do not attempt to analyze the case alone. Refer the case to an expert, or consult with an expert to see if referral is required. To be safe, an expert should review the case of any person who has ever been arrested for a crime. A.

Statutory Bars to Proving Good Moral Character.

Under INA § 101(f), certain people are automatically barred from showing good moral character, and thus cannot apply for naturalization.151 Individuals are automatically disqualified from showing good moral character if during the period that good moral character is required, they have:    

151

been convicted of an aggravated felony—see discussion below at § 6.9(B); been convicted of, admitted committing, or admitted the essential elements of a drug offense (except a single conviction of possession of less than 30 grams of marijuana)— see discussion below and Appendix 6-D for further information; been convicted of, admitted committing, or admitted the essential elements of a crime involving moral turpitude152 (other than a purely political offense), with important exceptions—see discussion below;153 spent 180 days or more in jail as a result of one or more convictions, no matter when the offenses were committed—see discussion below;

Some of these grounds are found in INA § 212(a), but are incorporated into § 101(f).

152

A crime involving moral turpitude does not have a statutory definition, but has been defined by case law to refer 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.” See Matter of Danesh, 19 I&N Dec. 669, 670 (BIA 1988). In general, courts will rule that a crime involves moral turpitude if the crime, as it is defined in the criminal statute, involves intent to commit fraud; intent to commit theft where there is an intent to permanently deprive; intent to do great bodily harm; lewd intent in some sex offenses, or in some cases recklessness or malice. See also Miller v. United States Immigration and Naturalization Service, 762 F.2d 21 (3rd Cir. 1985). The petitioner had been convicted of welfare fraud, a crime of moral turpitude, and thus was disqualified from showing good moral character. See also Grageda v. U.S. Immigration and Naturalization Service, 12 F.3d 919 (9th Cir. 1993) (spousal abuse is a crime of moral turpitude). But see Jalloh v. Department of Homeland Security, 2005 WL 591246 (D Mass. 2005) (finding good moral character despite the admission of sufficient facts to constitute assault and battery where charges were later dismissed because there was a lack of knowledge that the victim was in harm’s way and thus, they were not crimes involving moral turpitude). 153 A person who has committed a crime of moral turpitude will not be barred from showing good moral character if the person committed only one crime and either: a) the person was under 18 when the crime was committed, and both the crime was committed and the person was released from confinement more than five years before the date he applies for naturalization; OR b) the maximum sentence possible for the crime was less than one year in jail and, if the person was convicted, the sentence given (regardless of time served) was six months or less. INA § 212(a)(2)(A)(ii). For more information, please see the ILRC's manual entitled Defending Immigrants in the Ninth Circuit.

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       

been convicted of two or more offenses (other than for a purely political offense) for which the applicant received a total sentence of five years or more—see discussion below;154 came to the U.S. to engage in prostitution or has engaged in or profited from the business of prostitution—see discussion below; engaged in alien smuggling—see Practice Tip below for definitions and exceptions; been a habitual drunkard;155 given false testimony (referring to sworn statements or testimony under oath) to get or retain immigration benefits; lived off of, or had two or more convictions for, illegal gambling;156 came to the U.S. (or is coming) to practice polygamy—see discussion below,157 and the CIS has acquired “reason to believe” they are or were a drug trafficker—see discussion below.158 1. Crimes Involving Moral Turpitude, Drug Offenses, and Reason to Believe He Is or Was a Drug Trafficker Bar Good Moral Character Even without a Conviction

The statutory bar under INA § 101(f)(3) may be triggered where the applicant admits the elements of a controlled substance offense or crime involving moral turpitude. This is true even where there is no conviction and the charges are later dismissed. Once the person makes the admission voluntarily, he cannot retract it.159

154

“Sentence” is defined in INA § 101(a)(48) and means any period of incarceration or confinement ordered by a court even if the sentence is suspended, such that a defendant who does not actually spend time in jail or prison could still fall under this category if the requisite sentence is imposed by the court.

155

Matter of H-, 6 I&N Dec. 614 (BIA 1955) (relying on psychiatrist testimony that on the basis of hospital records that stated that petitioner escaped the hospital several times and began drinking heavily, petitioner was a habitual drunkard). 156 The person’s primary source of income has to come from illegal gambling activities. See Matter of S-K-C, 8 I&N Dec. 185 (BIA 1958) for more information on what activities would trigger this statutory bar. 157

Polygamy does not include someone who failed to get a divorce from the first spouse, has since remarried, and, some would claim, has thus (usually secretly) committed bigamy. It refers to the belief and practice that people should have multiple spouses. Matter of G, 6 I&N Dec. 9 (1953).

158

See Nuñez-Payan v. INS, 811 F.2d 264 (5th Cir. 1987). Although a guilty plea did not constitute a “conviction” pursuant to a state rehabilitative statute, the petitioner's guilty plea to transporting drugs into the U.S. was sufficient reason for the INS to believe he was a drug trafficker. Thus he was disqualified from showing good moral character. Id. at 266.

159

Matter of I-, 4 I&N Dec. 159 (A.G. 1950); Matter of R-, 1 I&N Dec. 359 (BIA 1942).

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The standard of “reason to believe” is lower than that required for an admission to a crime. For instance, someone who CIS ever suspected dealt drugs in the past, even as a juvenile and without a conviction, can be statutorily barred from proving good moral character. CIS, however, must have more than a mere suspicion—they must have “reasonable, substantial, and probative evidence,” that the person engaged in drug trafficking.160 This means that an arrest or charge of drug trafficking by itself should not suffice as substantial evidence to prove inadmissibility and bar good moral character under “reason to believe.” The government must support the charge with other evidence such as a police report or other documentation of the drug trafficking, testimony from police, detectives, or other officers, or admissions from the person himself.161 Because any information can be used against a client under this ground, it is important that you look closely at the client’s criminal history to review any arrests and charges even if they were dismissed, to investigate the underlying facts and documents in the case, and to guard against admissions of engaging in these activities, since statements by police and others may be considered a bar to good moral character. 2. Giving False Testimony under Oath with the Subjective Intent to Obtain Immigration Benefits Is a Bar to Good Moral Character This refers only to spoken testimony, not to a written misrepresentation.162 The false testimony does not necessarily have to relate to a naturalization application, but can be testimony 160

Matter of Rico, 16 I&N Dec. 181, 185-86 (BIA 1977); Alarcon-Serrano v. INS, 220 F.3d 1116, 1119 (9th Cir. 2000). See also Singh v. Holder, 313 Fed. Appx. 57 (9th Cir. 2009) (explaining that under Ninth Circuit law, the appropriate way to measure whether an immigration judge and the BIA had reason to believe that an alien was participating in drug trafficking is to determine whether the conclusion is based on reasonable, substantial, and probative evidence); Castano v. INS, 956 F.2d 236, 238 (11th Cir. 1992) (government’s knowledge or reasonable belief that an individual has trafficked in drugs must be based on “credible evidence”); Matter of Favela, 16 I&N Dec. 753, 756 (BIA 1979).

161

Igwebuike v. Caterisano, 230 Fed. Appx. 278 (4th Cir. 2007) (unpublished) (holding that the drug sale charges for which the petitioner was acquitted were alone insufficient to constitute “reason to believe,” and that “reason to believe” charge triggering inadmissibility must be based on facts underlying an arrest and those facts must be cited in support of the charge); Lopez-Molina v. Ashcroft, 368 F.3d 1206, 1211 (9th Cir. 2004) (finding sufficient reason to believe the alien had committed illegal acts underlying previous drug trafficking arrest because the government submitted documents describing the police surveillance of the person and the person's subsequent attempt to escape with 147 pounds of marijuana); Rojas-Garcia v. Ashcroft, 339 F.3d 814 (9th Cir. 2003) (in addition to a previous arrest for drug trafficking, two undercover detectives testified that they had personally arranged drug deals with the petitioner); Matter of Favela, 16 I&N Dec. 753, 756 (BIA 1979) (applicant admitted to participating in an attempt to smuggle a kilogram of marijuana into the United States); Matter of Rico, supra (BIA did not rest on evidence of arrest for drug trafficking, but testimony of the Border Patrol Agent and the Customs Inspector that he frequently drove the car in which 162 pounds of marijuana was found as well as testimony of special agents of the Drug Enforcement Administration in the investigation of the incident).

162

See INS Interpretations 316.1(g)(3)(iii) (“false statements in an application, whether or not under oath, do not constitute “testimony”); Kungys v. United States, 485 U.S. 759, 780 (1988) (testimony is limited to oral

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that relates to obtaining any immigration benefit even if done in the distant past.163 And the false testimony need not be material in order to preclude the person from showing good moral character.164 However, if the testimony is immaterial then the Government has a more difficult statements made under oath and does not include “other types of misrepresentations or concealments, such as falsified documents or statements not made under oath”); Ordonez Torres v. Mukasey, 305 Fed.Appx. 481, 2008 WL 5424154 (9th Cir. 2008) (applicant falsely signed cancellation application, but court held that signing of the application did not meet the definition of “false testimony” as indicated under the statute); Medina v. Gonzales, 404 F.3d 628, 633-37 (2d Cir. 2005) (testimony limited to oral statements made under oath and does not include other types of misrepresentations or concealments, such as falsified documents or statements not made under oath); Beltran-Resendez v. INS, 297 F.3d 284 (5th Cir. 2000) (false statement in I-9 not covered); Torres-Guzman v. INS, 804 F.2d 531, 533 (9th Cir. 1986) (presentation of false birth certificates in application for U.S. passports not false testimony, since it is only meant to cover statements made under oath in front of a court or tribunal); Phinpathya v. INS, 673 F.2d 1013, 1018-19 (9th Cir. 1981), rev'd on other grounds, 464 U.S. 183 (1984) (false statement in application for suspension of deportation not false testimony under INA § 101(f); Matter of L-D-E-, 8 I&N Dec. 399 (BIA 1959) (false statements in application for United States passport whether or not under oath do not constitute false testimony). Although the ILRC believes that to trigger the false testimony statutory bar the statements must be verbal and not written, two cases have blurred the distinction between verbal and written misrepresentations. In United States v. Hovespian, 422 F.3d 883, 887-88 (9th Cir. 2005), the Ninth Circuit addressed the government’s argument that the applicants had given false testimony for the purpose of obtaining an immigration benefit, namely that they made inaccurate statements and omissions in their naturalization applications, and therefore they were statutorily barred from establishing good moral character. Instead of focusing on the issue that the statements were written and not oral, the court focused on whether there was a subjective intent to deceive in order to obtain immigration benefits, and determined that there was not. In Edem-Effiong v. Acosta, 2006 U.S. Dist. LEXIS 13967 (SDTX. 2006), the District Court held that the applicant was statutorily barred under 101(f)(6) for giving false testimony although the underlying misrepresentation was written. Although the underlying misrepresentation was written, the Court based its’ denial not only on this omission, but also the applicant’s false testimony at the citizenship interview when he denied that he had ever provided false or misleading information. Although both of these cases confuse written and oral misrepresentations, advocates should argue that the plain reading of the statutory bar as interpreted by CIS and the U.S. Supreme Court require that the false testimony be oral and not written. Note, however, that false written testimony can still serve as a basis to deny good moral character in the matter of discretion. See § 6.7. 163

Note, however, that the Ninth Circuit in an unpublished decision held that use of a false social security number in order to work in the U.S. does not preclude one from establishing good moral character. Jimenez v. Gonzales, 158 Fed. Appx. 7, 2005 U.S. App. LEXIS 27016 (9th Cir. 2005).

164

Kungys v. United States, 485 U.S. 759 (1988); Berenyi v. Immigration Director, 385 U.S. 630 (1967) (applicant’s failure to answer truthfully a question about his membership in and connection with a Communist party in and of itself constituted false testimony even though a truthful answer would not have disqualified him from naturalization); U.S. v. Terrazas, 570 F. Supp. 2d 550 (SD NY 2008) (stating that false testimony statutory bar does not include an implied element of materiality); Opere v. INS, 267 F.3d 10, 14 (1st Cir. 2001) (false testimony statutory bar imposes no materiality requirement); In re Petition of Haniatakis, 376 F.2d 728, 730 (3rd Cir. 1967) (reversing the lower court’s grant of naturalization because

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burden to prove such testimony was made with the subjective intent to obtain immigration benefits.165 The oral false testimony has to be made under oath. Under oath includes not only statements in administrative or judicial court proceedings such as deportation proceedings,166 but also could mean statements made in the course of routine question and answers interviews by immigration officers as long as they were made under oath.167 For instance, the BIA held that false statements that a person makes in an asylum interview constitute false testimony under oath, and bars good moral character.168 The misrepresentations must also be made with a subjective intent to deceive in order to obtain immigration benefits.169 To obtain an immigration benefit includes attempts to avoid

applicant falsely testified under oath that she was unmarried even though the marriage itself would not have barred her application). 165

See, e.g., Gonzalez-Maldonado v. Gonzales, 487 F.3d 975 (5th Cir. 2007) (Petitioner’s false testimony that he lived in California instead of New Mexico by claiming his attorney’s California address as his own was found to be immaterial and did not statutorily bar him from establishing good moral character because it had no effect on obtaining immigration benefits and the reason for giving the California address was to facilitate the process of his lawyer receiving court appearance notices).

166

Matter of Barcenas, 19 I&N Dec. 609 (BIA 1998) (false statements uttered orally under oath at deportation hearing constitutes false testimony).

167

See INS Interpretations 316.1(g)(3)(ii); Toribio-Chavez v. Holder, 611 F.3d 57 (1st Cir. 2010) (applicant provided oral testimony at his adjustment interview); Hong Ying Ye v. Holder, 2010 U.S. Dist. LEXIS 69324 (ND Ca. 2010) (false testimony under oath at naturalization interview); Medina v. Gonzales, 404 F.3d 628, 633-37 (2d Cir. 2005) (statements made to CIS officers in asylum interview); Akinwande v. Ashcroft, 380 F.3d 517, 523 (1st Cir. 2004) (false testimony made in a removal proceeding before an immigration judge); Ramos v. INS, 246 F.3d 1264, 1265-66 (9th Cir. 2001) (statement made in asylum interview); Matter of R-S-J-, 22 I&N Dec. 863 (BIA 1999) (false oral statement under oath to asylum officer); Bernal v. INS, 154 F.3d 1020 (9th Cir. 1998) (statements at naturalization interview under oath made to CIS examiner); Liwanag v. INS, 872 F.2d 684 (5th Cir. 1989) (false testimony to Service officer during an investigation); Matter of Namio, 14 I&N Dec. 412, 414 (BIA 1973) (false statement under oath to Border Patrol agent and statements that are given even in a non-quasi-judicial setting); Matter of Ngan, 10 I&N Dec. 725 (BIA 1964) (false testimony to INS officer in interview for processing of visa application). But see Phinpathya v. INS, 673 F.2d 1013, 1018-19 (9th Cir. 1981), rev’d on other grounds, 464 U.S. 183 (1984) (holding that the oral statements must be made in a “court or tribunal.”). The BIA in turn has held that an asylum officer is a member of a tribunal. See Matter of R-S-J-, supra.

168

Matter of R-S-J-, 22 I&N Dec. 863 (BIA 1999). See also Gonzalez-Maldonado v. Gonzales, 487 F.3d 975 (5th Cir. 2007) (false testimony made to an asylum officer).

169

Kungys, 485 U.S. 759, 780 (1988); Liwanag v. INS, 872 F.2d 685, 689 (5th Cir. 1989).

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losing an immigration benefit170 and a petitioner’s attempt to gain benefits for family members.171 Willful misrepresentations made for other reasons such as embarrassment, fear, or a desire for privacy are not sufficient to find that the person lacks good moral character under this section .172 There are also arguments based on various court decisions that inaccuracies or omissions resulting from faulty memory, misinterpretation of a question, or innocent mistake;173 from confusion due to misunderstandings of cultural and legal concepts and processes as they are commonly understood in this country;174 or due to diminished mental capacity175 should not bar good moral character under this section. Additional factors that can influence whether or not the person has the subjective intent to deceive include history of a person’s character and the materiality of the statement made in influencing the outcome of the case.176 170

Liwanag, supra.

171

Matter of Ngan, 10 I&N Dec. 725 (BIA 1964); Matter of W-J-W-, 7 I&N Dec. 706, 707 (BIA 1958).

172

Kungys, supra. See also Tamayo-Menchaca v. Holder, 327 Fed. Appx. 43, 45 (9th Cir. 2009).

173

Gonzalez-Maldonado v. Gonzales, 487 F.3d 975 (5th Cir. 2007) (Petitioner’s claiming lawyer’s address as his own to facilitate the receipt of immigration notices to lawyer held to be akin to a misrepresentation to avoid embarrassment, fear, or to protect one's privacy rather than a false statement made to obtain immigration benefits); United States v. Hovespian, 422 F.3d 883, 887 (9th Cir. 2005) (reversing denial of good moral character for omissions made on naturalization application because they were products of honest oversight and reasonable misinterpretations of questions); Plewa v. INS, 77 F. Supp. 2d 905 (ND Ill. 1999) (reversing adverse naturalization decision for lack of good moral character where applicant failed to list arrest because of erroneous advice given by immigration lawyer).

174

Chan v. INS, 2001 WL 521706 (ED NY 2001).

175

Zheng v. Chertoff, 2008 WL 4899342 (ED Pa. 2008) (applicant’s diminished mental capacity also called into question the assertion that he made misrepresentations with the intent of receiving immigration benefits).

176

In Gonzalez-Maldonado v. Gonzales, 487 F.3d 975 (5th Cir. 2007), the Fifth Circuit was influenced by the fact that the record demonstrated Petitioner’s spotless record as an employee, husband, and father and lacked any evidence of bad moral character in concluding that Petitioner did not have the subjective intent to deceive. The Court also held that the Government had a tougher burden to prove Petitioner’s subjective intent to deceive since his misrepresentation of his address, which was really his lawyer’s, was not material. The misrepresentation was found to be made to facilitate the immigration process and not to influence the asylum officer’s decision in the case. In Zheng v. Chertoff, 2008 WL 4899342 (ED Pa. 2008), the court explained that it was unclear what benefit the applicant, who had diminished mental capacity, stood to gain by denying that he previously made contradictory statements, especially when the average person in his position would have realized that USCIS was already aware of the contradictions in his record when it questioned him. Moreover, the court noted that the applicant had no arrests, was married with two children, and had maintained a steady work history since his arrival to the United States, and so to prevent him from naturalizing because he lied about not lying in the past, when the record reflected not only his hardworking history, but also his limited intelligence, would amount to injustice.

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An applicant should be able to avoid triggering the false testimony statutory bar if he or she makes a voluntary and timely retraction of the false statement. Under Board of Immigration Appeals precedent, effective retraction is limited to the situation where the applicant retracts his false testimony prior to completion of the statement.177 The Third Circuit in an unpublished opinion has gone even further to hold that a voluntary correction of false testimony made almost two years after it was presented was effective because it came prior to exposure by the government and the misstatements would not have been revealed but for the admission.178 However, CIS may not agree with this interpretation, since at least for inadmissibility purposes, it considers a retraction timely only if it is voluntary and without delay.179 CIS often charges false testimony based on the applicant’s failure to disclose information on the N-400 application or in the naturalization interview. For instance, in one case CIS charged an individual with providing false testimony in answering the question on the N-400 that asks whether or not the person has ever committed a crime for which he or she has not been arrested.180 Advocates should argue that any false information provided in the N-400 application does not trigger the false testimony statutory bar since it only applies to oral misrepresentations and not written ones. Nonetheless, individuals should be careful in how they answer similar questions at the interview so as to avoid making any oral false statements. Some court decisions 177

Matter of M-, 9 I&N Dec. 118 (BIA 1960). Respondent in an interview with an immigration officer at an airport tried to establish that he was lawfully residing in the U.S., but before completion of his statement he volunteered that he had entered the U.S. unlawfully. Based on this timely retraction, the court found that he was not barred from establishing good moral character. Compare with Matter of Namio, 14 I&N Dec. 412, 414 (BIA 1973) (retraction after a year and where disclosure of falsity of statements was imminent not timely nor voluntary); Matter of Ngan, 10 I&N Dec. 725, 727 (BIA 1964) (retraction made three years later not timely); Llanos-Senarillos v. U.S., 177 F.2d 164, 165-66 (9th Cir. 1949) (retraction during examination not timely or voluntary where witness realized that the false testimony would not deceive).

178

Costa v. Attorney General of the United States, 2007 U.S. App. LEXIS 28608 (3rd Cir. 2007) (unpublished). In Costa, the petitioner presented a false asylum claim and did not retract his statements to the asylum officer, but to the immigration judge during removal proceedings almost two years later. It is important to note that a driving factor in the Court’s decision was that the Immigration Judge would have found him eligible for cancellation of removal but for the false testimony claim since there was evidence that his deportation would constitute exceptional and unusual hardship to his wife and two children since the children has already endured the trauma of the loss of their paternal father. 179 CIS Interoffice Memorandum dated March 3, 2009, titled Section 212(a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators, p. 21. 180

Lora v. USCIS, U.S. Dist. LEXIS 28523 (ED NY April 18, 2007). In this case, the judge rejected CIS’ argument that Lora gave false testimony by answering no to a question on the N-400 that asks whether a person has ever committed a crime for which he or she has not been arrested since Lora admitted to selling drugs on five occasions, but was only arrested and prosecuted for two of the five sales. The court found that he did not give false testimony because the case alleging two of the sales covered all five sales he made.

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have held that failure to disclose arrests in certain circumstances does not trigger this statutory bar.181 Advocates should also be aware of any false claims of U.S. citizenship made by the client since they could potentially trigger this statutory bar and other immigration consequences such as deportation. See discussion in § 6.9 and Appendix 6-D. Generally, when someone makes a false claim of U.S. citizenship, he does so in writing such as a signature on an employment application or voter registration card that specifically asks the question “Are you a U.S. citizen?” or a declaration under oath or penalty of perjury, in writing, that the person was a U.S. citizen. These written misrepresentations will not trigger this bar. If, however, false claims to U.S. citizenship were made orally and under oath, even in response to questioning by an officer, the person will be barred from establishing good moral character.182 There is an exception, however, for individuals who meet the following requirements: 1) Each natural/adopted parent of the person is or was a citizen. 2) The person began to reside permanently in the U.S. before the age of sixteen. 3) The person reasonably believed at the time of such statement, violation, or claim that he or she was a citizen of the United States. (A reasonable belief must take into consideration the totality of the circumstances.)183 In addition, until April 3, 2009 the I-9 form required for employment asked, “Are you a citizen or a national.” CIS recognizes that the fact that someone answered this question “yes” does not necessarily mean that he or she has made a false claim to U.S. citizenship.184 However, if an individual states that he or she meant to claim citizenship, then he or she would be guilty of a false claim.185 CIS also recognizes that a timely retraction will eliminate a false claim to U.S. citizenship.186 Again, the retraction must be timely and without delay.187 181

See, e.g., Lora, supra; Plewa v. INS, 77 F. Supp. 2d 905 (ND Ill. 1999) (failure to disclose arrest based on wrongful advice by attorney did not preclude good moral character finding). 182 See, e.g., United States v. Damrah, 334 F. Supp. 2d 967 (ND Ohio 2004) (affirming denaturalization of defendant who unlawfully obtained U.S. citizenship by making false statements to INS official when he applied for citizenship). 183

Child Citizenship Act of 2000, Pub. L. No. 106-395 (October 30, 2000).

184

CIS Interoffice Memorandum dated March 3, 2009, p. 26, citing United States v. Karaouni, 379 F.3d 1139 (9th Cir. 2004).

185

See Ateka v. Ashcroft, 384 F.3d 954 (8th Cir. 2004) and Rodriguez v. Mukasey, 519 F.3d 773 (8th Cir. 2008).

186

CIS Interoffice Memorandum dated March 3, 2009, p. 28, citing Matter of R-R-, 3 I&N Dec. 832 (BIA 1949), and Matter of M-, 9 I&N Dec. 118 (BIA 1960).

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3. A Person Who Is Inadmissible for Polygamy Is Barred from Establishing Good Moral Character Note that polygamy (the ideology or religious practice of having many wives) is different from bigamy (the crime of being married to more than one person at a time). Only people who believe in the ideology of polygamy and intend to practice it in the U.S. are barred from establishing good moral character.188 4. Effect of Drunk Driving Convictions on Good Moral Character Over the past several years much attention has been paid to what the immigration consequences of drunk driving convictions (driving under the influence or “DUIs”)189 should be. The CIS has not issued a national policy on this issue. Therefore it has been mostly up to each district office, with influence from case law, to develop its own position on the effect DUIs should have on the ability of a naturalization applicant to establish good moral character. Some districts treat DUIs merely as a factor in the discretionary determination of good moral character while others also consider DUIs to be evidence that the person is a habitual drunkard and hence barred from establishing good moral character.190 A survey of case law shows that a single driving under the influence conviction does not statutorily bar an applicant from good moral character when he or she has been candid about the conviction.191 One court has gone even 187

Id.

188

See, e.g., Matter of G-, 6 I&N Dec. (BIA 1953).

189

In some states drunk driving offenses are referred to as “Driving while Intoxicated” or “DWI.”

190

In Rico v. INS, 262 F.Supp.2d 6 (ED NY 2003), the court held that the applicant’s DUI conviction, failure to accept responsibility for his past crimes, failure to establish his claim of rehabilitation, and lack of candor, taken together, precluded a finding of good moral character in accord with current moral conventions, as required for naturalization. In Le v. Elwood, 2003 WL 21250632 (ED Pa. 2003), the court explained that while by themselves the applicant’s two DUI convictions could not disqualify him from being a person of “good moral character,” they were negative factors, and coupled with the fact that material portions of the applicant’s testimony lacked credibility to a serious degree, the naturalization application could be denied.

191

Rangel v. Barrows, 2008 WL 4441974 (ED Tex. 2008) (holding that in the absence of aggravating factors, a single DUI conviction did not suffice to prevent an applicant from naturalization based on a lack of good moral character, where in this case, the applicant accepted responsibility for his conviction and was involved with his church, was married with a young son, and had been steadily employed); Ragoonanan v. USCIS, 2007 U.S. Dist. LEXIS 92922 at *10-11 (D. Minn. 2007) (reversing CIS statutory denial of good moral character that stated that applicant posed a threat to the property, safety, and welfare of others based on a single driving under the influence conviction resulting in a year probation); Rico v. INS, 262 F. Supp. 2d 6, 10 (ED NY 2003) (denying naturalization application where DUI conviction fell in five-year statutory period and was one of five DUI convictions in a ten year period); Puciaty v. United States DOJ, 125 F. Supp. 2d 1035, 1039-40 (D. Haw. 2000) (granting naturalization where applicant had two DUI pleas and

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further finding that there is no authority for CIS to determine that a single DUI conviction is a non-statutory basis to deny for lack of good moral character.192 However, the BIA and some courts have held that conviction of an offense that includes the elements of driving under the influence with the knowledge that one’s driver’s license has been suspended or restricted due to a prior DUI offense is a crime of moral turpitude, which, unless it comes within the petty offense exception, is a statutory bar to establishing good moral character.193 In the past the BIA held that a DUI conviction with a sentence of a year or more imposed was an aggravated felony as a “crime of violence,” and deported hundreds of people for such convictions. In 2004 the Supreme Court held that a DUI—even one that results in injury—is not a crime of violence, not a ground of deportability as an aggravated felony, and therefore not a permanent bar to establishing the good moral character required for naturalization.194 See discussion in § 6.9(B). For a more thorough discussion of the effects of DUIs on a person’s immigration status see Appendix 6-D. 5. A Person Who Has Actually Spent 180 Days or More in a Penal Institution during the Statutory Period and as a Result of One or More Convictions195 Is Barred from Showing Good Moral Character This statutory bar requires that the person serve all of the 180 days during the statutory period. If the client has a sentence of confinement of over 180 days, because the statutory period unpaid civil judgment); Le v. Elwood, 2003 U.S. Dist. LEXIS 6635 at *2 (ED Pa. 2003) (denying naturalization where applicant failed to disclose two DUI convictions). 192

Ragoonanan, supra at *9.

193

The Ninth Circuit in Marmolejo-Campos v. Gonzales, 503 F.3d 922 (9th Cir. 2007) deferred to the BIA’s decision in Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999) that the Arizona offense of aggravated driving under the influence, which prohibits driving under the influence while knowingly driving on a suspended, canceled, revoked or limited license to drive, is a crime involving moral turpitude. However, the offense is divisible: if the record shows that the person was convicted of this offense and was not driving at the time, e.g., sitting in a parked car, then it is not a crime involving moral turpitude. See Marmolejo-Campos, supra at 926, clarifying Hernandez-Martinez v. Ashcroft, 329 F.3d 1117, 1118 (9th Cir. 2003).

194

Leocal v. Ashcroft, 543 U.S. 1 (2004) (negligent driving under the influence is not an aggravated felony even if a sentence of one year or more is imposed, because it does not require the intent to use violent force required for a “crime of violence.”). See also discussion in Appendix 6-D. As discussed above, however, a DUI offense that also has as an element knowledge that the person was not permitted to drive at all. In Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001), the BIA held that a conviction under another Arizona DUI statute where intent was not an element to the crime was not a crime of moral turpitude. See discussion at § 6.8.

195

A conviction for immigration purposes is defined at INA § 101(a)(48). See also Appendix 6-D.

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keeps moving on, an applicant can wait until the remaining days of custody in the period drops below 180 days and then file for naturalization. This is true regardless of whether the crime or crimes were committed within the statutory period and the conviction(s) also occurred within this period. (Note, however, that the person might still be denied naturalization for failing to show good moral character because the crime fell under one of the statutory bars to good moral character, for committing an unlawful act during the statutory period, unless he can show extenuating circumstances, or because the CIS determines in its discretion he doesn’t have good moral character. See § 6.3(B)(5).) Example: In 2005, Raul was convicted of a crime and was sentenced to jail for 200 days. He served the 200 days in jail that summer and was released on September 1, 2005. Raul does not have to wait until September 1, 2010, five years after the end of his sentence, to apply for citizenship because he will already have less than 180 days of confinement during the statutory period before that time. In fact, Raul can apply at the very beginning of August 2010 and not be statutorily barred. To be denied naturalization under this section, the naturalization applicant has to actually serve 180 days in prison or jail as a result of one or more convictions.196 Only the actual time the person spent in custody, and not the sentence imposed by the judge, is the measure. Thus if a person is sentenced to seven months but is released after 120 days due to good behavior or jail overcrowding, the person has served 120 days for this purpose. Custody time includes the time served on the original sentence as well as on a probation violation. It does not include time merely spent on probation,197 The time spent in custody must be a result of a conviction or convictions. The time in custody will include any time spent in pre-detention (that is, detention while awaiting trial and/or the disposition of the sentence) only if it is later credited as time served in the sentence imposed as a result of the conviction.198 For example, a person who serves 180 days while his case is

196

Gomez-Lopez v. Ashcroft, 393 F.3d 882, 885-86 (9th Cir. 2005); Rivera-Zurita v. INS, 946 F.2d 118, 122 (10th Cir. 1991) (placement in custody of sheriff as well as thirty-day confinement in jail count as confinement to a penal institution); Matter of Valdovinos, 18 I&N Dec. 343, 344 (BIA 1982) (incarceration in a minimal security area with work furlough counts towards the 180 days).

197

Matter of Gantus-Bobadilla, 13 I&N Dec. 777 (BIA 1971), rev’d on other grounds, Matter of Franklin, 20 I&N Dec. Dec. 867 (BIA 1994).

198

Fontilea v. Mukasey, 275 Fed. Appx. 642, 648 (9th Cir. 2008) (holding that credit for time spent in custody be considered as confinement as a result of conviction); Arreguin-Moreno v. Mukasey, 511 F.3d 1229 (9th Cir. 2007) (petitioner’s pre-detention time of 18 months counted towards the 180 days although at sentencing she received credit for the 18 months she served and thereafter only spent two or three weeks in custody); Matter of Valdovinos, 18 I&N Dec. 343 (BIA 1982) (holding that pre-sentence confinement

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pending, is convicted, and during sentencing is credited for those 180 days served, and is subsequently released even though he spent no time in custody after sentencing, is still barred by this ground. If the person had “waived credit for time served,” the time would not have counted. Also, where no conviction results the time a person spent in pre-detention before dismissal of the charges does not count towards the 180 days.199 Time spent in jail or prison from different convictions can be added together to make up the 180 days or more.200 Example: Sandra is applying for naturalization. Over the last five years she has been convicted once for petty theft and twice for driving under the influence of alcohol (DUI). For her last DUI conviction she was sentenced to 200 days in jail. With time off for good behavior, she got out of jail after 140 days. If she adds those 140 days to all the other days she has spent in jail for her convictions, the total is 179 days in jail over the last five years. Sandra is still eligible to show good moral character and can apply for naturalization. If she had been in jail more than 179 days, she would not be eligible. The key here is not what sentence was imposed, but how many days she actually spent incarcerated. Situations such as these illustrate the importance of taking the time to explain the law to your client and of including your client as much as possible in the entire process. If the “180 day rule” had not been explained to Sandra, she may only tell you that she was sentenced to 200 days in jail, without telling you that she only spent 140 days in jail. You might then tell her that she is ineligible for naturalization, when under the “180 day rule” she is not ineligible. Sandra may still have problems with discretionary good moral character because of her three convictions. Showing positive equities such as successful participation in Alcoholics Anonymous and volunteer activities may help Sandra convince the CIS that she has good moral character. Note that while the BIA in the past has held that a DUI with a sentence of a year or more imposed is an aggravated felony, the United States Supreme Court has overruled this decision and held that it is not. See Appendix 6-D for further discussion. Finally, Sandra’s conviction for theft is a crime involving moral turpitude, if it involves an intent to permanently deprive. See discussion in Appendix 6-D. Someone must analyze how that affects her case, depending upon when the conviction occurred, and what sentence was possible and was imposed. Sandra could actually be deportable, depending on the circumstances.

occurring before a conviction, which in some cases is later credited when determining the release from custody will be counted for purposes of the 180 days statutory bar). 199

Gomez-Lopez v. Ashcroft, supra.

200

Valdovinos, supra.

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Appendix 6-C contains a flyer for naturalization applicants that includes some of the ways in which one can be denied naturalization because of a lack of good moral character. It is written in English and Spanish. 6. Multiple Criminal Convictions with an Aggregate Sentence of Five Years or More To be subject to this statutory bar the applicant must (1) have been convicted of two or more crimes (other than purely political offenses), and (2) the aggregate period that the person was sentenced to imprisonment regardless of whether they actually spent that time confined or not is five years or more. These convictions do not have to be for a crime involving moral turpitude or any other particular type of offense, and can result from the same criminal case (“single scheme of criminal misconduct”), and still trigger this bar. 7. Prostitution A person who comes to the U.S. to engage in prostitution or has worked as a prostitute abroad within ten years of application for naturalization is barred from establishing good moral character. The State Department defines prostitution as “engaging in promiscuous sexual intercourse for hire.”201 The Ninth Circuit has held that conduct that falls outside of this definition, such as sexual conduct other than intercourse for hire, does not fall within this section.202 Also, a casual, one-time encounter or one conviction for a single act of prostitution does not amount to “engaging in” prostitution according to case law and State Department regulations.203

201

22 CFR § 40.24(b). See also Matter of R-M-, 7 I&N Dec. 392 (BIA 1957) (prostitution not limited to just procuring or importing prostitutes but also covers procuring customers for prostitutes for purpose of sexual intercourse); Matter of C-, 7 I&N Dec. 432 (BIA 1957) (nurses who routinely work at prostitution houses do not fall within this ground if the purpose of their work is to promote a foreign country’s health regulations); Yang v. Mukasey, 279 Fed. Appx. 575 (9th Cir. 2008) (BIA erred in concluding that petitioner “engaged in prostitution” where the evidence relied upon by the BIA did not establish that she performed sexual intercourse for hire).

202

Kepilino v. Gonzales, 454 F.3d 1057 (9th Cir. 2006).

See Matter of T., 6 I&N Dec. 474 (BIA 1955). See also Matter of Gonzalez-Zoquiapan 24 I&N Dec. 549 (BIA 2008) (holding that a single act of soliciting prostitution on one's own behalf does not render one inadmissible under INA § 212(a)(2)(D)(ii), and also does not bar one from establishing good moral character under INA § 101(f)(3)). State Department regulations, issued to guide officers granting visas abroad, provide that “[t]he term ‘prostitution’ means engaging in promiscuous sexual intercourse for hire. A finding that a noncitizen has 'engaged' in prostitution must be based on elements of continuity and regularity, indicating a pattern of behavior or deliberate course of conduct entered into primarily for financial gain or for other considerations of material value as distinguished from the commission of casual or isolated acts.” 22 CFR § 40.24. 203

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This statutory bar does not just punish “criminal behavior,” but even work as a prostitute in countries where it is legally permitted. A conviction is not needed to establish that the person has regularly engaged in prostitution. Additionally, a conviction for prostitution is not necessarily conclusive evidence that the person falls within this section where the offense covers broader acts than the prostitution definition was intended to cover.204 Advocates should nonetheless guard against admissions of engaging in prostitution, since statements by police and others may be considered in the naturalization process to bar good moral character. Note also that an admission or conviction of prostitution (but not necessarily as a customer) will trigger the statutory bar for a crime involving moral turpitude (see note 1 above). 8. Alien Smuggling The question of alien smuggling has presented a problem for some naturalization applicants. Alien smuggling can pose a problem for these applicants in a few ways: a conviction for alien smuggling can be an aggravated felony, and a finding of alien smuggling, even with not conviction, can trigger deportation, and can be a statutory bar to establishing good moral character. First, a conviction for alien smuggling of any kind is an aggravated felony, which triggers both mandatory deportation and the permanent bar to establishing good moral character, unless it was a first offense for smuggling only a parent, spouse or child. See INA § 101(a)(43)(N); see also aggravated felony discussion at § 6.9 (B). Second, a person who commits alien smuggling— even if there is no conviction—can be found deportable (if it occurred at the time of any entry, prior to any entry, or within five years of any entry)205 or inadmissible.206 Finally, a person who commits alien smuggling within the previous five years (or three years, if applying as the spouse of a U.S. citizen)—even if there is no conviction—is barred from establishing good moral character under INA § 101(f).207 Unlike the crime involving moral turpitude and controlled substance good moral character bars discussed above, the person does not have to admit to or be convicted of alien smuggling to be barred from establishing good moral character.208 204

In Kepilino, supra, the Ninth Circuit held that a Hawaii prostitution conviction did not trigger inadmissibility under INA § 212(a)(2)(D)(i) (which in turn is referenced in the statutory bar for good moral character) for coming to the U.S. to engage in prostitution because the offense criminalized sexual conduct (including touching of another’s intimate parts through clothing) for a fee and covered more acts than what was intended to be encompassed by the definition of prostitution.

205

INA § 237(a)(1)(E).

206

INA § 212(a)(6)(E)(i).

207

The statutory bar will be triggered under the alien smuggling category. Alien smuggling is not a crime involving moral turpitude and therefore, will not trigger the statutory bar under this ground. Matter of Tiwari, 19 I&N Dec. 875, 880-81 (BIA 1989).

208

But in Angel v. Chertoff, 2007 U.S. Dist. LEXIS 78084 at *2 and 14 (SD Ill. 2007), the court held that CIS could not support an adverse finding of good moral character based on the fact that DHS brought removal

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The definition of alien smuggling is very broad. Any person who knowingly has “encouraged, induced, assisted, abetted, or aided” any other person to enter the U.S. (or to try to enter) is an “alien smuggler.” This definition requires an affirmative act of help, assistance, or encouragement, such as paying alien smugglers, making the arrangements to get aliens across the border, or providing false information and documents to immigration authorities.209 Alien smuggling has extended beyond providing affirmative assistance after a person enters the U.S. For example, one Circuit Court held that alien smuggling includes an agreement by a family member to pay a smuggler after the person is already in the U.S., but before the smuggler releases or ceases to transport the person.210 There are arguments, however, that alien smuggling does not cover the acts of merely harboring or transporting others within the United States.211 The CIS can raise this issue in the case of naturalization applicants who may have helped others enter the United States without inspection. Clients must be made aware of this because it is possible that an applicant will be asked questions about whether she has helped friends or relatives (including children) enter the country unlawfully. Remember, however, that even if the applicant does not admit to alien smuggling, if the CIS has evidence that the applicant was an alien smuggler, it could find the applicant barred from establishing good moral character. The only exception to the statutory bar to establishing good moral character based on alien smuggling is where the naturalization applicant could have qualified for Family Unity under the 1990 Act212 and, before May 5, 1988, encouraged, induced, assisted, abetted, or aided only his proceedings against the applicant twice for assisting illegal immigrants, who worked for his company, in entering the country because both cases were dismissed and thus, were “unproven accusations.” 209

Altamirano v. Gonzales, 427 F.3d 586, 591-96 (9th Cir. 2005) (reversing finding of inadmissibility of alien smuggling solely on presence in vehicle knowing that someone was hiding in the trunk); Tapucu v. Gonzales, 399 F.3d 736 (6th Cir. 2005) (reversing finding of inadmissibility of legal permanent resident who shared driving responsibilities with three friends, one whom was with an illegal immigrant where lawful permanent resident believed he could travel back and forth across the border because he was in the process of applying for a green card). 210 Covarrubias v. Gonzales, 487 F.3d 742 (9th Cir. 2007) (upholding a lack of good moral character finding for petitioner who knew that his brother planned on crossing the border illegally, but did not agree to help him until after he had crossed the border, but before the smuggler released and ceased to transport him, by collecting money from their siblings and arranging payment to the smuggler). 211

See, e.g., Rodriguez-Gutierrez v. INS, 59 F.3d 504, 509 n. 3 (5th Cir. 1995) (conviction for illegally transporting undocumented immigrants does not trigger inadmissibility because the statute only refers to aiding and abetting); Matter of I-M-, 7 I&N Dec. 389 (BIA 1957) (transporting within the U.S. undocumented persons does not necessarily make the person transporting them inadmissible).

212

To qualify under this Act the person must have been the parent, spouse, or child of someone legalized through the amnesty program; been physically present in the U.S. on May 5, 1988; immigrated as a second preference, Legalization beneficiary, or an immediate relative, or be someone who is applying for Family Unity.

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or her spouse, parent, son, or daughter to enter the U.S. illegally213 If the applicant qualifies for this exception, he will not fall within the statutory bar for good moral character. If the CIS finds that the applicant was an alien smuggler and he cannot fit within this narrow exception, however, the CIS may statutorily bar the applicant from establishing good moral character for the requisite statutory period, and, if the action comes within the alien smuggling deportation ground, may refer the person to removal proceedings. In contrast to the above exception, a discretionary waiver of inadmissibility or deportability for alien smuggling will not help a naturalization applicant establish good moral character. The Ninth Circuit reversed an earlier opinion, which had suggested that a smuggling waiver could prevent the smuggling from being a statutory bar to good moral character.214 Instead, the person will have to amass another five, or three, years of good moral character after the smuggling before he or she will be eligible to naturalize. Alien Smuggling Deportation Ground. (Note: this discussion is limited to the alien smuggling deportation ground and does not include the aggravated felony ground of deportation mentioned above.) A person who commits alien smuggling, even if there is no conviction, might not only be statutorily barred, but also be found deportable if it occurred at the time of any entry, prior to any entry, or within five years of any entry.215 There is, however, a discretionary waiver to deportation.216 The waiver is available to lawful permanent residents (LPRs) who helped smuggle a qualifying relative.217 More importantly, the waiver is only available if the lawful

213

INA § 212(a)(6)(E)(ii).

214

INA § 101(f)(3), “… a member of one or more of the classes of persons, whether inadmissible or not, described in paragraphs … (6)(E)”…) (emphasis added). See Sanchez v. Holder, 560 F.3d 1028, 1032 (9th Cir. 2009) (“8 USCS § 1182(d)(11) authorizes the Attorney General to waive inadmissibility if an alien has only smuggled immediate family members, but does not authorize the Attorney General to waive the ‘alien smuggling’ bar to establishing good moral character for purposes of cancellation of removal. A statute giving the Attorney General discretion to grant relief from inadmissibility does not give the Attorney General discretion to grant relief from removal.”).

215

INA § 237(a)(1)(E). See, e.g. Barradas v. Holder, 582 F.3d 754 (7th Cir. 2009).

216

Note, that some persons might not be deportable in the first place if they fit within a limited exemption and therefore, do not need to even obtain this discretionary waiver. The waiver applies to individuals who immigrated through the IRCA Family Unity Legalization Program. INA § 237(a)(1)(E)(ii).

217

INA § 237(a)(1)(E)(iii).

Note that even if the deportability waiver applies, the inadmissibility waiver for good moral

character may not transfer for alien smuggling.

Sanchez v. Holder, 560 F.3d at 1032 (overruling Moran v. Ashcroft, 395 F.3d 1089 (9th Cir. 2005), and stating that an applicant for cancellation of removal cannot demonstrate good moral character notwithstanding participation in family-only smuggling, based upon the plain meaning of 8 USCS §§ 1229b(b), 1101(f), and 1182(a)(6)(E)). See also Appendix 6-D, § 1.12 for more on alien smuggling.

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permanent resident encouraged, assisted, abetted or aided the person’s spouse,218 parent, son or daughter (and no other individual) at the time to enter the country in violation of the law.219 The person must have had that status at the time the smuggling occurred. Therefore, someone who smuggles his alien fiancé and later marries her would not be eligible for this waiver. See Appendix 6-D, § 1.11 for more on alien smuggling. Most lawful permanent residents can only request the smuggling waiver from an immigration judge.220 Therefore in order to take advantage of the waiver, a naturalization applicant who discloses the fact that he or she smuggled a qualified relative, or whose record indicates that he or she did so in the past, would have to be placed in removal proceedings in order to obtain the waiver. Since the waiver is discretionary, there is no guarantee that the judge would grant the waiver instead of ordering the individual deported. The applicant might decide to apply for naturalization and risk being placed into removal proceedings if he or she has a strong waiver case. After careful discussion with an experienced immigration attorney, the applicant could decide to go this route because the CIS might grant the naturalization application without referring the person to removal proceedings, or, if the CIS denies naturalization, the applicant could have a good chance of obtaining relief from deportation while in immigration court. Example: Alicia, a lawful permanent resident helped her son cross the border illegally into the United States ten years ago. Alicia went to Mexico, obtained a false green card for her son and tried to re-enter the United States with him. The Immigration Service stopped Alicia and her son at the border. Alicia’s car was confiscated and her son was returned to Mexico. The Immigration Service released Alicia and eventually returned her car. In reviewing Alicia’s file, the CIS naturalization adjudicator sees that Alicia attempted to smuggle her son into the United States. Although Alicia is not statutorily ineligible to establish good moral character (the smuggling offense took place more than five years ago and thus outside the statutory period), she is deportable.221 Therefore, instead of granting 218

For acts of smuggling occurring after May 5, 1988, the “family member” waiver does not apply to a spouse who was not a spouse at the time of the smuggling. Moran v.Ashcroft, 395 F.3d 1089 (9th Cir. 2005) (rev’d on other grounds).

219

See, e.g., De Batista v. Gonzales, 494 F.3d 67 (2d Cir. 2007) (explaining that even if the alien smuggler treated her nephew functionally like her son, § 1182(d)(11) referred to a child under 21 years who stood in a specified biological or adopted relationship to the alien, and holding that the alien smuggler could not receive a waiver of inadmissibility under 8 USCS § 1182(d)(11) because the child she attempted to smuggle was not her biological or adopted son).

220

There is a limited exemption (a waiver request is not necessary) from the smuggling ground of deportation for individuals who immigrated through the IRCA Family Unity Legalization Program. INA § 237(a)(1)(E)(ii).

221

Alicia is deportable for having been inadmissible at the time of entry. INA § 237(a)(1)(A).

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the naturalization application, the officer placed Alicia in removal proceedings. Alicia will need to ask the judge to grant her a waiver for having smuggled her son. CIS has some discretion in deciding whether or not to place a person in removal proceedings. In sympathetic cases such as Alicia’s, the CIS often may choose to deny naturalization but not to place the person in removal proceedings. It is also possible that the deportable person might be naturalized even without being put into removal proceedings because the naturalization officer thinks the person has a strong waiver case and will be granted relief by an immigration judge. However, individuals who have smuggled relatives in the past and who are applying for naturalization need to be aware of the risks of applying for naturalization, including that the CIS could choose to place them in removal proceedings.

§ 6.4 Non-Citizen Voting With very few exceptions,222 only U.S. citizens are qualified to vote in federal, state, and local elections. Consequently, when a non-citizen votes in an election, he or she may face adverse immigration consequences: grounds of inadmissibility or deportability; criminal sanctions; or a finding of bad moral character for naturalization purposes. A.

Effect of Non-Citizen Voting on Naturalization

CIS has provided guidance for adjudicators on handling naturalization applications of aliens who have unlawfully voted or have falsely represented themselves as being U.S. citizens for the purpose of registering to vote or by voting.223 The analysis a CIS adjudicator should follow includes: 

The adjudicator should first determine if the non-citizen: (1) actually voted in violation of the relevant election law, or (2) made a false claim of citizenship when registering to vote or voting in any federal, state, local election any time on or after 9/30/96.224

222

Some municipalities allow lawful permanent residents and/or nonresident aliens to vote in municipal elections. For more information, see Virginia Harper-Ho, Noncitizen Voting Rights: The History, the Law and Current Prospects for Change, 18 LAW & INEQ. 271 (Summer 2000); Tara Kini, Sharing the Vote: Noncitizen Voting Rights in Local School Board Elections, 93 CALIF. L. REV. 271 (Jan. 2005).

223

Policy Memorandum No. 86, William Yates, Procedures for Handling Naturalization Applications of Aliens Who Voted Unlawfully of Falsely Represented Themselves as U.S. Citizens by Voting or Registering to Vote (May 7, 2002), See also 87 Interpreter Releases 1252 (June 21, 2010).

224

Policy Memorandum No. 86, supra, at 4.

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B.



If either (1) or (2) applies, then the non-citizen is removable, unless an exception under INA 212(a) or 237(a) applies.



If the non-citizen does not meet an exception, then the adjudicator should determine whether the applicant’s case merits prosecutorial discretion, which is further explained in a November 17, 2000 memo by then Immigration and Naturalization Service Commissioner Doris Meissner titled “Exercising Prosecutorial Discretion.”225



If the applicant merits prosecutorial discretion, the adjudicator should proceed with adjudication of the N-400 and must assess the applicant’s eligibility for naturalization, looking at whether the applicant’s conduct precludes a finding of good moral character and determining whether the applicant is exempt from a finding that he or she does not have good moral character based on the exceptions in INA 101(f).226 Unlawful Voting

In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) added inadmissibility and deportability provisions to the INA to address unlawful voting.227 This ground, is retroactive and therefore applies to voting before, on, or after September 30, 1996. Non-citizens who violate these provisions may also face criminal sanctions, as IIRIRA created 18 USC § 611, which establishes criminal penalties for aliens who have voted in any federal election. It should be cautioned that a non-citizen who votes unlawfully but who has not been convicted under 18 USC § 611 may still face removal charges.228 The Child Citizenship Act of 2000 (CCA) produced a narrow exception to both grounds of inadmissibility and deportability that applies only if the non-citizen satisfies all of the following conditions: 1) each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), 2) the alien permanently resided in the United States prior to attaining the age of 16, and 225

Doris Meissner, Dep’t of Justice, Immigration and Naturalization Service, Exercising Prosecutorial Discretion (Nov. 17, 2000), available at www.miracoalition.org/uploads/V_/hg/V_hgJbpG0Xs0mZLNg7CDQ/Prosecutorial-Discretion1.pdf.

226

Policy Memorandum No. 86, supra, at 4.

227

INA § 212(a)(10)(D)(i) states that “[a]ny alien who has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation is inadmissible.” INA § 237(a)(6)(A) explains that “[a]ny alien who has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation is deportable.”

228

See Policy Memorandum No. 86, supra, at 2.

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3) the alien reasonably believed at the time of such violation that he or she was a citizen.229 In addition, the CCA also established an exception to the criminal provision, 18 USC § 611(c), for lawful permanent residents who resided in the United States prior to age 16, have U.S. citizen parents, and who reasonably believed at the time of voting in violation of the law that he or she was a U.S. citizen.230 The criminal provision exception only applies to convictions that became final on or after October 30, 2000, when the CCA was enacted.231 1. What Constitutes Unlawful Voting? The definition of unlawful voting in both INA § 212(a)(10)(D)(i) and INA § 237(a)(6) does not require guilty knowledge, and it may even include people who innocently believed that they were entitled to vote (a not uncommon occurrence). Whether an applicant has voted in violation of the relevant election law depends on the provisions governing voting, eligibility to vote, and penalties for voting unlawfully, which vary by jurisdiction and may or may not include a specific intent requirement.232 The act of voting alone does not establish that the applicant voted unlawfully, and so adjudicators must determine the applicable election law. If the election law penalizes the actual act of voting, the fact that applicant has voted suffices to establish that he has voted unlawfully. On the other hand, if the law penalizes the act of voting only upon the additional finding that the applicant acted with some kind of intent, then adjudicators should first determine whether the applicant had the requisite intent for unlawful voting under the election law.233 Even if the state law has no “knowing” or 229

See INA §§ 212(a)(10)(D)(ii) and 237(a)(6)(B), as amended by Child Citizenship Act of 2000 (CCA), Pub. L. 106-395 § 201 (b), (c), 114 Stat. 1631 (Oct. 30, 2000).

230

See Policy Memorandum No. 86, supra, at 2.

231

Id.

232

Id. at 5. See, e.g., Cal. Elec. Code § 18560(a) (“Every person is guilty of a crime punishable by imprisonment in the state prison for 16 months or two or three years, or in county jail not exceeding one year, who … [n]ot being entitled to vote at an election, fraudulently votes or fraudulently attempts to vote at that election.”); Fl. Elec. Code § 104.15 (2010) (“Whoever, knowing he or she is not a qualified elector, willfully votes at any election is guilty of a felony of the third degree.”); Haw. Elec. Code § 19-3.5.(2) (“The following persons shall be guilty of a class C felony: Any person who knowingly votes when the person is not entitled to vote.”); NY Elec. Code § 17-132 (2008) (“Any person who [k]nowingly votes or offers or attempts to vote at any election, when not qualified … is guilty of a felony.”); Tex. Elec. Code § 64.012(a)(1) (2007) (“A person commits an offense if the person votes or attempts to vote in an election in which the person knows the person is not eligible to vote.…”).

233

Policy Memorandum No. 86, supra, at 5. Some things to consider include: (1) how, when, and where applicant registered to vote; (2) extent of applicant’s knowledge of election laws; (3) whether applicant received any instructions or was questioned verbally about eligibility to vote; (4) who provided applicant with information about election laws or eligibility to vote; (5) whether election registration form and/or

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“willful” requirement, practitioners should urge CIS to exercise prosecutorial discretion, especially if the applicant registered to vote or voted due to a good faith error.234 Example: Teresa, who is not a U.S. citizen, voted in the 2010 California gubernatorial election. When she had filled out a driver’s license application in 2007, she mistakenly believed that she could also register to vote in the state. Because she had received a voter registration card, she believed that the state was permitting her to vote in the state election. The California Constitution provides that “[a] United States citizen 18 years of age and resident in this state may vote.”235 California law also explains that unlawful voting occurs where one who is not entitled to vote fraudulently votes or attempts to vote in an election.236 Practitioners should argue that where the elements of the state law’s voting provisions require specific intent for a finding of unlawful voting, such as California’s “fraudulent” requirement, the adjudicator should not find that the applicant voted unlawfully unless the unlawful voter had the requisite mens rea. An opinion issued by the California Attorney General explains that the “use of the term ‘fraudulently’ in subdivision (a) of § 18560 requires proof of specific intent, i.e., the intent to defraud.”237 Therefore, in California, for a non-citizen to be removable for voting in a California state or local election, the adjudicator should first find that the applicant intended to defraud the state when casting his or her vote.238 Since Teresa genuinely believed that the state permitted her to vote in the state election, the practitioner should argue that Teresa did not intend to defraud the state. There is at least one federal case analyzing the illegal voting removal provision that practitioners should consult. In MacDonald v. Gonzales, 400 F.3d 684 (9th Cir. 2005), the Ninth Circuit considered whether a woman was deportable for voting in violation of a Hawaii election voting ballot has specific question asking if applicant is U.S. citizen, requires applicant to declare under penalty of perjury that he is US citizen, requires applicant to be qualified to vote and lists specifically the requirement of US citizenship elsewhere on form. Id. 234

See id. at 4.

235

Cal. Const. art. II, § 2 (2009).

236

See, e.g., Cal. Elec. Code § 18560(a) (“Every person is guilty of a crime punishable by imprisonment in the state prison for 16 months or two or three years, or in county jail not exceeding one year, who … [n]ot being entitled to vote at an election, fraudulently votes or fraudulently attempts to vote at that election.”)

237

Office of the Cal. Atty. Gen., Opinion No. 98-505, 1998 Cal. AG LEXIS 94, 81 Ops. Cal. Atty. Gen. 321 (November 16, 1998).

238

See, e.g., McDonald v. Gonzales, 400 F.3d 684 (9th Cir. 2005) (explaining that Hawaii election law requires a knowing and willful violation, and holding that applicant did not have the requisite mens rea because, when she voted, she was unaware that she was ineligible to vote).

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law which provided that, “any person who knowingly votes when the person is not entitled to vote” is guilty of a felony. While the Ninth Circuit did not explicitly hold that guilty knowledge or other specific intent is actually required to fall under the illegal voting ground, it did find that a court must find that the noncitizen violated all of the provisions of the law at issue to be removable and could not apply its own standard. In that case, the Court found that the Immigration Judge erred by applying his own knowledge standard requiring that the petitioner merely be aware that it is practically certain that her voting would result in a violation of law. The Court held that the correct standard under the Hawaiian law at issue not only required that the petitioner knowingly voted, but also that she knew she was not entitled to vote. Because the woman was not aware that she was ineligible to vote, she was not deportable.239 Practitioners should be aware that 18 USC § 611 makes voting by an alien in a federal election unlawful, with no intent or knowledge requirement. 240 A Department of Justice Manual on election fraud states that § 611 “is a strict liability offense in the sense that the prosecution must only prove that the defendant was not a citizen when he or she registered or voted. Section 611 does not require proof that the offender was aware that citizenship is a prerequisite to voting.”241 Moreover, at least one Federal Circuit Court has held that § 611 does not require specific intent.242 A non-citizen, therefore, who voted in a federal election could be found removable even if she did not have any knowledge that she was prohibited from doing so.243

239

In MacDonald, the petitioner mistakenly registered to vote on a drivers’ application because she thought she was a U.S. citizen based on her marriage to one. When she received a voter registration form in the mail, after conferring with her husband, she changed her answer to say she was not a U.S. citizen. Nonetheless, she received Notice of Voter Registration and believed that the government was allowing her to vote even though it had learned she was not a citizen. She then voted and was not aware that she could not.

240

18 USC § 611 states in part: “It shall be unlawful for any alien to vote in any election held solely or in part for the purpose of electing a candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner.…”

241

Craig C. Donsanto & Nancy L. Simmons, Department of Justice, Federal Prosecution of Election Offenses (7th ed. 2007), at 69.

242

United States v. Henry, 111 F.3d 111, 113 (11th Cir.1997). See also United States v. Knight, 490 F.3d 1268 (11th Cir. 2007).

243

Policy Memorandum No. 86, supra, at 5 (“Federal election laws provide that only U.S. citizens can vote. Clearly, if an applicant is convicted under 18 USC 611, which governs federal elections, the applicant has voted in violation of the law.”).

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It is important to note that some municipalities allow lawful permanent residents and/or nonresident aliens to vote in municipal elections,244 so practitioners should check whether the non-citizen voted in a federal, state, or municipal election since the intent requirements differ depending on the type of election the non-citizen voted in. Example: Teresa, who is not a U.S. citizen, voted in the 2008 presidential election. When she had filled out a driver’s license application in 2007, she mistakenly believed that she could also register to vote. Because she had received a voter registration card, she believed that the state was permitting her to vote. Since she voted in a federal election, she could be charged with violating § 611. It may not matter that she genuinely believed she was eligible to vote in the presidential election, since § 611 does not have a specific intent requirement. As a result, she faces criminal sanctions and deportation. Nevertheless, practitioners may urge CIS to recognize the unfairness in targeting individuals who made an innocent mistake when voting, like Teresa, and did not intend to do anything wrong, even if the relevant election statute does not impose a mens rea requirement like that in MacDonald or under California law. 2. Unlawful Voting and Good Moral Character If the adjudicator determines that the applicant unlawfully voted under the applicable election law, then the applicant is removable. The adjudicator should follow local procedures for issuing a Notice to Appear, but continue (i.e., not process) the naturalization application pending the outcome of removal proceedings.245 However, as outlined above, the adjudicator may find that the applicant falls within the narrow exception to removal created by the CCA. Or, the adjudicator may decide that despite the applicant’s susceptibility to removal, the case deserves a favorable exercise of prosecutorial discretion.246 In these situations, the adjudicator should proceed with the adjudication of the naturalization application. In order to meet the criteria for naturalization, the applicant must be found to possess good moral character. Even if the applicant’s prior unlawful voting does not serve as a basis for removal, it may be used to assess the applicant’s good moral character. As always, when assessing good moral character, the adjudicator should analyze: 

whether the applicant is statutorily barred from establishing good moral character,

244

Id. See Virginia Harper-Ho, Noncitizen Voting Rights: The History, the Law and Current Prospects for Change, 18 LAW & INEQ. 271 (Summer 2000); Tara Kini, Sharing the Vote: Noncitizen Voting Rights in Local School Board Elections, 93 CALIF. L. REV. 271 (Jan. 2005).

245

Policy Memorandum No. 86, supra, at 7.

246

Id.

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whether the unlawful conduct warrants a discretionary denial of good moral character, after analyzing the totality of the circumstances, and



whether the applicant qualifies for an exception to 101(f).247

Statutory Bars to Good Moral Character: INA §§ 101(f)(3) and 212(a)(2)(A)(i)(I) explain that individuals convicted of crimes involving moral turpitude (CIMT) are statutorily barred from establishing good moral character.248 Since 18 USC § 611 does not have a particular intent requirement involving fraud or lying, it is not likely that a conviction under § 611 will constitute a CIMT, and such conviction will not necessarily preclude the applicant from establishing good moral character.249 However, applicants convicted under § 611 should also be cautioned about §§ 101(f)(3) and 212(a)(2)(B), which preclude a finding of good moral character for individuals who have been convicted of multiple crimes for which the aggregate sentence exceeds five years, regardless of whether the offenses involve moral turpitude; and § 101(f)(7), which precludes a finding of good moral character if an individual has been confined in a penal institution for 180 days or more during the statutory period.250 Discretionary Good Moral Character: Even if the applicant has not been convicted under 18 USC § 611 or is not statutorily barred from demonstrating good moral character, the applicant should be aware that the adjudicator must still consider discretionary good moral character.251 Adjudicators should examine the totality of the circumstances and consider factors such as: (1) family ties and background; (2) the absence or presence of other criminal history; (3) education and school records; (4) employment history; (5) other law-abiding behavior, e.g. meeting financial obligations, paying taxes, etc.; (6) community involvement; (7) credibility of the applicant; (8) length of time in United States.252 The adjudicator might consider the 247

Id. at 8.

248

Id.

249

Id.

250

Id.

251

Id.

252

Id. at 9. The memo provides two examples: an officer might find that an applicant who: (1) unlawfully registered to vote in a federal election fifteen years ago; (2) signed the voter registration card without understanding that he or she was claiming to be a U.S. citizen by doing so; (3) was specifically told by a community organization that he or she was entitled to vote; (4) has been a law-abiding citizen in all other respects; and (5) has no other criminal history, can establish good moral character in spite of making a false claim to U.S. citizenship. Alternatively, an officer might find that an applicant who: (1) voted unlawfully but was not convicted; (2) has failed to pay taxes in the past 15 years; (3) has 50 unpaid traffic tickets; and (4) owes $20,000 in back child support, cannot establish good moral character even if the officer

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applicant’s prior unlawful voting in determining discretionary good moral character. It is the ILRC’s position that as with all discretionary good moral character decisions, the adjudicator must employ a balance test that balances the negative and positive factors (please see § 6.5(A) for more information). Exception to § 101(f): If the applicant’s § 611 conviction became final before October 30, 2000, or if the applicant has not been convicted under that statute, then adjudicators should determine whether the applicant falls under the 101(f) exception, which is identical to the exception for removal created by the CCA.253 C.

False Claims to U.S. Citizenship

In addition to unlawful voting as a ground of deportability and inadmissibility, IIRIRA also created a ground of deportability and inadmissibility for false claims to U.S. citizenship.254 Making a false claim differs from the actual act of unlawful voting, for in the voting context, a non-citizen can only be found to have violated the provision if his or her conduct would be found unlawful under the relevant federal, state, or local election law, whereas for false claims, the adjudicator need not look at the election law that was violated, but need only establish that the applicant: (1) actually falsely represented himself or herself as a U.S. citizen on or after September 30, 1996, and (2) that such representation was made for the purpose of registering to vote or voting.255 Unlike INA § 212(a)(6)(C)(i), where a non-citizen must have made a false claim or have misrepresented a material fact prior to September 30, 1996 in connection with an attempt to obtain entry into the U.S., a U.S. passport, other documentation, or some other benefit under the INA, INA § 212(a)(6)(C)(ii) addresses false claims to U.S. citizenship on or after September 30, 1996 and “significantly expands the scope of the ineligibility related to false claims to U.S. citizenship.”256 It can apply to false claims to U.S. citizenship made for any purpose or benefit

determines that the applicant is eligible for the CCA exceptions to 101(f) for long-term residents because the applicant's other bad acts cumulatively reflect that he or she lacks good moral character as a matter of discretion. Id. 253 Id. at 9-10. 254

INA § 212(a)(6)(C)(ii) states that “[a]ny alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this Act (including § 274A ) or any other Federal or State law is inadmissible.” INA § 237(a)(3)(D) explains that “[a]ny alien who falsely represents, or has falsely represented, himself to be a citizen of the United States for any purpose or benefit under this Act (including § 274A ) or any Federal or State law is deportable.”

255

Policy Memorandum No. 86, supra, at 3.

256

Dept of State Cable, Vol. 2, No. 19, Pg. 807 (Sept. 17, 1997), 2 Bender's Immigr. Bull. 807.

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under the INA or even under federal or state law, thereby encompassing things such as obtaining welfare benefits or false representations made for the purpose of voting in an election.257 The IIRIRA also established criminal penalties for any non-citizen who makes a false claim to U.S. citizenship in order to vote or register to vote in an election,258 and the CCA added exceptions to the removal grounds for false claims to U.S. citizenship.259 1. What Constitutes a False Claim to U.S. Citizenship for Purposes of Voting? Whereas with unlawful voting, which applies retroactively to voting before, on, or after September 30, 1996, false claims to U.S. citizenship apply on or after September 30, 1996. If an applicant has been convicted of violating 18 USC § 1015(f), which deals with making a false claim to U.S. citizenship in order to vote or register to vote, then the applicant faces the possibility of removal.260 However, absent a conviction, information about whether an applicant actually falsely claimed to be a U.S. citizen can come from his or her own admissions under oath or from independent documentary evidence, such as voter registration forms.261 By its plain language, the false claim to U.S. citizenship ground requires a showing that the false representation was made for a specific purpose—to satisfy a legal requirement or obtain a benefit that would not be available to a noncitizen under the INA or any other state or federal law. This requirement also suggests that the individual must have knowledge that the representation is false.262 Nevertheless, the Fifth Circuit held that false claim to citizenship under the INA does not require the same level of intent as the federal crime of false claim to citizenship under 18 USC § 911, which expressly requires a willful misrepresentation. Theodros v. Gonzales, 490 F.3d 396, 402 (5th Cir. 2007). The Fifth Circuit acknowledged that there “is no clear ruling by any of the circuits addressing whether [INA § 212(a)(6)(C)(ii)], when applied to an alien who falsely represented his or her circumstances of birth in a passport application in a manner that implied United States citizenship, requires evidence of an alien’s intent to misrepresent himself as a United States citizen.… The BIA has not provided clear guidance 257

Id. See also CIS Memorandum, Appendix 74-8, Section 212(a)(6)(C)(ii) Relating to False Claims to U.S. Citizenship (Apr. 6, 1998).

258

18 USC § 1015(f) states: “Whoever knowingly makes any false statement or claim that he is a citizen of the United States in order to register to vote or vote in any Federal, State, or local election (including an initiative, recall, or referendum) -- Shall be fined under this title or imprisoned not more than five years, or both.” 259 See INA §§ 212(a)(6)(C)(ii)(II), 237(a)(3)(D)(ii). See also Policy Memorandum No. 86, supra note 2, at 2. 260

Policy Memorandum No. 86, supra, at 6.

261

Id.

262

See 73 No. 45 Interpreter Releases 1641.

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regarding its intended interpretation of this statute.”263 Even though the court did not decide on whether the statute requires evidence of the non-citizen’s intent to falsely claim U.S. citizenship, it found that the petitioner’s conduct more than sufficed to show that, if evidence of intent is required, the BIA’s determination that she had possessed that intent, if required, was reasonable.264

NOTE: Advocates should also be aware that a conviction (or absent a conviction, a formal admission) of a false claim to U.S. citizenship where fraud is involved could have the additional consequence of being a crime of moral turpitude triggering inadmissibility and/or deportability. The BIA has also found that a false claim to citizenship may, but does not necessarily, bar a person from establishing good moral character under INA § 101(f).265

Voter Registration: Many non-citizens may mistakenly register to vote, especially when applying for driver’s licenses (see the Motor Voter Act). CIS may use the voter registration against naturalization applicants, since voter registration forms may specifically ask whether or not the applicant is a U.S. citizen. An answer in the affirmative would, arguably, constitute a false claim to U.S. citizenship. Even if CIS determines that the non-citizen made a false representation of U.S. citizenship, advocates should urge the adjudicator to exercise prosecutorial discretion, particularly where the non-citizen mistakenly or inadvertently registered to vote. CIS guidance on prosecutorial discretion lists factors that adjudicators should consider, including: the alien’s immigration status; length of residence in the U.S.; community service; and immigration history (i.e. non-citizens without a past history of violating the immigration laws warrant favorable consideration).266 2. False Claims to U.S. Citizenship and Good Moral Character Should the adjudicator decide to continue adjudicating the N-400 despite the applicant having made a false claim to U.S. citizenship on the voter registration card, the applicant must still meet the requirements for naturalization, which includes possessing good moral character. 263

Barcenas-Barrera v. Holder, 2010 U.S. App. LEXIS 18519 at *4 (5th Cir. 2010).

264

Id. at *5.

265

Matter of Guardarrama, 24 I&N Dec. 625 (BIA 2008).

266

Doris Meissner, Exercising Prosecutorial Discretion (Nov. 17, 2000), at 7-8.

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Statutory Bars to Good Moral Character: CIS has determined that 18 USC § 1015 is a crime involving moral turpitude,267 which would lead to a statutory bar against showing good moral character if the applicant committed the offense within the statutory period [unless the applicant qualifies for the 101(f) exception].268 As with unlawful voting, applicants should also be aware that falling under INA § 101(f)(7) may statutorily bar them from demonstrating good moral character. Discretionary Good Moral Character: The BIA has held that a non-citizen who has made a false claim to U.S. citizenship may not be able to establish good moral character, but the catch-all provision in INA § 101(f) does not mandate such a finding.269 While the adjudicator may look unfavorably on the fact that the applicant indicated on the voter registration card that he or she was a U.S. citizen, even if the applicant did so without malicious intent, that fact should not be the only circumstance the adjudicator examines in determining discretionary good moral character. As with the factors listed for unlawful voting, the adjudicator should examine the totality of the circumstances. A CIS example of someone who may be able to demonstrate good moral character, despite having made a false claim to U.S. citizenship, involves an applicant who: “1) unlawfully registered to vote in a federal election fifteen years ago; (2) signed the voter registration card without understanding that he or she was claiming to be a U.S. citizen by doing so; (3) was specifically told by a community organization that he or she was entitled to vote; (4) has been a law-abiding citizen in all other respects; and (5) has no other criminal history.”270 It is the ILRC’s position that as with all discretionary good moral character decisions, the adjudicator must employ a balance test that balances the negative and positive factors (please see § 6.5(A) for more information).

§ 6.5 Denial of Naturalization Based on a Discretionary Finding of a Lack of Good Moral Character Once a naturalization applicant has shown that she is not statutorily prevented from establishing good moral character, the job is not over. Even if the applicant does not fall into one of the automatic bars to establishing good moral character under INA § 101(f), the applicant can still be found to lack good moral character.271 267

Policy Memorandum No. 86, supra, at 4.

268

Id. at 8.

269

Matter of Guardarrama, 24 I&N Dec. 625 (BIA 2008).

270

Policy Memorandum No. 86, supra, at 9.

271

INA § 101(f) provides that “[t]he fact that any person is not within any of the foregoing classes [of automatic bars] shall not preclude a finding that for other reasons such person is or was not of good moral character.” See, e.g., In re De Contreras, 24 I&N Dec. 625 (BIA 2008) (finding that a person who has

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A.

Balancing the “Good” and the “Bad”

In considering the issue of good moral character, many kinds of evidence have bearing on character.272 For example, a CIS memorandum listed some factors to consider in determining moral character with regards to an applicant’s unlawful voting or false representation as a U.S. citizen: length of time in the U.S.; family ties and background; absences or presence of other criminal history; education and school records; employment history; other law-abiding behavior like paying taxes; community involvement; and credibility of the applicant.273 The applicant should present evidence of good character, to counteract any evidence of bad character. The Legal Standard: A Balancing Test. The CIS is supposed to balance the evidence of good and bad moral character to get a picture of the applicant’s life as a whole.274 An applicant will not necessarily be denied naturalization just because she has done something “bad.” The BIA has held, however, that the more serious the past misconduct of the person, the more rehabilitation and good conduct time is needed to establish good moral character.275 Nonetheless, the examiner can use her discretion to decide whether or not the person should be naturalized. The goal is to present your client in the best possible light, considering all aspects of her life.

made a false claim of U.S. citizenship may be considered a person who is not of good moral character, but the catch-all provision does not mandate such an outcome). 272

See Torres-Guzman v. INS, 804 F.2d 531 (9th Cir. 1986). “Where … the petitioners have not committed acts bringing them within § 101(f)'s enumerated categories, the Board must consider all of petitioners' evidence on factors relevant to the determination of good moral character.” Id. at 534.

273

Policy Memorandum No. 86, William Yates, Procedures for Handling Naturalization Applications of Aliens Who Voted Unlawfully of Falsely Represented Themselves as U.S. Citizens by Voting or Registering to Vote (March 7, 2002).

274

See, e.g., Torres-Guzman, supra at 534; Matter of Sanchez-Linn, 20 I&N Dec. 362 (BIA 1991) (evaluating good moral character involves evaluating “both favorable and adverse” evidence); Matter of B, 1 I&N Dec. 611, 612 (BIA 1943) (regarding good moral character, “We do not think it should be construed to mean moral excellence, or that it is destroyed by a single lapse. Rather we think it is a concept of a person’s natural worth derived from the sum total of all his actions in the community.”).

275

Matter of Sanchez-Linn, supra at 365. See also Lora v. USCIS, U.S. Dist. LEXIS 28523 (ED NY April 18, 2007) (finding that despite a serious juvenile delinquency disposition for sale of cocaine in 1990 and a conviction for shoplifting in 1997, Lora possessed good moral character contrary to the government’s finding because the drug conviction occurred 17 years prior when he was only 17 years old, more than 10 years had elapsed since his shoplifting conviction in 1997, he owned his own home, conducted charitable work in the community, supported his future wife and their child, and was a law abiding and hard working member of the community).

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Documenting Good Moral Character. Remember that a person may present any kind of evidence to show good moral character. You and your client can be very creative when thinking about good moral character. For example, the person may be a community leader, excellent employee, devout church member, and a volunteer in her child’s classroom, or someone who helps an elderly neighbor by shopping for him. Documentation of what appears to be a person’s plain and ordinary life can be great evidence of good moral character. For example, letters from a work supervisor and copies of paycheck stubs can show a steady, hardworking, and productive member of society. To document these aspects of good moral character, the client should try to get letters from work or volunteer supervisors, co-workers, teachers, other volunteers, or those who benefit from her activities (such as school children, church members, or neighbors). If the client has won any awards or been recognized in any other way (articles, letters of appreciation, etc.) then these documents should be included as well. Your client should talk about these important activities in her interview. Example: At the end of their first meeting, Araceli the Advocate handed Consuelo the Client a few sheets of paper and asked her to go home and list all the ways she contributes to the United States, including her help to relatives, friends, employers, and others (positive equities). At home Consuelo wrote down the following positive equities: she is a good mother, cares for her elderly father, is an outstanding employee, belongs to her church choir, and volunteered in a day care center where he son attends. A copy of the sheet Araceli gave to Consuelo and the sheet Consuelo completed is at Appendix 6B. It is best for Consuelo and Araceli to obtain proof of Araceli’s claims such as a letter from her church documenting her participation in the choir, a letter from her employer showing her as a good and honest employee, and a letter from the day care center where she volunteers proving her volunteer work B.

Factors that May Show “Bad” Moral Character

Since INA § 101(f) permits the Immigration Service to go beyond the language of the statute and consider other negative factors in assessing good moral character, it is useful to have a sense of what might work against a client. In the past, courts have found an absence of good moral character when a person willfully failed to pay child support;276 failed to file tax returns;277 committed adultery which destroyed a viable marriage;278 sold liquor illegally in his restaurant (even though the law was not enforced in his community);279 refused to respond to questions 276

In re Malaszenko, 204 F.Supp 744 (N.J. 1962). Cited in INS Interpretations 316.1(f)(5).

277

Sumbundu v. Holder, 602 F.3d 47 (2d Cir. 2010); Gambino v. Pomeroy, 562 F.Supp 974 (DNJ 1982).

278

INS Interpretations 316.1(g)(2)(viii). See also 8 CFR § 316.10(3)(ii).

279

Petition of Orphanidis, 178 F.Supp 872 (ND W.Va. 1959).

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regarding his history, associations, and activities;280 and had a DUI conviction coupled with aggravating circumstances.281 If anything negative stands out, check reported court opinions to see if bad precedent exists. Whether or not there is bad case law, you may still be able to argue that despite the problem, the applicant is of good moral character based on all the evidence of good moral character submitted. Similarly, actions that at first glance may appear to tarnish a person’s good moral character sometimes have little relevance to establishing good moral character. For example, a default judgment in a civil case against an individual or bankruptcy more often than not is immaterial to eligibility for naturalization.282 Also, alleged or actual repeated immigration violations by themselves do not necessarily establish that the person does not possess good moral character.283 Not telling the truth during the naturalization interview itself, especially about any criminal arrests or convictions, is a common basis for denying naturalization applicants usually as providing false testimony, which is a statutory bar to proving good moral character. See 101(f) and § 6.3 of this chapter. Courts have found that “lying” in a naturalization interview is a sign of bad moral character if the lie is coupled with intent to deceive for the purpose of obtaining

280

Gambino v. INS, 419 F.2d 1355 (2nd Cir. 1970). The petitioner's numerous arrests added to the judge's decision to find that he lacked good moral character.

281

Federal courts have largely rejected the notion that a simple DUI conviction prevents one from establishing good moral character for naturalization purposes, but some courts have upheld denials of naturalization applications when the DUI is accompanied by other factors, such as lacking candor or providing untrustworthy testimony. See, e.g. Rico v. INS, 262 F.Supp.2d 6 (ED NY 2003); Le v. Elwood, 2003 WL 21250632, at 2 (ED Pa. 2003). See also Danielle L.C. Beach, 'Twas the Season to be Jolly: The Immigration Consequences of Excessive Libations, 87 No. 17 Interpreter Releases 873 (Apr. 26, 2010).

282

See, e.g., Puciaty v. INS, 125 F. Supp. 2d 1035 (DC Haw. 2000) (district court found that the applicant’s failure to satisfy or set aside a default judgment, in and of itself, was insufficient to deny the applicant’s naturalization application). See also Angel v. Chertoff, 2007 U.S. Dist. LEXIS 78084 at *13 (SD Ill. 2007) (consent agreement entered into with Department of Labor in response to accusations that applicant owed back wages to certain employees was not probative of good moral character because it was a response to a civil lawsuit and applicant complied with the terms of the judgment).

283

Angel, supra at *14 (removal proceedings initiated against the applicant twice for alien smuggling of employees does not support adverse moral character finding since both cases were dismissed); Matter of Lee, 17 I&N Dec. 275 (Commissioner 1978) (applicant deserted his ship and then was ordered deported and then deserted ship again); Matter of Carbajal, 17 I&N Dec. 272 (Commissioner 1978) (several entries without inspection for which the person was granted voluntary departure several times and was also deported); Matter of T-, 1 I&N Dec. 158 (BIA 1941) (three deportations and a conviction for illegal reentry after deportation). But where immigration fraud is involved, the person will be considered to lack good moral character. Matter of Pimentel, 17 I&N Dec. 482 (BIA 1980).

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citizenship or other benefits under the act.284 In fact the Immigration Service also has moved to denaturalize persons who have become U.S. citizens, when it discovered that the persons did not tell the truth even about small convictions that would not have hurt their case.285 (See Chapter 13 for more information on the denaturalization process.) The moral is: arm the client with knowledge. If there is any chance of a past arrest or conviction, obtain the client’s criminal record and give a copy to the client to review. Get the client to practice with you or another person answering questions about the record. If needed, the client can bring the record to the interview. Practice is important because answering these questions can be very embarrassing, and the client should not have to face saying the information out loud for the first time at the naturalization interview. Finally, help the client to think about how to make her case. If there are “bad” events in her life, ask your client to explain to you why she should be allowed to naturalize. Ask her what things about her life she thinks the interviewer will look at most closely. If any of those things could be viewed negatively, ask her to explain why the situation was not really so bad, or why it will not happen again. If she practices telling you, she will be better prepared to explain it to the interviewer. C.

The Commission of Acts Listed in 8 CFR 316.10 that Can Cause a Lack of Good Moral Character: Extra-Marital Affairs, Willful Failure to Support Dependents, Being on Probation or Parole, and the Commission of Other Unlawful Acts

284

See, e.g., In re De la Cruz, 565 F. Supp. 998 (SD NY 1983); Bernal v. INS, 154 F.3d. 1020 (9th Cir. 1998). See also cases referenced in § 6.3(A)(2). But see Plewa v. INS, 77 F. Supp. 2d 905 (ND Ill. 1999). (The court ruled that a naturalization applicant who had not disclosed his arrest record based on the wrongful advice by his attorney did not lie to obtain an immigration benefit. Therefore, the applicant was not barred from demonstrating good moral character); Chan v. INS, 2001 WL 521706 (ED NY 2001) (where the applicant was found eligible for naturalization despite misrepresentations on his naturalization application and in his testimony. The court concluded that the applicant’s lack of education and confusion about American culture, coupled with the complexity of the matters in question, more likely than not, were the cause of the misstatements. Therefore, the applicant did not intend to deceive the government and hence was not ineligible for naturalization for providing false testimony to obtain immigration benefit.); Zheng v. Chertoff, 2008 WL 4899342 (ED Pa. 2008) (applicant’s diminished mental capacity also called into question the assertion that he made misrepresentations with the intent of receiving immigration benefits. The court noted that the applicant had no arrests, was married with two children, and had maintained a steady work history since his arrival to the United States, and so to prevent him from naturalizing because he lied about not lying in the past, when the record reflected not only his hardworking history, but also his limited intelligence, would amount to injustice).

285

See, e.g., Fedorenko v. U. S., 449 U.S. 490 (1981); U.S. v. Jean-Baptiste, 395 F.3d 1190 (11th Cir. 2005); U.S. v. Mwalumba, 2010 WL 343431 (ND Tex. 2010) (holding that the defendant would be denaturalized after discovering that his citizenship was illegally procured because he had committed criminal acts prior to filing his naturalization application, even though he was not prosecuted and convicted until after he became a naturalized citizen).

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As stated above, some actions, which are not statutory bars to establishing good moral character can have the practical effect of keeping individuals from naturalizing. This is because INA § 101(f) not only provides a list of statutory bars, but also a catch-all category which may preclude a finding of lack of good moral character for other reasons not listed.286 In order to provide more guidance to immigration officials as to what can fall into this catch-all category and be negative factors in determining good moral character, CIS has listed many of them.287 See 8 CFR § 316.10. It is important to note, however, that these negative factors do not create situations where people are automatically denied naturalization for failure to show good moral character like the statutory bars under INA § 101(f).288 Nonetheless, when a naturalization applicant falls under these bases it is more likely than not that applicants will be denied naturalization for lack of good moral character, unless, in some instances where the applicants can show extenuating circumstances and/or using the balance test described above, the positive factors involved in granting the naturalization application outweigh the negative factors. The bases for denying naturalization included in the CIS regulations include: willful failure to pay child support, receipt of public benefits where fraud was involved, and commission of unlawful acts. Another basis to deny good moral character, but which comes up less frequently is if the applicant had an extra-marital affair which tended to destroy an existing marriage. Finally, an applicant who is on probation or parole on the day of the interview will not be granted naturalization.289 See § 6.4 below for more on probation and parole.

PRACTICE TIP: If your client falls into any of the categories discussed below, it is common that CIS is going to deny the naturalization application for lack of good moral character. However, the client might be able to get around these bases if he shows “extenuating circumstances,”290 (see discussion below) or, when using the balance test (explained below), the 286

INA § 101(f). “The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character.”

287

While some of these other bases to consider in denying good moral character are listed at 8 CFR § 316.10, others are not, but nonetheless are bases that CIS officials consider in moral character determinations. Anything can be a negative factor in determining good moral character.

288

See, e.g., Matter of Guadarrama, 24 I&N Dec. 625 (BIA Sept. 23, 2008), (holding that a non-citizen who has made a false claim of citizenship may be lacking good moral character, but the catch-all provision of INA § 101(f) does not automatically mandate such a finding. See also BIA Finds False Claim of Citizenship May Indicate Lack of Good Moral Character, 85 No. 38 Interpreter Releases 2552 (Sept. 29, 2008).

289

8 CFR § 316.10(c)(1).

290

8 CFR § 316.10(b)(3). “[S]uch circumstances must pertain to the reasons showing lack of good character, including acts negating good character, not to the consequences of these matters, including the consequences of denaturalization.” Jean-Baptiste v. United States, 395 F.3d 1190 (11th Cir. 2005)

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positive equities in granting naturalization outweigh the negative ones. Another way to get around these bases is if the applicant can prove that he otherwise does not fall within the basis for denial (see arguments below).

Extenuating Circumstances. Under 8 CFR § 316.10, a person who falls into the nonstatutory bases to deny good moral character is entitled and required to establish “extenuating circumstances” to explain his or her conduct and avoid an adverse moral character determination.291 CIS has provided guidance in a memo as to what is required of a naturalization applicant to prove extenuating circumstances for acts that might indicate a lack of good moral character. See Appendix 6-G, CIS Memorandum on Amendment to AFM 73.6(d)(3)(B) regarding Application of the “Unlawful Acts” Regulation in Naturalization Determinations, Yates (September 19, 2005). Extenuating circumstances must directly relate to the applicant’s commission of the act at issue, i.e., failure to pay child support, or failure to register for the Selective Service. To be directly related, the extenuating circumstance must take place before or during the same time as the commission of the act. Also, evidence of the extenuating circumstance must relate to the reasons for lacking of good moral character. For example, an extenuating circumstance could be when someone did not register for the Selective Service because he did not have adequate notice that he was supposed to. Nothing that occurs after the act is committed, such as the consequences of the act, will be considered an extenuating circumstance. This means that reformation, rehabilitation, and other effects such as hardship resulting in ineligibility for citizenship292 will not be considered extenuating circumstances. For some examples of what are considered to be valid extenuating circumstances see § 6.5(C)(2) “Commission of unlawful acts and conviction or imprisonment for such,” infra. Finally, it is important to note that extenuating circumstances will be given further credence if many positive equities exist in the case because of the necessity of the CIS to employ a balance test before determining whether or not the applicant has good moral character. 1. Willful Failure to Support One’s Dependents (Willful Failure to Pay Child Support)

(defendant’s future incarceration in Haiti prison and extreme hardship his wife and children would suffer was not extenuating circumstances pertaining to his culpability for the drug crime). 291

Ragoonanan v. USCIS, 2007 U.S. Dist. LEXIS 92922, *11-12 (D. Minn. 2007) (holding that when CIS examines an applicant’s criminal behavior under the catch- all category he is entitled to establish extenuating circumstances and is required to try to explain his conduct by offering extenuating circumstances); Angel v. Chertoff, 2007 U.S. Dist. LEXIS 78084, *15-16 (SD Ill. 2007) (“Angel must still satisfactorily explain away his unlawful actions by showing extenuating circumstances.”).

292

Jean-Baptiste v. United States, 395 F.3d 1190 (11th Cir. 2005).

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The CIS views the “willful” (i.e. deliberate) failure to support one’s dependents, absent extenuating circumstance, as a failure of good moral character.293 Almost always, the CIS is really looking at non-payment of child support, absent extenuating circumstances, as a failure of good moral character. Thus, the CIS is required to look at the reasons why someone has not supported his children.294 If an applicant has not been paying child support because he has been unemployed or is otherwise financially unable to do so, or his family is self supporting, the failure to pay child support should not be considered willful and thus the CIS should not find the applicant is lacking in good moral character.295 Additionally, the ILRC would argue that if someone has made a reasonable effort to provide child support but has not been able to for some reason (such as he cannot find his family or the family refuses his assistance), the failure to pay child support should not be considered willful and the CIS should not deny the case for lacking good moral character.296 Therefore, always ask your client why he has not been paying child support and see if the explanation is one that the CIS should or will accept. It would be wise to advise clients who have not been paying child support to start paying before applying for naturalization. This is sound advice assuming the client is able to pay, or at least start making, the child support payments. In instances where someone has not been paying child support and there aren’t extenuating circumstances, it is the ILRC’s position that the CIS should still conduct a balance test balancing the negative factors involved in the applicant’s character against the positive factors before denying the application.297 2. Commission of Unlawful Acts and Conviction or Imprisonment for Such 293 294

8 CFR § 316.10(b)(3)(i); see also INS Interpretations 316.1(f)(5). The CIS position is that failure to provide support will add to the weight of other evidence to sustain a finding of lack of good moral character. See INS Interpretations 316.1(f)(5). It is important to note that the standard is not merely failing to pay child support, but “willful failure to pay child support.” In determining whether the failure to support dependents warrants a finding of a lack of good moral character, some courts have taken into account extenuating circumstances such as unemployment or financial inability to pay. See INS Interpretations 316.1(f)(5) for examples.

295

See Immigration Law and Procedure, Gordon & Mailman § 95.04[1][b][iii] and INS Interpretations 316.1(e)(5).

296

Id.

297

See, e.g., Torres-Guzman v. INS, 804 F.2d 531, 534 (9th Cir. 1986); Matter of Sanchez-Linn, 20 I&N Dec. 362 (BIA 1991) (evaluating good moral character involves evaluating “both favorable and adverse” evidence); Matter of B, 1 I&N Dec. 611, 612 (BIA 1943) (regarding good moral character, “We do not think it should be construed to mean moral excellence, or that it is destroyed by a single lapse. Rather we think it is a concept of a person’s natural worth derived from the sum total of all his actions in the community.”).

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The CIS can find that an applicant lacks good moral character if, during the statutory period, he or she committed unlawful acts that adversely reflect upon his or her moral character, or was convicted or imprisoned for such acts, unless the person can demonstrate extenuating circumstances.298 Two courts have held that under this provision, an applicant whose unlawful act(s) is being examined is entitled and required to establish “extenuating circumstances” to explain his or her conduct and avoid an adverse moral character determination.299 Unlawful acts only include illegal acts or acts against the law.300 These unlawful acts do not have to result in a conviction, fall within the other statutory bars discussed § 6.3, or trigger deportation in order to be considered.301

298

8 CFR § 316.10(b)(3)(iii). See also United States v. Suarez, 2010 U.S. Dist. LEXIS 88627 (ND Ill. 2010); U.S. v. Mwalumba, 2010 WL 343431 (ND Tex. 2010) (referring to the catch-all provision pertaining to commission “unlawful acts,” the court reasoned that the defendant's crimes so qualified because they involved fraud, and the defendant had not offered any extenuating circumstances to explain his conduct); U.S. v. Okeke, 2009 WL 4110390 (D. Md. 2009); Meyersiek v. USCIS, 445 F. Supp. 2d 202, 207 (D.R.I. 2006); United States v. Dang, 2004 WL 2731911 (ED Cal. 2004).

299

Ragoonanan v. USCIS, 2007 U.S. Dist. LEXIS 92922, *11-12 (D. Minn. 2007) (holding that when CIS examines an applicant’s criminal behavior under the catchall category he is entitled to establish extenuating circumstances and is required to try to explain his conduct by offering extenuating circumstances); Angel v. Chertoff, 2007 U.S. Dist. LEXIS 78084, *15-16 (SD Ill. 2007) (“Angel must still satisfactorily explain away his unlawful actions by showing extenuating circumstances.”).

300

Many of the acts that come up under the unlawful acts non-statutory base involve criminal conduct that do not otherwise fall into the statutory criminal grounds at 101(f). One such example is a single driving under the influence (DUI) conviction (but note that this might fall into habitual drunkard statutory bar if there are multiple DUI convictions). Another example includes unlawful harassment. Sabbaghi v. Napolitano, 2009 U.S. Dist. LEXIS 115861 , *16-*17 (WD Wash. 2009) (non-citizen attempting to establish good moral character could not, where, within five years before his application, he was found by a state court to have engaged in unlawful harassment, which had resulted in an anti-harassment protective order against him).

301

At the end of 2006, the Ninth Circuit considered a challenge to the constitutionality and validity of the unlawful acts non-statutory basis for denying good moral character. A woman, who was subject to denaturalization proceedings for commission of unlawful acts during the statutory good moral character period for which she was later convicted and imprisoned, argued that this unlawful act regulatory provision is ultra vires to INA § 101(f). Specifically, she argued that because 101(f) already provides statutory bars to proving good moral character for those who are convicted of or admit to committing certain offenses during the statutory period, Congress prohibited adverse good moral character findings based on conduct underlying convictions that occurred outside of the five-year period. The Ninth Circuit rejected this argument and found the regulation valid in light of a plain reading of the statute. The Court reasoned that because 101(f) includes a catch-all category that specifically allows the agency to consider other reasons to deny good moral character, it was permissible for the agency to expand this list of acts to include others, both legal and illegal. The Ninth Circuit in this case also considered other challenges to the unlawful acts regulation including being void for vagueness, being impermissibly overbroad, and running afoul of the Uniformity Clause of the Constitution. The Court rejected all of them. It appears that the extreme facts of the case, that Dang was convicted of arson, fraud, and willful injury of child as a result of intentionally

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CIS has issued a memo to provide further guidance on this non-statutory base to deny good moral character. See Appendix 6-G, CIS Memoranda Amendment to AFM 73.6(d)(3)(B) regarding Application of the “Unlawful Acts” Regulation in Naturalization Determinations, Yates (September 19, 2005). The memo states that adjudicators should not deny an applicant for good moral character based on minor unlawful acts without engaging in an individualized analysis as to whether those acts actually adversely reflect on the person’s good moral character. This individualized analysis must take into consideration the nature and magnitude of the unlawful act and the circumstances, including mitigating and favorable factors, surrounding the act. Even if there is a finding that the unlawful acts reflect negatively on moral character, the adjudicator must still give the applicant an opportunity to show extenuating circumstances. The extenuating circumstances must directly relate to commission of the unlawful act and not to the later consequences of the act. Some examples of extenuating circumstances that have been upheld by courts in the context of commission and conviction for unlawful acts have included: an applicant’s first and only conviction for driving under the influence resulting from familial stress induced by the applicant mother’s illness and death as well as the separation from his wife and child;302 and a conviction for failing to report over $90,000 which was hidden in an ice chest when crossing the border because the applicant was unaware of reporting requirements even though he had acquired the money legally, he thought that the money would be cheaper to exchange in Mexico, and had planned to use it to buy a new car and host a party for his extended family in Mexico.303 These extenuating circumstances were considerably weighed alongside the positive equities of the applicants.304 It is important to note again that in any instance when CIS denies naturalization due to a lack of good moral character based on acts that are not specifically listed in INA § 101(f) (such as the case with “unlawful acts”), CIS must first check to see if there were any extenuating circumstances involved in the applicant’s negative actions, but also the CIS should still conduct a

burning herself and her four month year old son with the specific intent to defraud her insurance carrier, seriously influenced the Court’s decision. 302

Ragoonanan v. USCIS, 2007 U.S. Dist. LEXIS 92922 at *11-12 (D. Minn. 2007).

303

Angel v. Chertoff, 2007 U.S. Dist. LEXIS 78084 at *15-16 (SD Ill. 2007).

304

In Ragoonanan, supra at *12-13, the District Court considered that this was the applicant’s first and only arrest and conviction in the U.S., he was found to be a good employee, committed to but missed his family, an owner of property, became involved in the community, was honest and forthright regarding the offense, and willing to take responsibility. In Angel, supra at *13, the District Court considered that this was the only criminal conviction on his record in the 30 years he had been in the U.S., he had a stable marriage and home life, established a thriving business, and paid all of his taxes.

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balance test balancing the negative factors involved in the applicant’s character against the positive factors before denying the application.305 Advocates should warn their clients that they risk being denied for naturalization if they have committed unlawful acts at any time during the statutory period, up to and including the period between the filing of the application and the oath of citizenship. Advocates should also warn their clients of the risks of denaturalization if the unlawful act is committed during the statutory period (including the period between the naturalization interview and the oath ceremony) and is not disclosed, but is found out by CIS after the applicant becomes a U.S. citizen, even if no conviction ever results or if the conviction occurs long after naturalization has been granted. 306 3. The Effect of Being on Probation or Parole Individuals who were on probation or parole or a suspended sentence during all or part of the statutory five or three year period should not be disqualified from establishing good moral character.307 However, the application will not be approved while the applicant is still on 305

See, e.g., Torres-Guzman v. INS, 804 F.2d 531, 534 (9th Cir. 1986); Matter of Sanchez-Linn, 20 I&N Dec. 362 (BIA 1991) (evaluating good moral character involves evaluating “both favorable and adverse” evidence); Matter of B, 1 I&N Dec. 611, 612 (BIA 1943) (regarding good moral character, “We do not think it should be construed to mean moral excellence, or that it is destroyed by a single lapse. Rather we think it is a concept of a person’s natural worth derived from the sum total of all his actions in the community.”)

306

Mwalumba, supra (holding that the defendant's previously accorded naturalization would be revoked, because he had committed criminal acts prior to filing his naturalization application, even though he was not prosecuted and convicted until after he became a naturalized citizen).; U.S. v. Lemos, 2010 WL 1192095 (SD NY 2010) (defendant's conviction for illicit trafficking in a controlled substance constituted such a felony and he illegally procured naturalization since he had been statutorily barred for this benefit when he received it); U.S. v. Okeke, 2009 WL 4110390 (D. Md. 2009) (revoking the defendant’s naturalization because he procured his naturalization by concealing material facts concerning his criminal conduct, since his sexual battery offenses against a minor, which resulted in convictions after the naturalization was granted but were committed before his swearing-in ceremony, constituted crimes that would have statutorily barred him from naturalization); Jean Baptiste v. United States, 395 F.3d 1190 (11th Cir. 2005) (commission of conspiracy to distribute crack cocaine during statutory period negated good moral character and was basis for denaturalization regardless of the fact that it ultimately resulted in a conviction a year after the oath of allegiance); Lekarczyk, supra (defendant who committed bank fraud, forgery, and bail jumping during statutory period and was not convicted until 6 and 7 years later after taking the oath of allegiance subject to denaturalization because they adversely affected his good moral character and he failed to provide any evidence of extenuating circumstances at the time).

307

8 CFR § 316.10(c)(1). See also INS Interpretations 316.1(f)(4); Ragoonanan v. USCIS, 2007 U.S. Dist. LEXIS 92922 at *9 (D. Minn. 2007) (“… [T]he regulations do not direct that naturalization must be denied when a candidate applies while on probation, but rather direct that the ‘application will not be approved’ until probation is completed.”); Angel v. Chertoff, 2007 U.S. Dist. LEXIS 78084 at *12 (SD Ill. 2007) (in rejecting CIS’ per se denial of an naturalization application of an applicant on parole, the Court stated that USCIS would have exceeded its authority if the regulation was either a per se good moral character bar for

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probation a section entitled this or parole.308 In practice, this means that a person who is or has been on probation or parole within the last three or five years can file a naturalization application, but should be prepared to present additional evidence showing good moral character to offset any bad implication the CIS might make of the probation or parole based on the balance test for determining good moral character.309 You should be aware that if the person is on probation or parole during the statutory period, it gives CIS even more reason to look back at the underlying criminal conduct outside of the period to see whether or not the person is of good moral character. The CIS might decide to deny the application in the CIS’ discretion based on the probation/parole, and the person then would have to re-apply for naturalization at a later time. Finally, the applicant must time the filing of the application to make sure that he or she is not still on probation or parole by the time of the naturalization interview or else he or she will be denied naturalization.310 Based on all of these considerations, sometimes (but certainly not always) it may be best to wait until the individual has not been on probation or parole at all during the statutory period before applying for citizenship. In instances where someone has been on probation or parole for some of the statutory period but at the time of the naturalization is not on probation or parole any longer, the CIS should still conduct a balance test balancing the negative factors involved in the applicant’s character against the positive factors before denying the application.311 D.

The Commission of Other Acts that Typically Cause a Lack of Good Moral Character: Receipt of Public Benefits where Fraud Is Involved, Willful Failure to Register for Selective Service, and Failure to File Taxes

those on probation or parole or a statutory requirement that the person complete any period of probation or parole before he can be naturalized); Matter of Gantus-Bobadilla, 13 I&N Dec. 777 (BIA 1971); Petition of Sperduti, 81 F. Supp. 833 (WD Pa. 1949); In re Paoli, 49 F. Supp. 128 (ND Cal. 1943). But see In re McNeil, 14 F. Supp. 394 (ND Cal. 1936) (Good moral character precluded until termination of parole). 308

8 CFR § 316.10(c)(1). But see Angel, supra.

309

Angel v. Chertoff, 2007 U.S. Dist. LEXIS 78084 at *12 (SD Ill. 2007) (treating the fact that applicant was currently on probation as just one factor among many in the good moral character balance test).

310

See, e.g., U.S. v. Rebelo, 2009 WL 2581332 (DNJ 2009) (where the defendant was on probation when he naturalized, and 8 CFR § 316.10(c)(1) disqualifies one from naturalization while the individual is on probation).

311

See, e.g., Torres-Guzman v. INS, 804 F.2d 531, 534 (9th Cir. 1986); Matter of Sanchez-Linn, 20 I&N Dec. 362 (BIA 1991) (evaluating good moral character involves evaluating “both favorable and adverse” evidence); Matter of B, 1 I&N Dec. 611, 612 (BIA 1943) (regarding good moral character, “We do not think it should be construed to mean moral excellence, or that it is destroyed by a single lapse. Rather we think it is a concept of a person’s natural worth derived from the sum total of all his actions in the community.”)

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To be denied naturalization because of a failure to demonstrate good moral character due to receiving public benefits where fraud is involved, willful failure to register for the selective service and/or failure to file one’s tax returns, the CIS must still use a balance test in which the negative factor(s) showing that the naturalization applicant lacks good moral character outweighs the positive factor(s) showing that the applicant has good moral character. See § 6.4 A and B above for a full explanation of the balance test. 1. Receipt of Public Benefits Receipt of Public Benefit has a negative effect on good moral character only if fraud is involved. However, some CIS offices might incorrectly use receipt of public benefits as a basis for refusing to find good moral character. This is against CIS national policy and should be challenged aggressively. Appendix 6-E contains a sample CIS Memorandum explaining the Los Angeles CIS office’s position on how the receipt of public benefits affects good moral character. This memo explains the same policy that we think all CIS offices should adopt and probably have adopted. In San Francisco, advocates were able to convince naturalization authorities to change their policy of using receipt of public benefits as a basis for denial. For an example of a legal argument, see Appendix 8-K, a sample letter in response to an INS denial based partly on the basis of receipt of public benefits. 2. Failure to Register for the Selective Service Since 1980, all young men between the ages of 18 and 26 have been required to register for the military with Selective Service, including men without lawful immigration status. Not only do U.S. citizens and lawful permanent residents have to register for the Selective Service, but any male refugee, asylee, parolee or undocumented immigrant who is in the U.S. and is between the ages of 18 and 26 must also register.312 Note however, that an individual who entered the U.S. on a non-immigrant visa [under INA § 101(a)(15)] and who remained a nonimmigrant through the age of 26 is not required to have registered. Also, any male who entered the U.S. after the age of 26 is not required to have registered. A 1987 INS memorandum stated that failure to follow this law will be evaluated as evidence of bad moral character.313 Many CIS offices have followed the memorandum and instituted a policy of giving men between 18 and 26 years of age, who have not registered, the 312

The Military Selective Service Act is found at 50 USC App. 450, et seq.

313

See memorandum entitled, “Eligibility for naturalization of persons who fail to register under the Military Selective Service Act,” sent to all CIS offices on July 22, 1987 by the INS Associate Commissioner for Examinations, reprinted in 64 Interpreter Releases 921 (8/10/87), hereafter referred to INS Memorandum. See also Letter from R. Michael Miller to Robert F. Belluscio, Esq., dated October 19, 1987, reprinted in 64 Interpreter Releases 1330 (11/23/87), referred to as “INS Letter.”

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opportunity to register before their naturalization application is denied. For men 26 to 31 years of age who should have registered but did not, the Immigration Service adjudicators would evaluate whether their failure to register with Selective Service was willful or knowing or whether they did not understand or know that they had a duty to register. Men who were over 31 years old (or over 29 if applying for naturalization as the spouse of a U.S. citizen) and who failed to register did not generally face consequences from failing to register. However, some CIS offices refused to accept applicants’ explanations regarding why they had failed to register for selective service and instead had a policy of blanket denials for anyone who had not registered. These blanket denials were arguably illegal. The Federal Selective Act requires that no one be denied a federal right or benefit if he shows by preponderance of the evidence that his failure to register for Selective Service was not knowing or voluntary.314 In 1998 and 1999 opinions, the INS offered further information about the effect of failure to register. See Appendix 6-F, INS memorandum on Effect of Failure to Register for Selective Service on Naturalization Eligibility, Yates (June 18, 1999) and INS memorandum presenting the opinion of INS General Counsel Paul W. Virtue (April 27, 1998). Both of these memos state that failure to register for Selective Service bars naturalization only if the applicant refused or knowingly and willfully failed to register. INA § 316(a) mandates that an applicant must demonstrate that he possesses, and has possessed for the statutory period, good moral character; is attached to the principles of the U.S. Constitution; and is well disposed toward the good order and happiness of the United States.315 Moreover, INA § 337(a)(5)(A) requires applicants to declare under oath their willingness to bear arms on behalf of the United States when required by law. Consequently, the 1999 INS memo provided that “INS will find an applicant ineligible for naturalization on account of failure to register for Selective Service if a male applicant refuses to or knowingly and willfully failed to register during the period for which the applicant is required to establish his disposition to the good order and happiness of the United States, [which] coincides with the more familiar good moral character period.”316 Whether a male applicant refused to or knowingly and willfully failed to register during the required period depends on the applicant’s age. The memos examine three different time periods and give officers instructions on how to evaluate cases. From ages 18 to 26, men are required to register for the draft unless they are in the U.S. on non-immigrant visas. The memos state that the Immigration Service is justified in denying 314

Military Selective Service Act, 50 USC App. 4531 § 3(a); 50 USC App. 462(g).

315

Yates, Policy Memorandom No. 52, Effect of Failure to Register for Selective Service on Naturalization Eligibility (June 18, 1999), available at www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-026573/0-0-0-33844.html.

316

Id.

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naturalization applicants of this age only after providing them with an opportunity to register and in response, the applicant still refuses to register. The decision denying the application must specify that the applicant refused to register even after being provided an opportunity to do so, and so the applicant is not eligible to naturalize because he is not well disposed to the good order and happiness of the United States.317 From ages 26 to 31, if the failure to register for Selective Service still occurred within the statutory period (that is, the last five years for most naturalization applicants and three years for those applying as the spouse of a U.S. citizen), the CIS can deny naturalization based on the failure. The memos state that the CIS can presume (assume) that the failure to register was knowing or willful, unless the applicant shows otherwise by a preponderance (majority) of the evidence. Therefore, the applicant has the burden of proof to show that either he was not required to register or that he did not knowingly and willfully fail to register. Generally, applicants who are in this age range at the time of filing and who do not show a letter of registration with the Selective Service will be requested to do so. This means that the applicants will have to obtain status information letters from the Selective Service System before CIS can conclude that there was a failure to register. Once the failure to register is established, then CIS must determine whether or not it was knowing and willful. CIS must continue the examination to give the applicant an opportunity to show that it was not knowing and willful and it must consider all persuasive evidence pertaining to the failure to register. The 1999 memo also states that at a minimum, CIS must “take a statement under oath from an applicant in order to determine whether or not failure to register was knowing and willful.” (It is the ILRC’s view that if the applicant’s failure to register was not willful, but was because he did not know about the requirement or sincerely believed that it did not apply to him, he must bring in evidence to prove this fact to CIS. This could include his testimony, the testimony of others who know him, or other evidence. Many CIS examiners will accept the applicant’s testimony as sufficient to demonstrate he didn’t willfully and knowingly fail to register.) However, if the applicant cannot demonstrate that his failure to register was not knowing and willful, then his application must be denied for “failure to demonstrate during the requisite period before filing his application that he was well disposed to the good order and happiness of the United States.”318 After age 31, the test changes again. First, if the CIS finds that failure to register was not knowing and willful, there should not be a problem. Second, even if the failure to register was knowing and willful, it is not an absolute bar because it is outside the five year (or three year) statutory period. While the agency can consider bad conduct outside the five years, it must explain specifically why it does so. Additionally, if the CIS has other evidence that the applicant does not have good moral character, is not attached to the principles of the Constitution of the United States, and/or is not well disposed to the good order and happiness of the United States, 317

Id.

318

Id.

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the CIS could deny the application when viewing these factors with the failure to register. According to the memos, under no circumstances should the failure to register be considered a permanent bar to naturalization. a. Willful Failure to Register Most applicants who failed to register with the Selective Service probably just did not know that they were required to register. CIS offices continue to have different standards for determining whether failure to register for Selective Service was knowing and therefore “willful.” For example, in some district offices CIS adjudicators generally will accept an applicant’s statement that he did not know he was supposed to register, and will ask him to fill out a form affidavit to that effect.319 In other district offices examiners generally will not accept an applicant’s statement that he did not know he was supposed to register for the draft. Additionally, if there is evidence in the person’s file that the CIS told him of the Selective Service requirement in his own language the officer might deny the application. In one recent federal district court case in California320 the court found that an applicant who has failed to register has the burden to prove by a preponderance of the evidence that: (1) he possessed neither actual or constructive321 knowledge of the Selective Service registration requirement; and (2) he did not have the intent to fail to register by producing evidence negating this intent such as evidence that he made a good faith attempt to comply with the Selective Service requirement before the age of 26 if it was possible in the case.322 This is a high burden for many clients to meet. Although the CIS does not have to follow this case because it is not a federal circuit court case, it could provide guidance for the CIS in some offices in the future. You should check legal standards in your jurisdiction.

319

Some offices also require that applicants submit a registration even if no longer eligible to register. A copy of the notice sent to males registering after reaching the age of 26 is included in Appendix 6-G.

320

Patel v. Still, 2005 WL 1910926 (ND Cal. 2005).

321

“… [K]knowledge can be inferred if the evidence shows that the person had information that would lead a reasonably prudent person to inquire as to the facts, despite a lack of evidence that the person had actually inquired and learned the facts … [and] by circumstantial evidence relating to a party’s conduct or activities.” Id. at 4-5.

322

The burden was not met in Patel because the applicant had actual knowledge of the requirement. He signed a notice of duty to register at a visa interview abroad and orally acknowledged that he understood the requirement. At the time of applying for naturalization he had the opportunity to inquire about the requirement mentioned in the application and to review the requirement in the INS booklet in preparation for the test and he received and read a notice from the INS stating that he must bring evidence of Selective Service registration to his interview. Further, he waited over five years to register despite numerous reminders.

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Many CIS offices assert that all permanent residents are warned, in a manner that they can understand, of the requirement at the time they gain permanent residency. For example, special rules applied to some persons applying under the “amnesty” programs of the 1980’s.323 Some CIS examiners argue that therefore all failures to register by permanent residents are knowing and willful. These officers may insist that even if the person did not understand such a warning, the person should have understood and should be penalized. The question, however, should be whether the individual person actually understood the requirement. A person’s statement that he did not understand the requirements should contain details about the applicant’s own experience and feelings and not just be a “boilerplate” statement. In all cases the applicant should be prepared to explain in detail why he did not believe he had to register. For example, if the applicant attended high school in the U.S. and heard of the requirement, but thought that it did not apply to undocumented or permanent resident aliens, he should be ready to discuss that. If his immigration record states that he was informed of the requirement when he immigrated, but he does not remember this or did not understand it, he should be ready to discuss any limitations in terms of understanding English or of literacy he had at that time. We suggest that naturalization applicants who may be affected by this (males between 26 and 31 who did not register) and who live in an CIS jurisdiction that is strict about accepting the applicant’s statement as to why he failed to register for the Selective Service, should file a FOIA (Freedom of Information Act) request with CIS to review the person’s CIS file. If there is some written record of a warning in the applicant’s native language, this will give the applicant time to think about the warning and remember if in fact he understood the warning, and if not, why not. Instructions for filing a FOIA request are at Appendix 7-B. b. Legal Objections to the Policy It is the ILRC’s opinion that the CIS policy on failure to register for the Selective Service has some flaws. First, we assert that even if the person failed to register within the statutory period (that is the previous five years for most applicants, or three years for those applying as the spouses of a U.S. citizen), e.g., if the applicant is still between the ages of 26 to 31, the CIS cannot deny naturalization without first applying a balance test and give the applicant the opportunity to show positive equities. Even if the person admits or the CIS decides that the person did “willfully” fail to register, this should not mean an automatic denial of the application. The CIS, in this as in all good moral character cases in which the applicant doesn’t fall within one of the statutory bars to good moral character, must weigh evidence of bad moral character against evidence of good moral character under the Torres-Guzman test.324 The person must be permitted 323

People who became permanent residents under the amnesty or legalization program because they lived here since before 1982 were required to register for Selective Service to qualify for amnesty and the question appeared on the amnesty form. Persons who gained amnesty through the SAW program because they were farmworkers were not required to register as a condition of getting amnesty, and the question did not appear on their application forms.

324

See Torres-Guzman v. INS, 804 F.2d 531, 543 (9th Cir. 1986). See discussion and footnote in Part A of this section.

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to attempt to offset the “bad act” of willful failure to register with the “good acts” of stable employment, support of family, participation in church or civic activities, and other evidence of good moral character. Example: Carlos walks into the office of Araceli Advocate and tells her that he wants to apply for naturalization. He is 30 years old and has been a lawful permanent resident for 5 years. In the course of explaining the requirements for naturalization and answering his questions, Araceli informs Carlos of the Selective Service requirements. She tells Carlos that one of the questions on the naturalization application asks whether he has ever failed to comply with the Selective Service laws. Araceli tells Carlos that if he knew about having to register with the Selective Service and didn’t register, then he probably will be denied naturalization, most likely on the basis that he lacks good moral character. Araceli also tells Carlos that if he didn’t register because he didn’t know he was required to register, then the CIS shouldn’t automatically deny his application for naturalization, but that he should be prepared to explain to the CIS why he didn’t register, and why he does have good moral character.325 Carlos then explains that he came to the U.S. when he was 24 years old, but that he didn’t register because he never knew that he was required to do so. He tells Araceli that had he known, he would have registered. Note that if Carlos were currently between the ages of 18 and 26, and he had not registered, you should encourage him to immediately register at the nearest post office. When the applicant is over 31, it has been more than five years since the applicant failed to register, and thus, the CIS should not deny naturalization solely on the basis of conduct outside this five year period. Yet, assuming there are other negative factors in the applicant’s case that occurred within the last five years, if one failed to register more than five years ago, the failure to register will still be considered a negative factor in the discretionary balance test.326 Similarly, for someone applying as the spouse of a U.S. citizen, when the person is over 28, it has been more 325

See Interpreter Releases, November 23, 1987, Appendix V, where the INS Deputy Assistant Commissioner for Adjudications states that “failure to register, as required by the Military Selective Service Act, does not constitute an automatic denial recommendation, but will alert the [INS] Naturalization examiner to closely scrutinize the applicant's good moral character, or lack thereof, and his attachment to the principles of the Constitution.” An applicant should be prepared to give an explanation for his failure to register because the CIS usually raises the issue. The applicant should also be prepared to show why, despite his failure to register, he still has good moral character.

326

See § 6.4, “Balancing the Good and the Bad.”

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than three years since the applicant failed to register, and thus, the CIS should not deny naturalization solely on the basis of conduct outside this three year period. Please note that even if someone applying for naturalization under the three year rule (see Chapter 7-5) failed to register more than three years ago, the failure to register is still considered a negative factor in the discretionary balance test, only assuming there are other negative factors in the applicant’s case that occurred within the last three years.

PRACTICE TIP: If you have any questions regarding the requirements for registering with the Selective Service, or if you want to ask a question about a specific person, you can contact the Selective Service Systems at: PO Box 94638, Palatine, Illinois, 60094-4638 or by calling 1-847688-6888. You can also visit them on the web at www.sss.gov.

4. Failure to File Taxes The CIS considers failure to file income taxes evidence of lack of good moral character. Therefore, if a person has failed to file income taxes in the five years preceding his or her application for naturalization, proving good moral character will be an issue.327 Anyone who has knowingly provided fraudulent information on his income tax returns, by underreporting, will have difficulty showing he is a person of good moral character.328 a. Not Everyone Is Required to File Income Taxes Individuals who make under a certain amount are exempt from having to file taxes. The amount varies from year to year. Therefore, applicants must verify with the Internal Revenue Service (IRS) or a tax expert whether their earnings were below the threshold for a given year. An applicant who was exempt from filing taxes should indicate that he has not failed to file 327

Sekibo v. Chertoff, 2010 U.S. Dist. LEXIS 52801 at *10 (SD Tex. 2010) (applicant failed to file federal tax returns during the five years preceding his application for naturalization, and he did not acknowledge this failure on his naturalization application or during his interview with USCIS); El-Ali v. Carroll, 83 F. 3d 414 (4th Cir. 1996); Gambino v. Pomeroy, 562 F. Supp. 974 (DCNJ 1982).

328

Sumbundu v. Holder, 2010 WL 1337221 (2d Cir. 2010) (denying applicants’ cancellation applications based on a finding that they lacked good moral character due to underreporting of their income on their tax returns); Matter of Locicero, 11 I&N Dec. 805 (BIA 1966) (person who fraudulently understated his income in two tax returns to avoid payment of a substantial sum in U.S. income taxes was not a person of good moral character). But see Lora v. USCIS, U.S. Dist. LEXIS 28523 (ED NY April 18, 2007) (rejecting government’s argument that Lora was not a person of good moral character because he underreported his income on his tax returns and falsely claimed charitable deductions on his returns and finding instead that while Lora’s unemployment compensation was not reported and he could not present the requisite back up for his charitable contribution deductions, he, nonetheless, relied in good faith on the tax preparers in filing his returns).

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income taxes on his application for naturalization. Some jurisdictions require applicants to bring proof of tax filing to the interview. Therefore, applicants who were exempt from filing should bring proof of their exemption in lieu of tax filing records. b. What Applicants Who Failed to File Taxes Can Do Applicants should strongly consider filing late taxes and making arrangements with the IRS to pay any past due taxes. The applicant also should be ready to offer a reasonable explanation why he or she failed to file taxes. The CIS is more likely to overlook a failure to file if the person has made efforts to correct the situation. Ultimately, whether or not corrective action will be sufficient to avoid an adverse finding of good moral character depends on local district policy and the specifics of the case.329 Advocates should be aware that tax evasion is a crime.330 Anyone who has not paid his or her taxes or has not filed a tax return may need to be referred to a tax expert. Moreover, violations of federal tax laws have been found to be crimes of moral turpitude rendering the person susceptible to deportation and also statutorily barred from establishing good moral character if it occurred in the statutory period and the person admits to these violations even if there is no conviction.331 c. Filing for Non-Resident Status Although rare, some individuals file non-resident status forms to avoid tax liability. An applicant who is a lawfully admitted permanent resident of the United States, but who voluntarily claims nonresident alien status to qualify for special exemptions from income tax liability, or fails to file either federal or state income tax returns because he or she considers himself or herself to be a nonresident alien, raises a rebuttable presumption that the applicant has relinquished the privileges of permanent resident status in the United States. In such a case, the naturalization applicant must consult with an immigration laws expert. See 8 CFR 316.5(c)(2) and Chapter 5 for a discussion of abandonment of lawful permanent resident status.

329

Some CIS offices may require applicants to have paid-back any past due taxes before being allowed to naturalize. Other districts only require that the person have a payment arrangement with the IRS and that the applicant is abiding by the payment plan. In some districts, a willful failure to file or pay taxes during the statutory period may result in the CIS finding the person to lack good moral character.

330

26 USCA § 7206(1) (West 1989).

331

Surrett v. U.S., 421 F.2d 403 (5th Cir. 1970).

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§ 6.6 Dealing with Clients Who May Have a Criminal Record -- Obtaining Records You can see from the list of automatic bars under INA § 101(f) that the most common reason for which people are disqualified from establishing good moral character is that they were involved in some sort of criminal activity. Therefore, the topic of arrests and convictions is an important one to raise with naturalization clients. If your client has had a criminal history, several steps should be taken. First, someone must gather as much official information as possible about the incident. The client can go to the court where she made her appearance and request the court record, i.e., the documents showing the charges and outcome of her case. If there is any possibility that a conviction occurred, you should run both an FBI check and a check with the state’s Justice Department to clarify the information. The forms necessary to do the check with the FBI and with the California Department of Justice can be found at Appendix 6-A. Next, you should find out if the particular crime involved is one of the crimes that will automatically disqualify your client from showing good moral character. You can begin with the list above. For more information on this issue refer to the ILRC Manual, Defending Immigrants in the Ninth Circuit or materials on the law of your state. To access online resources on criminal and immigration law go to www.defendingimmigrants.org and www.immigrationadvocates.org and click on Resource Library. If the crime is one that will disqualify your client from establishing good moral character, find out if there is any immigration waiver/relief or post-conviction relief available to eliminate the crime for immigration purposes. See the part of this section below dealing with immigration waivers and relief. Too often applicants do not share information about their criminal history and other personal facts because they do not think it is important, do not know the consequences of such acts, or do not know (because of confusion surrounding the proceedings) that they were actually convicted of a crime. This makes client education on these issues critical. They need to know that even arrests without convictions and minor criminal offenses, such as petty theft, could possibly bar them from becoming U.S. citizens and have even worse consequences, such as deportation. The advocate has to take the responsibility to share this information with clients and together determine which, if any, bars apply to them and what action to take. For a sample of a flyer in English and Spanish, which explains some of the grounds for which applicants can be denied naturalization, please see Appendix 6-C. Remember that a person who may not be able to meet the good moral character requirement now may be able to do so at some time in the future. In those cases, the prospective applicant may wisely choose to wait a while before seeking naturalization.

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§ 6.7 Temporary Ineligibility to Naturalize Many applicants choose to wait before pursuing naturalization because they have a better chance of establishing good moral character at a future time. In that sense, the good moral character requirement is properly viewed as a temporary bar to naturalization. Other temporary preclusions are discussed in this section. The CIS, is not authorized to naturalize a person who has an outstanding deportation or removal order against her, or a person who has a deportation or removal proceeding pending at the time she applies for naturalization.332 Although an Immigration Judge is not authorized to grant naturalization, he or she can terminate removal proceedings once certain requirements are met to allow an otherwise eligible naturalization applicant to proceed with naturalization.333 See Chapter 11 for a more thorough explanation of this topic. People who have been involved in certain political activities in the ten years before applying for naturalization are also barred from citizenship.334 For example, people who have advocated anarchism or totalitarianism cannot be naturalized. A person who is or has been a member of or affiliated with the Communist Party in the ten years before submitting her application is also barred from citizenship. People participating with certain other political groups are also affected by this ten-year ban.335 INA § 313 must therefore be reviewed carefully.336 The ten-year bar has an important exception. Naturalization is not precluded if (1) the applicant participated in the prohibited activity involuntarily; (2) the prohibited activity occurred and terminated before the applicant reached 16 years of age; (3) the membership was by operation of law; or (4) she had to participate so that she could get food, a job, or other necessities.337 332

INA § 318. However, the argument has been made that while INA § 318 forbids the Attorney General from considering a naturalization application while removal proceedings are pending, it does not preclude the courts from exercising jurisdiction to review denials of naturalization applications when removal proceedings are pending. See Kestelboym v. Chertoff, 538 F. Supp. 2d 813 (DNJ 2008), Gonzalez v. Napolitano, 684 F. Supp. 2d 555 (DNJ 2010). For more information, please see Chapter 11, § 11.3.

333

8 CFR § 1239.2(f).

334

INA § 313. Note that the Ninth Circuit has held that a naturalization applicant cannot refuse to answer questions pertaining to his organizational affiliations. Pierce v. INS, 941 F.2d 878 (9th Cir. 1992).

335

INA § 313(c).

336

Note that the prohibition on certain political activities not only addresses activities during the ten years prior to the filing of the naturalization application, but also creates bars to naturalization for individuals who engage in these political activities after filing the application and before taking the oath.

337

INA § 313(d).

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§ 6.8 Permanent Ineligibility to Naturalize Certain actions, mostly connected with military service, can make a person permanently ineligible for U.S. citizenship.338 (Note that these are different from simple failure to register for selective service, discussed above.) Deserters from the armed forces and draft evaders are permanently ineligible to become U.S. citizens.339 In order to be barred from citizenship under this section, the desertion or draft evasion must have occurred (or will occur) when the United States has been or shall be at war and there is a conviction by a court martial or other court.340 Some draft dodgers and draft deserters are permanently ineligible for citizenship under another section.341 The ineligible group is very small. It includes only people who requested an exemption from compulsory service in the U.S. armed forces on the ground of being an alien, or people who deserted the U.S. armed forces during the period 1971-1973, World War II, and during other conflicts.342 Note that the amnesty given by President Jimmy Carter to individuals who avoided the draft during the Vietnam War also protects eligible aliens from this exclusion. A person who has applied for and received certain exemptions from compulsory, but not voluntary U.S. military service based on being an alien is also permanently ineligible for citizenship.343 Keep in mind that while many different kinds of exemptions from military service are available, only a few of them bar a person from citizenship. Ask your client carefully what kind of exemption he received, and talk to a draft counselor if you are not certain what immigration consequences are involved. 338

Permanent bars are discussed at INA § 101(a)(19). Note also that under 8 CFR § 316.10(b)(1), anyone who has ever been convicted of murder cannot establish good moral character. See § 6.8(B) for a discussion of aggravated felonies, which may also create permanent ineligibility to naturalize. 339 INA § 314. 340

INA § 314.

341

INA § 212(a)(8), INA §§ 314 and 315.

342

See, e.g., Cernuda v. Neufeld, 307 Fed. Appx. 427 (11th Cir. 2009) (non-citizen filed an Application by Alien for Relief from Training and Service in the Armed Forces with his local Selective Service office, which was accepted, but the court found that while he could be a permanent resident, he would never be eligible for naturalization).

343

INA § 315; Gallarde v. INS, 486 F.3d 1136 (9th Cir. 2007) (holding that INA § 315 based on its’ statutory and historical context bars citizenship for only those who request and receive exemption, relief, or discharge from liability for the draft and not those who request early release from voluntary military service).

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In addition, some people who received an exemption from military service may still be eligible for naturalization. The Ninth Circuit held that a person who is exempted or discharged on the basis of voluntary service as opposed to compulsory service is not barred from naturalizing.344 A person might also still be eligible for citizenship if: (1) at the time of the exemption the person was not by law bound to serve;345 or (2) the person did not knowingly request the waiver nor understand the results of the exemption.346 Although there has not been a draft in the U.S. in many years, make sure your clients do not fall into any of the above categories.

§ 6.9 Deportability Issues A.

Grounds of Deportation.

If a naturalization applicant is deportable, DHS may decide to deny naturalization, place the person into removal (formerly deportation) proceedings, and “remove” (deport) the person. It is important for all advocates helping people apply for naturalization to have some familiarity with the grounds of deportation. One way to discuss these grounds with naturalization applicants is to use a flyer describing the “Red Flag Areas.” At a minimum, the advocate should help the applicant identify if any of the “red flags” might be a problem for her, and then find a referral if the advocate is not able to represent the applicant. Copies of this flyer in English, Spanish and Chinese are reprinted at Appendix 2-B. A more thorough overview of the grounds of deportation is provided at Appendix 6-D. The grounds of deportability appear in INA § 237(a). A summary list of the grounds of deportability includes: 

Conviction of certain crimes. This includes crimes with any relation to drugs or firearms; “crimes involving moral turpitude” (offenses that have as an element fraud, theft with intent to permanently deprive,347 threat of great bodily injury, and in some cases lewdness, recklessness or malice); aggravated felonies; and other offenses.

344

Gallarde, supra.

345

INS Interpretations 315.3(a).

346

INS Interpretations 315.3(a)(5).

347

A conviction for theft should be considered to involve moral turpitude only when a permanent taking is intended. Matter of V-Z-S-, 22 I&N Dec. 1338, FN 12 (BIA 2000); Matter of Grazley, 14 I&N Dec. 330 (BIA 1973). Advocates should, however, look to the law in their jurisdiction to see if the law is

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Conviction of domestic violence and child abuse: Conviction of almost any offense that involves violence or the threat of violence against a person with whom the accused had a domestic relationship; conviction of an offense against a child that could be termed abuse, neglect or abandonment; a civil finding that the person violated a domestic violence protective order. (This applies to convictions, or behavior that violated the protective order, occurring on or after September 30, 1996.)



Alien smuggling, which means helping or encouraging any alien to cross into the U.S. illegally, even if the person was not convicted for doing this. (There is a discretionary waiver for permanent residents who smuggled only their parent, spouse or child.)



Being the subject of a civil order finding that the person used false documents to get an immigration benefit (e.g., false social security number to get a job, fake papers to get a visa, completed an immigration form with misinformation). Making a false claim to U.S. citizenship for any purpose or benefit under the Immigration and Nationality Act or any federal or state law (on or after September 30, 1996). [Note: there is a very limited exemption for individuals who were adopted by U.S. citizens and who believed that they were U.S. citizens because the adopting parents were U.S. citizens.]348





Unlawful voting in violation of federal, state or local laws. [Note: Some of these laws require that the unlawful voting was knowing, as opposed to mistakenly thinking one was qualified to vote. Check the local law. In addition, there is a very limited exemption for individuals who were adopted by U.S. citizens and who believed that they were U.S. citizens because the adopting parents were U.S. citizens.]349



Having been a drug addict or abuser at any time since admission to the U.S.



Deportable for having been inadmissible when the person last was admitted to the U.S. Some permanent residents who took trips outside the U.S. may be subject to an even stricter standard if they had criminal convictions or wrongdoing before leaving the U.S.

Please note: Appendix 6-D describes in more detail the grounds of deportability, how to obtain criminal records, and other information.

contrary to BIA precedent. See, e.g., United States v. Esparza-Ponce, 193 F.3d 1133 (9th Cir. 1999) (petty theft under PC § 488 a crime involving moral turpitude). 348

INA § 237(a)(6)(B).

349

INA § 237(a)(6)(B).

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Lying on a Naturalization Application or during an Interview May Trigger the Crime Involving Moral Turpitude Ground of Removal. Lying on a naturalization application or in an interview may not only be a basis to deny citizenship or cause denaturalization,350 but if a conviction results it may also trigger the crime involving moral turpitude ground of deportation. If someone lies on a naturalization application or in an interview, he may be found guilty of one of two federal offenses. 18 USC § 1546(a) criminalizes anyone who knowingly makes a false statement of material fact in a naturalization application. 18 USC § 1425 criminalizes anyone who “knowingly procured, contrary to law,” naturalization. This latter offense requires that the person either knew he was not eligible for naturalization due to a prior act or prior criminal conviction, or knowingly misstated a material fact such as a criminal record on his application or in his interview.351 If convicted of either crime, it may trigger deportation under the crime involving moral turpitude ground of deportation. One court has held specifically that a conviction under 18 USC § 1425(a) is a crime involving moral turpitude warranting deportation.352 See Appendix 6-D for a discussion generally on the crime involving moral turpitude ground of deportation. B.

Aggravated Felonies

Anyone who has been convicted of an “aggravated felony” on or after November 29, 1990353 is forever barred from showing good moral character,354 and therefore is forever barred from naturalizing to U.S. citizenship. A person convicted of murder at any time is permanently

350

Lying on either a naturalization application or in an interview most likely will bar naturalization. Lying under oath may trigger the false testimony under oath statutory bar (see above discussion on statutory bars to good moral character), other unlawful acts (see section above on this topic), or the discretionary bar to good moral character. Moreover, if it is later discovered that citizenship was illegally procured by lying on the application or in the interview, the person could be denaturalized.

351

Amouzadeh v. Winfrey, 2006 U.S. App. LEXIS 25006 (5th Cir. 2006); United States v. Pasillas-Gaytan, 192 F.3d 864, 868 (9th Cir. 1999) (the Court reversed the client’s conviction for 18 USC § 1425 for stating in his naturalization application that he had never been convicted of any crime other than a motor vehicle infraction when he also had a second-degree theft conviction because it was not proven that he either knew he was not eligible for naturalization due to the theft conviction or that he knowingly misstated the fact since he said that his misrepresentation was an innocent mistake due to poor understanding of English and limited education). 352 Amouzadeh, supra at *19. 353

The date of conviction for purposes of this section is the date of “sentencing at the earliest, or the filing of a Judgment in a Criminal Case, which takes place soon after sentencing.” Puello v. Bureau of Citizenship and Immigration Services, 418 F.Supp.2d 436, 438 (SD NY 2005).

354

INA § 101(f)(8); 8 CFR § 316.10(b)(ii).

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barred from showing good moral character.355 Moreover, a person convicted of an aggravated felony is deportable and subject to severe penalties. Usually before the CIS will even consider the naturalization application of someone who has been convicted of an aggravated felony, the CIS will issue a Notice To Appear and place the applicant in deportation proceedings. One exception is in the Ninth Circuit where the court in Ledezma-Galicia v. Holder, 599 F. 3d 1055 (9th Cir. 2010) found that the aggravated felony ground of deportation does not apply to convictions that occurred prior to November 18, 1988. Yet, such an individual could be deportable for a different criminal ground of deportability. For more information on aggravated felonies and the criminal grounds of deportability, please see Chapter 9 of the ILRC’s manual entitled, Defending Immigrants in the Ninth Circuit. Warning: Anyone who is not an attorney with expertise in criminal/immigration laws should be referring clients with criminal convictions, and especially clients with aggravated felonies, to an expert immigration attorney. The penalties for conviction of an aggravated felony include, in almost all cases, automatic removal/deportation from the U.S., with no possibility of return. If the person was deported and then re-entered illegally after being convicted of an aggravated felony, the person is subject to up to 20 years in federal prison just for the illegal re-entry. C.

Effect of Post-Conviction Relief and Diversion Schemes 1. Expungements and Other Rehabilitative Relief

Different states have different ways that a person may be able to “erase” his or her record of conviction to get a clean criminal record through expungements or deferred adjudication, even if there was no legal error in the conviction. These are known as forms of “post-conviction rehabilitative relief.” Rehabilitative relief is a dismissal of charges generally for the successful completion of probation or other program. In 1999 the BIA ruled that many types of state court proceedings erasing a conviction as rehabilitative relief would no longer be accepted for immigration purposes and thus the convictions would remain valid for immigration purposes.356 This ruling was upheld by almost all Circuit Courts of Appeal. In 2000, the Ninth Circuit recognized one exception to the BIA’s rule. It held that an expungement, or other “rehabilitative relief” such as deferred adjudication, will eliminate the immigration effect of a conviction of a first offense for simple possession of a controlled substance. Lujan-Armendariz v. INS (with Roldan v. INS joined) 222 F.3d. 728 (9th Cir. 2000). Under Lujan-Armendariz, a noncitizen whose immigration case is adjudicated within the Ninth Circuit only, and who gained an expungement, deferred adjudication, or other type of rehabilitative relief in any state cannot be held deportable or inadmissible for having a drug 355

INA § 101(f)(8); 8 CFR § 316.10(b)(i); MTINA § 306(a)(7) (murder is a permanent bar regardless of date of conviction); Castilglia v. INS, 108 F. 3d 1101 (9th Cir. 1997).

356

Matter of Roldan, Int. Dec. 3377 (BIA 1999).

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conviction, as long as the conviction was for a first offense of simple possession or a first conviction for a “less serious offense (including possession of drug paraphernalia and being under the influence).357 (Note that if the conviction is for possession of less than 30 grams of marijuana, it is not a deportable offense and a discretionary waiver of inadmissibility may be available, so that the person does not necessarily need the expungement.)358 The Ninth Circuit held that the Lujan-Armendariz benefit is not available if a person violated probation (even if he or she later successfully finished it)359 or if a person had any prior rehabilitative drug disposition, even one that never required a guilty plea.360 Although the Ninth Circuit has upheld Lujan-Armendariz in several decisions for over ten years,361 in 2010 the Court decided to re-consider whether to keep this rule, by voting to rehear en banc Nunez-Reyes v. Holder, 602 F.3d 1102 (9th Cir. 2010). As of this writing, it is quite possible that the Ninth Circuit will overturn the Lujan-Armendariz rule, which will mean 357

Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000) (possession of drug paraphernalia considered a less serious offense).

358

But see Rodriguez v. Holder, 2010 WL 3293348 (9th Cir. 2010) (explaining that the statutory personal use exception, which exempts from removability those convicted of only a single offense involving possession for one’s own use of 30 grams or less of marijuana, did not apply to non-citizens with more than one drug conviction).

359

Estrada v. Holder, 560 F.3d 1039 (9th Cir. 2009).

360

Melendez v. Gonzales, 503 F.3d 1019 (9th Cir. 2007).

361

Following Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) [first simple possession eliminated for immigration purposes by state rehabilitative relief as a matter of Equal Protection, including under 101(a)(48)(A)) was Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000 - this also applies to an offense less serious than simple possession that has no federal analogue]; Dillingham v. INS, 267 F.3d 996 (9th Cir. 2001) (this also applies to foreign rehabilitative relief to eliminate a qualifying foreign conviction); ChavezPerez v. Ashcroft, 386 F.3d 1284 (9th Cir. 2004) (in a case involving an Oregon discretionary expungement, the conviction remains a basis for deportability until the plea is withdrawn); Melendez v. Gonzales, 503 F.3d 1019, 1026-27 (9th Cir. 2007) (Lujan-Armendariz does not provide protection if the person has had a prior pre-plea diversion program); Estrada v. Holder, 560 F.3d 1039 (9th Cir. 2009) (Lujan-Armendariz applies to California possession of paraphernalia, but is not available if the person violated probation before the plea ultimately was withdrawn); Ramirez-Altamirano v. Mukasey, 554 F.3d 786 (9th Cir. 2009), superseding with same result 554 F.3d 786 (9th Cir. 2009) (Lujan-Armendariz rule applies to a conviction for California conviction for possession of paraphernalia); Romero-Tapia v. Holder, 568 F.3d 1054 (9th Cir. 2009) (under Lujan-Armendariz, the plea that is withdrawn does not serve as an “admission” of an offense that would destroy eligibility for non-LPR cancellation); Jimenez-Rice v. Holder, 597 F.3d 952 (9th Cir. 2010) (Lujan-Armendariz will apply to a conviction for California under the influence; remand to consider whether two pleas in the same proceeding both are amenable to Lujan protection). See also Nunez-Reyes v. Holder, 602 F.3d 1102 (9th Cir. 2010), (per curium) (mandate pending).

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that DHS will no longer honor an expungement of a first conviction for simple possession, even in the Ninth Circuit. In weighing whether to file a naturalization application for a client, advocates in the Ninth Circuit should consider what would happen to the person if the Lujan-Armendariz rule were reversed and an expunged drug possession conviction came back to life for immigration purposes. Would the person still be eligible for LPR cancellation or some other relief, or would he or she be deportable with no possible defense? For updates and practice advisories, go to www.ilrc.org/criminal.php. Offenses that do not qualify as first offense simple possession of a controlled substance or lesser offense in the Ninth Circuit will be considered convictions regardless of expungement or other rehabilitative relief, thereby exposing the individual to deportability and statutory bars to good moral character.362 The Ninth Circuit Court ruled that expungements will not eliminate non-drug related convictions in 2001.363 In addition, individuals residing outside of the Ninth Circuit will not benefit from the Lujan-Armendariz ruling unless their circuit adopts the Ninth Circuit ruling or the BIA withdraws the original Roldan ruling. Finally, an immigration expert should assist naturalization applicants hoping to benefit from the Lujan-Armendariz ruling since not all drug-related convictions are covered by the Lujan-Armendariz expungement protection.

Practice Tip on Expungements: An expungement does not mean that the applicant never committed the offense and it still could be considered for purposes of good moral character. Even where the person falls within the Ninth Circuit rule, the expunged conviction can still be considered in the discretionary good moral character decision as an adverse factor and it must be disclosed to the CIS examiners. See below for more information on this subject.

2. Other Ways to Avoid Good Moral Character Statutory Bars for Criminal Convictions a. Vacating a Conviction for Legal Error Recent court rulings have not encroached upon all post-conviction relief. There may be ways to vacate the conviction on other legal and constitutional grounds and not for rehabilitative purposes, such as failure to supply an interpreter or to advise the client about his or her rights. However, this usually is a difficult and expensive process, requiring the help of an experienced criminal defense attorney. b. Full and Unconditional Executive Pardon 362

8 CFR § 316.10(c)(3)(i) [expungement of drug offenses (except for a first time simple possession or lesser drug offense in the Ninth Circuit) are still convictions for purpose of the statutory bars]; 8 CFR § 316.10(c)(3)(ii)(two or more crimes of moral turpitude still precludes good moral character even though one such offense has been expunged).

363

Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir. 2001).

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An applicant will not be barred from establishing good moral character if he has received a full and unconditional executive pardon prior to the beginning of the statutory period as long as he demonstrates that reformation and rehabilitation occurred prior to the statutory period.364 The applicant is not automatically barred, however, if the pardon is granted during the statutory period, but he must demonstrate “extenuating and/or exonerating circumstances.”365 A pardon will work for a murder conviction assuming it meets the above conditions. c. No Conviction for Immigration Purposes It also may be possible that a “conviction” never occurred. This might be true, for example, if the client participated in a “diversion” or other court proceeding in which there never was a finding of guilt or guilty or no contest plea. It can be complicated to figure out whether this occurred. For example, until January 1, 1997 California had a pre-trial diversion program that the BIA recognizes would not result in a conviction, even if a drug offense had been charged. After January 1, 1997, the California drug diversion program changed to require a guilty plea, although some counties can opt for a non-guilty plea “drug court” process. Therefore diversion granted in California on or after that date may or may not be a conviction for immigration purposes and should be analyzed on a case-by-case basis. To see the definition of a conviction for immigration purposes see Appendix 6-D. There are different rules in different states. For instance, in New York, deferred adjudication granted to a non-citizen under state law for attempting to illegally bring aliens into the country did not constitute a “conviction” under immigration law, where the pre-trial diversion agreement did not require the non-citizen to plead guilty or to admit to facts surrounding the charge.366 On the other hand, in Texas, courts have held that deferred adjudication granted to non-citizens under Texas law qualified as “convictions” for purposes of immigration law.367 d. Convictions Resulting from Juvenile Delinquency Proceedings A person whose case was handled in juvenile delinquency proceedings instead of adult proceedings does not have a conviction. In all these situations, the client should submit supporting documentation with the application and should also bring proof to the interview that shows why the conviction should not be counted for immigration purposes. e. Infractions 364

8 CFR § 316.10(c)(2)(i).

365

8 CFR § 316.10(c)(2)(ii).

366

Iqbal v. Bryson, 604 F.Supp.2d 822, 827 (ED Va. 2009).

367

Madriz-Alvarado v. Ashcroft, 383 F.3d 321 (5th Cir.2004); Moosa v. INS, 171 F.3d 994, 1006 (5th Cir.1999) (explaining that the defendant’s “deferred adjudication was a conviction for purposes of the immigration laws.”).

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An infraction, a minor offense which is not attendant by the constitutional safeguards usually present in criminal proceedings such as right to defense counsel and jury trial, is not a conviction for immigration purposes. This will eliminate the effect of the good moral character statutory bars, but still can have an effect on the discretionary good moral character determination. For more information on these issues, please refer to the ILRC manual Defending Immigrants in the Ninth Circuit, or other materials listed at the end of this chapter (Appendix 6D). While the absence of a conviction may keep your client from being statutorily ineligible to establish good moral character, the CIS still can consider the underlying facts surrounding an arrest in making a discretionary decision about good moral character.368 The applicant has a duty to report on the N-400 that the arrest occurred.369 This is the case even if the state diversion or expungement law expressly states that once the diversion or other program is completed, the person has the legal right to deny the arrest ever took place.370 D.

Effect of Immigration Relief

Immigration relief that provides that a conviction no longer is a ground of deportability or inadmissibility might not preclude the underlying offense from being a statutory bar to good moral character. INA § 101(f)(3) bars any person from establishing moral character if he or she is “… a member of one or more of the classes of persons, whether inadmissible or not …” (emphasis added). This suggests that a noncitizen who has received a waiver of inadmissibility in removal proceedings still can fall within the scope of the good moral character bars. The Third Circuit held that a person who has received 212(h) to forgive a crime that also falls within the statutory bars 368

“… [A]lthough the conviction and confinement are no longer conclusive statutory bars to finding of good moral character, the unlawful acts are not obliterated and the question of their commission is still relevant to the determination of whether good moral character has been established.” INS Interpretations 316.1(g)(4)(iv).

369

Although the applicant has the duty to report any arrests, failure to do so will not necessarily lead to a denial of good moral character in certain circumstances. See, e.g., Lora v. USCIS, U.S. Dist. LEXIS 28523 (ED NY April 18, 2007). In this case, the judge rejected CIS’ argument that Lora gave false testimony by answering no to question 15 on the N-400 which asked whether a person has ever been committed a crime for which he or she has not been arrested since Lora admitted to selling drugs on five occasions, but was only arrested and prosecuted for two of the five sales. The court found that he did not give false testimony because the case alleging two of the sales covered all five sales he made. See also Plewa v. INS, 77 F. Supp. 2d 905 (ND Ill. 1999) (failure to disclose arrest based on wrongful advice by attorney did not preclude good moral character finding).

370

Paredes-Urrestarazu v. INS, 36 F.3d 801 (9th Cir. 1994) (in making a discretionary decision the INS can consider a person's conduct that led to his arrest, even if the person received California diversion and so never was “convicted” of the offense and also had the right under California law to deny the arrest).

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will be statutorily barred from proving good moral character.371 Also, while the Ninth Circuit had held that a person who is statutorily barred from proving good moral character for alien smuggling can overcome this by receiving a discretionary inadmissibility waiver,372 it recently reversed that holding and explained that 8 USCS. § 1182(d)(11) does not permit a waiver of the “alien smuggling” bar to establishing good moral character for purposes of cancellation of removal.373 Essentially, a conviction will remain a bar to good moral character even if it has been waived for purposes of inadmissibility or deportability, for example under INA 212(h), 212(i),374 former INA 212(c),375 or cancellation. Based on all of these authorities, a waiver of inadmissibility or removability received for any conviction will probably not eliminate any statutory bars. The person, however, can wait until the five years has passed since the conviction occurred (unless an aggravated felony) and then apply for naturalization. It is also important to note that even in cases where the underlying

371

Miller v. INS, 762 F.2d 2, 24 (3rd Cir. 1985) (“Congress has not only chosen not to apply the section 212(h) waiver to section 101(f), it has also chosen not to confer authority on the Attorney General to waive the ‘good moral character’ requirement as defined in section 101(f).…”) 372 Moran v. Ashcroft, 395 F.3d 1089, 1094 (9th Cir. 2005) (holding that where an applicant either qualifies under the automatic exception or the discretionary waiver for alien smuggling, the person is no longer barred from showing good moral character for purposes of qualifying for cancellation of removal for nonlegal permanent residents.) 373

Sanchez v. Holder, 560 F.3d 1028, 1032 (9th Cir. 2009).

374

Socarras v. U.S. Department of Homeland Security, 2009 WL 4113568 (SD Fla. 2009); (a grant of a 212(i) waiver allowing a non-citizen to become a legal permanent resident, despite her prior conviction for an aggravated felony, had no bearing on her separate application for naturalization whereby the use of the prior conviction could serve as a basis for showing that she failed to establish good moral character.)

375

Gorenyuk v. U.S. Department of Homeland Security, 2007 U.S. Dist. LEXIS 82951 at *13 (2d Cir. 2007) (the Second Circuit held that there is no authority to foreclose the government from considering an aggravated felony sexual abuse of a minor conviction waived by INA § 212(c) in determining whether an individual possesses good moral character to qualify for naturalization); see also Chan v. Gantner, 374 F. Supp. 2d 363, 367 (SD NY 2005) (“Although the government faces some limitations as to the use of [an aggravated felony conviction that has received 212(c) treatment] in future removal proceedings … there is no authority for the proposition that it should be foreclosed from considering that conviction in determining the completely unrelated question of fitness for naturalization.…”) See also Letter, Miller, Acting Asst. Comm. Adjudications HQ 316-C (May 5, 1993), reprinted in 70 Interpreter Releases 769-70 (June 7, 2003).

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conviction does not trigger a deportability finding, the CIS will still determine if the person is of good moral character.376 E.

Possible Defenses for Deportable Naturalization Applicants

This discussion is intended for skilled practitioners who are representing persons in deportation or removal hearings (meaning attorneys, accredited representatives, or others permitted to practice in immigration court). Others helping immigrants may wish to understand these to be able to spot the possibility of the defense and refer the applicant to a qualified representative. In some cases, applicants might be so motivated to naturalize (for example, to immigrate their sick mother) that they would be willing to attempt naturalization if they thought they had a chance of escaping deportation. Sometimes there are defenses to deportability. F.

Termination of Removal/Deportation Proceedings under 8 CFR § 1239.2(f) [formerly 8 CFR § 239.2(f) and 8 CFR § 242.7(e)]

This is a defense theory that might help a naturalization applicant who is deportable for a crime or other reasons. It might be available to persons convicted of an aggravated felony before November 29, 1990. When a person is put in removal proceedings either because he or she is found removable through the naturalization process or other means, CIS cannot consider his or her naturalization application. INA § 318 states: “No application for naturalization shall be considered by the Attorney General if there is pending against the applicant a removal proceeding pursuant to a warrant of arrest issued under the provisions of this or any other Act.”377 Federal regulation, however, permits an immigration judge presiding over a removal hearing (until April 1, 1997 called a deportation hearing) some flexibility in dealing with a naturalization applicant who is deportable and in removal proceedings. The regulation provides that: “An immigration judge may terminate removal proceedings to permit the respondent to proceed to a final hearing on a pending application or petition for naturalization, when the respondent has established prima facie eligibility for naturalization and the matter involves exceptionally appealing or humanitarian factors; in every other case, the 376

See, e.g., Rico v. INS, 262 F. Supp. 2d 6 (ED NY 2003) (drunk driving conviction occurring in statutory period taken together with failure to accept responsibility for past crimes outside of statutory period precluded good moral character finding).

377

8 CFR § 318.1 provides that a Notice to Appear shall be regarded as a warrant of arrest.

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deportation hearing shall be completed as promptly as possible notwithstanding the pendency of an application for naturalization during any state of the proceedings.…” See 8 CFR § 1239.2(f) [formerly 8 CFR §§ 239.2(f) and 242.7(e)]; see also INS Operations Instructions 318.2(c)(1)(ii). In other words, the judge may decide simply to close the person’s removal case and let the person continue on to naturalize if he or she can show that he or she is prima facie eligible for naturalization and there are exceptional factors in the case. In 2007, however, the Board of Immigration Appeals significantly limited the Immigration Judge’s ability to terminate the proceedings under this regulation by ruling that the judge does not have the authority to determine whether the person is prima facie eligible for naturalization.378 Now, in order to establish prima facie eligibility for naturalization, the person must rely on DHS to issue an affirmative statement stating that the applicant is prima facie eligible.379 The Second, Third, Fifth, and Ninth Circuits have validated this interpretation.380 While immigration judges cannot determine prima facie eligibility, it remains open whether the declaration of prima facie eligibility can come from a district court or not.381 In some cases CIS mistakenly adjudicates naturalization applications while removal proceedings are pending.382 Because CIS does not have authority under INA § 318 to consider the application while removal proceedings are pending, the BIA held that an adjudication of the 378

Matter of Acosta Hidalgo, 24 I&N Dec. 103 (BIA 2007).

379

Id. Note that this prima facie eligibility determination if made may not necessarily bind CIS as to the final decision of the naturalization application once removal proceedings are terminated. Cuong Quang Le v. McNamee, 2006 WL 3004524 *6-7 (D. Oregon 2006). 380 Zegrean v. Attorney General of U.S., 602 F.3d 273, 274 (3rd Cir. 2010); Romero v. AG of the United States, 2010 U.S. App. LEXIS 16667 (3rd Cir. 2010) (nonbinding decision) (“The rule announced in Acosta-Hidalgo is not fundamentally unfair. Congress, which has plenary power over immigration, has granted the Attorney General the ‘sole authority to naturalize persons as citizens of the United States.’ … This authority has been delegated to the DHS.”); Ogunfuye v. Holder, 610 F.3d 303 (5th Cir. 2010); Perriello v. Napolitano, 579 F.3d 135 (2d Cir. 2009) (the regulation does not allow an IJ to terminate removal proceedings unless the alien has obtained an affirmative communication from DHS stating prima facie eligibility for naturalization); Saba-Bakare v. Chertoff, 507 F.3d 337 (5th Cir. 2007); Hernandez de Anderson v. Gonzales, 497 F.3d 927, 934-35 (9th Cir. 2007) (holding that the BIA’s plain reading of 8 CFR. 1239.2(f) in Acosta Hidalgo was not clearly erroneous because the text of the regulation does not specifically authorize Immigration Judges to evaluate prima facie eligibility). 381

See, e.g., Hernandez de Anderson v. Gonzales, 497 F.3d 927, 934-35 (9th Cir. 2007) citing Zayed v. United States , 368 F.3d 902, 907 & n.6 (6th Cir. 2004); Apokarina v. Ashcroft , 232 F. Supp. 2d 414, 417 (ED Pa. 2002); Cuong Quang Le v. McNamee, 2006 WL 30004524, at *4-5 (DC Ore. 2006).

382

See, e.g., Matter of Acosta Hidalgo, supra and Saba-Bakare, supra.

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naturalization application itself is not considered an affirmative communication from CIS.383 This means, however, that CIS has veto power in the decision to terminate removal proceedings. In other words, CIS can simply refuse to provide a statement, thus preventing immigration judges from exercising their discretion to terminate removal proceedings. The BIA and Ninth Circuit have both agreed that CIS has this veto power.384 This means in practice that it will probably be unlikely that many people will be able to obtain a termination of their removal proceedings to move forward with a naturalization application. Moreover, the Second Circuit has clarified that once removal proceedings have commenced, DHS may not consider a naturalization application, so it would be impossible for a non-citizen to establish prima facie eligibility.385 If a person somehow can obtain a prima facie eligibility determination from CIS termination can be useful in at least two situations: (a) where a permanent resident is brought into removal proceedings and, before there is a final order of removal, she applies for naturalization, and (b) where someone first applies for naturalization and then is charged during the naturalization process with being deportable and placed in removal proceedings. In both cases, CIS has the power to determine that the person is prima facie eligible for naturalization and the judge then should have the discretion to terminate removal proceedings and send the person on to continue naturalization. The prima facie eligibility statement, however, does not necessarily bind CIS to grant the naturalization application. In sum, it is up to the discretion of CIS to determine if they want to make a prima facie eligibility determination at all.386 It is unclear whether the applicant can appeal such a 383

Matter of Acosta Hidalgo, supra.

384

In Hernandez de Anderson, supra, the Ninth Circuit held that such veto power does not violate 8 CFR § 1239.2(f) because if DHS fails to state that the person is prima facie eligible then the DHS is virtually certain to deny naturalization. The court also rejected an argument that DHS has been given too much authority over naturalization and removal decisions in this context reasoning that Congress has plenary power over immigration to delegate immigration decision-making authority. See also Matter of Acosta Hidalgo, supra at 107-08. 385 Perriello v. Napolitano, 579 F.3d 135 (2d Cir. 2009). In Perriello, the court explained that the 1990 Immigration Act reformed the naturalization process, eliminating final hearings in federal court and establishing that the sole authority to naturalize persons as citizens was conferred upon the Attorney General. Id. at 139. Also, the Immigration Act froze the processing of naturalization applications while removal proceedings were pending. Id. at 140. The court noted that in Matter of Acosta Hidalgo, the BIA did not take into consideration the Immigration Act’s changes, which “limited administrative review of naturalization applications while removal proceedings [were] pending.” Id. The court held that noncitizens could “no longer apply for naturalization after removal proceedings have commenced and then move for termination of the removal proceedings,” for once removal proceedings have commenced, “DHS [was] barred by the [Immigration Act] from considering an alien’s application.” Id. at 141. 386

Cuong Quang Le, supra (Relying on the BIA’s decision in Matter of Cruz, 15 I&N Dec. 236 (BIA 1975), the District Court of Oregon did not say that CIS must determine prima facie eligibility, but held that on the record INA § 318 and 9th Circuit precedent does not prohibit CIS from making the determination).

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determination if made.387 There are at least three possible scenarios that practitioners should know could occur under such circumstances. 1. The CIS determines that the person is prima facie eligible, the immigration judge can terminate the removal proceedings and the CIS could then adjudicate the naturalization application. If the application is denied, the person may appeal the decision to the district court. 2. If CIS determines that the person is not prima facie eligible, it remains unclear whether the person can appeal such a decision to federal court. At least three Circuit Courts have held that the denial of an application of naturalization on the basis of pending removal proceedings can be appealed, however, review is limited to such denial and cannot extend to determining a naturalization application on the merits.388 3. CIS could deny a naturalization application based on other grounds such as lack of good moral character. The person could appeal the denial to federal court. Also, while there is never anything remotely like a guarantee that CIS will issue a prima facie eligibility statement or an immigration judge will terminate proceedings after it is issued, some practitioners in the past have had successes in this arena. At least two federal courts ordered CIS to find that an applicant had good moral character so that the applicant could request termination of proceedings.389 387

See, e.g., Saba-Bakar v. Chertoff, 507 F.3d 337, 341 (5th Cir. 2007) (“If the statutory framework created by Congress renders the determination of prima facie eligibility for naturalization unreviewable by any court, this may indeed present a persuasive equitable concern. But this concern should be addressed to Congress, not this court.”)

388

Saba-Bakare, supra at 340-41; Bellajaro v. Schiltgen, 378 F.3d 1042, 1046-47 (9th Cir. 2004); Zayed v. U.S., 368 F.3d 902, 906 (6th Cir. 2004). Another argument has been made that while INA § 318 forbids the Attorney General from considering a naturalization application while removal proceedings are pending, it does not preclude the courts from exercising jurisdiction to review denials of naturalization applications when removal proceedings are pending. See Kestelboym v. Chertoff, 538 F. Supp. 2d 813 (DNJ 2008), Gonzalez v. Napolitano, 684 F. Supp. 2d 555 (DNJ 2010). For more information, please see Chapter 11, § 11.3.

389

Gatcliffe v. Reno, 23 F.Supp. 2d 581 (D.V.I. 1998), reported in Interpreter Releases, November 9, 1998, p. 1553 (District Court reversed INS holding that the naturalization applicant could not establish good moral character solely because of events outside the five year period; remanded the case to removal proceedings so that the applicant could apply to terminate proceedings and proceed to naturalization). See also Ngwana v. Attorney General, 40 F. Supp. 2d. 319 (D. Md. 1999) (ordering the INS to naturalize the applicant, at a time when removal proceedings were pending against the applicant, but there was not yet a final order of removal). But some Circuits have held that the federal district courts have limited ability to review a naturalization application when DHS will not grant relief due to pending removal proceedings. Specifically, if the agency did not adjudicate the naturalization application on the merits of the application or the agency did not have the power to adjudication the application under INA § 318, then on appeal that application may not be adjudicated by a district court either. Saba-Bakare, supra at 340-41; Bellajaro v. Schiltgen, 378 F.3d 1042 (9th Cir. 2004); Cuong Quang Le, supra (affirming Bellajaro that the scope of

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How does this provision affect persons convicted of an aggravated felony? Conviction of an aggravated felony is a “permanent” bar to establishing good moral character if, and only if, the conviction occurred on or after November 29, 1990. (The only exception is murder, which is a permanent bar to establishing good moral character regardless of the date of conviction.)390 For example, a person who was convicted of drug trafficking on November 28, 1990 has been convicted of an aggravated felony for many purposes, but not for the purpose of the permanent bar to good moral character. If the person indeed has no other problems within the last five years (or three if applying as the spouse of a U.S. citizen) that would bar a finding of good moral character, and otherwise is eligible for naturalization, the judge arguably has the authority to terminate proceedings under 8 CFR § 1239.2(f) after the person receives a prima facie eligibility statement from CIS. If however, the aggravated felony conviction occurred on or after November 29, 1990, the person is permanently barred from establishing good moral character and thus cannot qualify for naturalization. If a person has established exemplary character during the required five year period (or three years for persons married to U.S. citizens, or one year for persons who served in the military during certain conflicts), then the CIS may not deny naturalization based solely on convictions or other events that took place before the good moral character period.391 G.

Cancellation of Removal or Other Waivers of Deportation.

“Cancellation of removal” under INA § 240A(a) is a relief for long-time permanent residents. The rules governing who is eligible for this relief are somewhat complex. For information on this relief, as well as an update on information about the § 212(d)(11) waiver for certain persons who smuggled only a parent, spouse or child, see Appendix 6-D. In general, remember that a person convicted of an aggravated felony is ineligible for cancellation and

review is limited to only the determination made by the agency); Tellez v. INS, 91 F.Supp.2d 1356 (C.D.Cal. 2000) (upholding denial of applicant’s motion to terminate removal proceedings). 390

Immigration Act of 1990 § 509(b) (aggravated felony convictions dating before November 29, 1990 are not permanent bars to good moral character); MTINA § 306(a)(7) (murder is a permanent bar regardless of date of conviction). See also Santamaria-Ames v. INS, 104 F.3d 1127 (9th Cir. 1996), Castilglia v. INS, 108 F. 3d 1101 (9th Cir. 1997).

391

See, e.g., Hovespian v. Gonzales, 422 F.3d 883, 886 (9th Cir. 2005); Santamaria-Ames v. INS, 104 F.3d 1127 (9th Cir. 1996). See § 6.2 for a list of all cases. A subsequent case, Castiglia v. INS, 108 F.3d. 1101 (9th Cir. 1997) holds that conviction of murder is a permanent bar to establishing good moral character regardless of the date the conviction occurred, so that a person convicted of murder never will qualify for naturalization. Some dicta in that case may appear to imply that conviction of any aggravated felony—and not just of murder—is a permanent bar, but that is not the holding of Castiglia and is explicitly not the rule under the statute. See above footnote.

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almost any immigration relief. Lawful permanent residents with aggravated felony convictions before April 24, 1996 may want to consider requesting “212(c)” relief. See below. Note that even if cancellation or some other waiver is granted, the naturalization applicant may still have good moral character problems. The waivers may help them to avoid deportation, but the CIS could still argue that the person lacks good moral character for naturalization purposes. See the discussion of this topic above. H.

212(c) Relief

Before the IIRIRA lawful permanent residents who were deportable for an offense that had a parallel ground of exclusion (inadmissibility), had resided in the U.S. for seven years and who possessed positive equities were allowed to retain lawful permanent status despite the convictions. Section 212(c) could even be used to waive deportability for an aggravated felony or a drug conviction. With the enactment of the IIRIRA Congress eliminated 212(c) completely. The U.S. Supreme Court, however, in INS v. St. Cyr392 ruled that 212(c) could not be reduced or eliminated for certain individuals who had pled guilty to a deportable offense before the enactment of the Antiterrorism and Effective Death Penalty Act of April 24, 1996 (AEDPA). Therefore, lawful permanent residents with certain convictions prior to AEDPA’s enactment date, or in some cases the effective date of IIRIRA, April 1, 1997, can request 212(c) relief as long as they would have been eligible for 212(c) relief at the time they pled guilty and regardless of when they are placed in removal proceedings. I.

Political Asylum, Family Immigration, and Other Relief

It is possible that a deportable applicant still would be eligible for other forms of immigration relief. See Chapter 14 for a general summary of types of immigration relief. The person should have a full consultation with an expert practitioner.

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121 S. Ct. 2271 (2001).

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APPENDIX 6-C GOOD MORAL CHARACTER One of the requirements for becoming a citizen through naturalization is that an applicant has “good moral character.” This means that the applicant has not done things that American Society considers bad. If you think you have done something that is listed below, you should talk with an expert in immigration law. It might mean you can't become a citizen and even that you could be deported, but it might not. Check with an expert before deciding what to do If you have done any of the acts listed below, the immigration service could deny your naturalization application, and, in some instances, you could be deported from the United States: 1.

2. 3. 4. 5.

6. 7.

8. 9. 10. 11.

12. 13.

Convictions or Admissions of some crimes like murder, rape, prostitution, spousal or child abuse, drug crimes, selling guns, some other violent crimes, theft, and any others that show that you might be dishonest. Some of these types of crimes are a problem even if you weren't convicted of them: just admitting them can be enough to disqualify you from becoming a citizen. If you have sold drugs, you don't even have to admit it: the Immigration Service can keep you from becoming a citizen even if it believes that you have sold drugs. You should talk to someone who knows the law (like a lawyer or legal worker from a community agency) if you have done (or think you might have done) any of these kinds of crimes. Many of these crimes can cause you to be deported. Too much vice, like making a living off gambling or prostitution, being drunk all the time, or having more than one spouse. Lying to get immigration benefits, like using fraudulent documents, getting a green card from a fraudulent marriage, or lying on your naturalization application. You could be deported for these acts. Helping people cross the border illegally. You could be deported for helping someone cross the border illegally. Trying to get out of being drafted into the United States military, unless it was for a reason the U.S. government thinks is legitimate, like applying to be a conscientious objector. Deserting the United States military will create a problem as well. Claiming you are an U.S. citizen or voting illegally in the United States. You could be deported for committing either of these acts. Being involved in certain political activities within the 10 years before applying for naturalization, like being a part of the Communist Party or speaking out in favor of totalitarianism (like Communism or Nazism) or Anarchy. Being in deportation or removal proceedings or if you have been deported. Being on probation or parole for a crime. You can apply but you must complete probation or parole by the time of your interview with the Immigration Service. Lying to get welfare or other public benefits. Not filing tax returns or not paying taxes even though you were required to file them or pay them (some people are not required to file tax returns because they do not make enough money) or underreporting on your tax returns. Not supporting your children, particularly if a court ordered you to pay child support. Failing to register for the Selective Service (i.e., the draft). Prepared by the Immigrant Legal Resource Center – April 2008

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BUEN CARACTER MORAL Uno de los requisitos para hacerse ciudadano a través de la naturalización requiere que el solicitante tenga “buen carácter moral.” Es decir, el solicitante no ha hecho cosas consideradas “malas” por la sociedad estadounidense. Si le aplica alguna de las situaciones abajo mencionadas es mejor que consulte con un experto autorizado en leyes de inmigración. Hay casos en que estas situaciones son impedimentos a la ciudadanía y hasta puede salir deportado. Consulte con un experto antes de tomar una decisión. Algunas de las situaciones listados abajo puede causar el servicio de inmigracion a negar su solicitude de cuidadania y, en ciertos situaciones listados abajo, usted puede ser deportado por la corte de inmigración tambien: 1. Condenaciones por o admisiones a ciertos delitos. Por ejemplo: crimen de violación, prostitución, delitos de violencia doméstica, abuso o negligencia de niños, delitos de drogas, delitos de armas, ciertos delitos violentos, robos, y cualquier otro delito que indique ser deshonesto. Ciertos de estos delitos se vuelven problemas aun cuando no lo hayan encontrado culpable. En otras palabras, tan sólo admitir a algunas de estas situaciones lo puede descalificar para la ciudadanía. Por ejemplo, si ha vendido drogas el Servicio de Inmigracion tiene derecho a negarle la ciudadanía si lo sospecha culpable de vender drogas. Necesita consultar con alguien experto en la ley (ya sea un abogado en leyes migratorias o una persona quien es experta en leyes que trabaje con alguna agencia comunitaria) si ha cometido o cree que pueda haber cometido uno de estos delitos. Ademas, si esta encontrado culpable de algunos delitos, la corte de inmigración le puede deportar. Entonces, tenga cuidado!!! 2. Demasiada “inmoralidad” – por ejemplo, si se gana la vida apostando o´ por la prostitución, si se la pasa embriagado (borracho), o esta casado con mas de una persona. 3. Ha mentido para obtener beneficios migratorios – por ejemplo, ha usado documentos falsos, obtuvo la tarjeta verde por medio de matrimonio malintencionado, incluyó mentiras en la solicitud de la ciudadanía. El Servicio de Inmigración puede negar su solicitud de ciudadania y usted puede ser deportado por estas actividades. 4. Ha ayudado a unda persona a cruzar la frontera ilegalmente. El Servicio de Inmigración puede negar su solicitud de ciudadania y usted puede ser deportado por estas actividades. 5. Ha tratado de eludir enlistamiento en el servicio militar de los EE.UU. A no ser que el gobierno estadounidense considero sus motivos justos (por ejemplo, rehusar participar por conciencia moral o religiosa). Deserción del servicio militar también crea problemas. 6. Ha declarado ser ciudadano estadounidense o ha votado ilegalmente en los EE.UU., o ha registrado para votar ilegalmente. El Servicio de Inmigración puede negar su solicitud de ciudadania y usted puede ser deportado por estas actividades. 7. Ha participado en ciertas actividades políticas durante los 10 años antes de solicitar la cuidadania. Por ejemplo, ser socio del Partido Comunista o declarar públicamente a favor del totalitarismo (Comunismo o Nazismo) o Anarquía. 8. Se encuentra en trámites de deportación o si ha sido deportado antes. 9. Se encuentra en libertad condicional (probation o parole) por algún delito. Puede poner solicitud pero necesita cumplir el plazo de libertad condicional (probation o parol) antes de la fecha de su entrevista con el Servicio de Inmigración. 10. Ha mentido para recibir pensión (welfare) u otros beneficios públicos. 11. No declarar o pagar impuestos cuando le obligan (la declaración de impuestos depende de la cantidad de ingresos a si es que personas que ganan muy poco dinero ha veces no tienen que declarar impuestos) o mintiendo en sus declaracion de impuestos. 12. Descuidar el sostenimiento de los hijos, especialmente si la corte le ha dado órdenes de pagar sostenimiento de hijos (child support). 13. No haberse inscribido en el Servicio Selectivo (draft). Preparado por el ILRC – Abril 2008

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APPENDIX 4-A CHECKLIST TO HELP DETERMINE IF A NATURALIZATION APPLICANT MIGHT LOSE HER GREEN CARD WHILE APPLYING FOR NATURALIZATION Before applying for naturalization, make sure your client is really still a lawful permanent resident, is not removable for being inadmissible at admission (or for any other reason), and that she has not abandoned her residence. If she has done something causing her to no longer be a permanent resident or is removable for any reason, she may be placed in removal proceedings, lose her green card, and be removed as well as be denied naturalization. Below is a checklist of issues to cover with your clients along these lines. Before reviewing the checklist with your clients, make sure to explain the relevance of the list so your client knows why the information the two of you are discussing is important. An informed client always gives more and better information and performs better during the naturalization interview. Did the Applicant Abandon or Disrupt Her Residence? 1. Was the applicant gone from the U.S. for more than six months at any one time? 2. If so, did he live in another country during that time? Is the Applicant or Was the Applicant Ever Deportable or Removable? 1. Has the applicant committed any acts that qualify as grounds of deportability? 2. Is the applicant presently in removal proceedings? 3. Has the applicant ever been deported or removed from the U.S.? Was the Applicant Eligible for an Immigrant Visa When She Applied and Was Admitted? 1. Did the applicant commit visa fraud when she applied for her green card? 2. Did the applicant make a willful and knowing material misrepresentation when she applied for her green card? Was the Applicant Ever Inadmissible at Entry? 1. Has the applicant ever been potentially inadmissible because he received public benefits, committed drug or moral turpitude crimes, committed document fraud, or for whatever other reasons listed in INA § 212(a)? 2. Has the applicant ever left the U.S. as a lawful permanent resident and come back into the U.S. when he was inadmissible (or, depending on when s/he left and came back, was she excludable under the laws at the time)? If so, did s/he make a new admission under INA section 10l(a)(13)(C) (or, depending on when s/he left and came back to the U.S., did s/he make a new “entry” because his/her absence was not “brief, casual, and innocent” and did meaningfully interrupt his/her residence)?

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If the answer to any of these questions is yes, you and your client must research the issue or speak with an expert in immigration law about whether or not your client could not only be denied naturalization, but also be placed in removal proceedings, lose her green card, and be removed from the U.S. You and your client must discuss the risks involved in applying for naturalization and ultimately it will be her decision as to whether or not she wants to continue with his application.

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ATTENTION GREEN CARD HOLDERS: EVEN THOUGH YOU HAVE A GREEN CARD, THE IMMIGRATION SERVICE CAN TAKE IT AWAY AND YOU CAN BE DEPORTED! BE CAREFUL! Just because you have a green card and are a lawful permanent resident doesn’t mean you will automatically remain being a permanent resident and keep your green card t/forever. The Immigration Service can try to take away your green card if: 1) You weren’t originally eligible for your green card but you lied on your application and got it anyway; OR 2) You have done something making you deportable like committed certain bad crimes such as a drug crime, illegally helped anyone including a relative enter the U.S., or for other reasons; OR 3) You have left the U.S. and upon returning you fall into one of the grounds of exclusion because you have committed certain bad crimes such as a drug crime, may have trouble supporting yourself in the future, illegally helped anyone including a relative enter the U.S, or for other reasons; OR 4) You abandoned your residence by moving from the U.S. to another country to live permanently. This can cause you to lose your green card even if you change your mind and decide to move back to the U.S. If you think you might fit into any of these categories, call a trusted lawyer or community agency and ask questions about your green card. If the Immigration Service tries to takes away your permanent residence and green card you have certain rights: 

You are allowed to have a hearing in front of an immigration judge and you can have a lawyer represent you at the hearing.



Sometimes it’s hard for the Immigration Service to prove everything they need to for them to take away your green card. Other times, you may be eligible for a waiver or pardon for what you’ve done.



Don’t sign anything until you speak with a trusted lawyer or other official at a community agency which you trust.



If the Immigration Service arrests you, you have the right to call a lawyer. The Immigration Service must give you a copy of a list of free lawyers and community agencies that can help you. Prepared by the Immigrant Legal Resource Center – October 2006

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¡ATENCION RESIDENTES PERMANENTES LEGALES! AUNQUE USTED TENGA UNA TARJETA PERMANENTE, LA INMIGRACION PUEDE QUITARSELA Y PUEDE SER DEPORTADO. ¡TENGA CUIDADO! No solo porque tiene su tarjeta permanente y es un residente permanente legal quiere decir que automáticamente va a quedar como residente permanente para siempre. Los agentes de la Inmigración pueden tratar de quitarle la tarjeta si: 1) No fue elegible para recibirla cuando la recibió, pero mintió en su aplicación y la recibió de todos modos; O 2) Hizo algo que quiere decir que pueden deportarlo, como cometer algunos crímenes muy malos como un crimen que tiene que ver con drogas, ayudó a otra persona a entrar a los EEUU sin papeles, o por otras razones; O 3) Ha salido de los EEUU y al regresar usted es parte de una clase de personas que son excluidas de los EEUU porque usted ha cometido ciertos crímenes malos como involucrarse con drogas, o ayudó a otra persona a entrar a los EEUU sin papeles, o por otras razones; O 4) Usted abandonó su residencia en los EEUU porque salió de los EEUU con la intención de cambiarse a otro país permanentemente. Así puede perder su tarjeta aunque cambie su opinión y regrese a los EEUU para vivir. Si piensa que tal vez sea parte de cualquier de estas clases, llame a un abogado con el cual tiene confianza o a una agencia de la comunidad y hágales preguntas sobre su estado legal y su tarjeta. Si los agentes de la Inmigración tratan de quitarle la residencia permanente y su tarjeta permanente usted tiene ciertos derechos: 

Tiene el derecho de tener una audencia ante un juez de la corte de inmigración y puede tener un abogado para representarlo.



A veces es difícil que el Servicio de Inmigración pruebe todo lo que se necesita para que puedan quitarle la tarjeta. A veces usted podrá ser elegible para obtener un "perdón" por lo que ha hecho.



No firme nada hasta que haya hablado con un abogado con el cual Ud. tiene confianza u otro trabajador de una agencia de la comunidad con la cual Ud. tiene confianza.



Si los agentes del Servicio de Inmigración lo arrestan, tienen que permitirle usar el teléfono para llamar a un abogado. Los agentes del Servicio de Inmigración deben darle una lista de abogados que no cobran y agencias de la comunidad que le pueden ayudar. Preparado por el Immigrant Legal Resource Center – Octubre 2006

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APPENDIX 4-B ATTENTION GREEN CARD HOLDERS: EVEN THOUGH YOU HAVE A GREEN CARD, IF YOU MOVE TO LIVE IN ANOTHER COUNTRY THE IMMIGRATION SERVICE CAN TAKE AWAY YOUR GREEN CARD. IF YOU DON'T WANT TO LOSE YOUR GREEN CARD, BE CAREFUL! Just because you have a green card and are a lawful permanent resident doesn't mean you will automatically remain a permanent resident and keep your green card forever. The Immigration Service can try to take away your green card if you abandoned your residence by moving from the U.S. to another country to live. This can cause you to lose your green card even if you change your mind and decide to move back to the U.S. Upon returning to the United States from another country or when applying for naturalization, the Immigration Service may ask you questions about how your absence from the United States. It is important to know whatever you tell the Immigration Service can be used as evidence against you. It is important to know the following:    

Generally if you intended to leave the United States and move to another country, you may lose your green card. You must show to the Immigration Service or the immigration judge that you did not move to another country but only went for a visit. Try to show that originally you intended to leave the United States for a short visit but an emergency (such as a medical reason or business reason) made you stay longer. You must show that when you left the United States you did not intend to move to another country but always intended to return to the United States after a relatively short period of time because you were only visiting the other country. If possible, show that you kept ties to the United States while you were gone. Anything you can think of which helps show you meant to return to the United States to live will be helpful. Some examples of proofs which other clients have used include: you kept paying the rent for your apartment, your boss kept your job open for you, your children or other family members stayed in the United States, you kept a bank account in the United States, and you paid or filed your United States taxes.

If you think you might have abandoned your residence and could lose your green card, it may be best not to apply for naturalization. You must call a trusted lawyer or community agency and ask questions about your green card before applying for naturalization. If the Immigration Service tries to take away your permanent residence and green card you have certain rights:    

You are allowed to have a hearing in front of an immigration judge and you can have a lawyer represent you at the hearing. Sometimes it's hard for the Immigration Service to prove everything they need to for them to take away your green card. Don't sign anything until you speak with a trusted lawyer or other official at a community agency which you trust. If the Immigration Service arrests you, they must allow you to call a lawyer. The Immigration Service should give you a copy of a list of free lawyers and community agencies that can help you. Prepared by the Immigrant Legal Resource Center – January 2008

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¡Atención residentes permanentes legales! Aunque tiene su tarjeta permanente, si se va a vivir en otro país la Inmigración puede quitarle su tarjeta. Si no quiere perder su tarjeta permanente, tiene que tener cuidado. No solo porque tiene una mica permanente y es un residente permanente legal quiere decir que automáticamente va a quedarse en este estado legal para siempre. Los agentes de la Inmigración pueden tratar de quitarle la tarjeta si usted abandona su residencia al cambiarse a otro país. En este caso puede perder su tarjeta aunque cambie de opinión y decida a regresar a los EEUU. Al regresar a los EEUU de otro país o al aplicar por la ciudadania, los agentes de la Inmigración pueden hacerle preguntas sobre el tiempo que pasó fuera de los EEUU. Es importante saber que lo que les dice a la Inmigración puede ser usado como evidencia contra usted. También es importante saber lo siguiente: 

En general si usted tenía la intención de salir de los EEUU y vivir (hacer su residencia) en otro país, puede perder su tarjeta.



Tiene que probar a la Inmigración o al juez de Inmigración que usted no tenía la intención de cambiarse al otro país, pero que nada más quería hacer una visita. Trate de demostrar que usted tenía la intención de salir de los EEUU por una visita corta, pero tuvo una emergencia (como una razón médica o una razón de trabajo) y tuvo que quedarse más tiempo.



Usted tiene que demostrar que cuando se fue de los EEUU no tenía la intención de cambiarse a otro país, pero que siempre tenía la intención de regresar a los EEUU despues de un periodo pequeno porque nada más se fue de visita a otro país.



Si es posible, demuestre que tenía conexiones en los EEUU durante el tiempo que no estaba aquí. Cualquier cosa que le puede pensar le va a ayudar. Unos ejemplos de lo que han usado otros clientes en el pasado son: continuaba pagando la renta para su apartamento, su patron guardaba su trabajo para usted, sus niños u otros parientes se quedaban en los EEUU cuando usted se fue a su país, mantenía una cuenta en el banco en los EEUU, y usted sometió sus impuestos ("taxes").

Si usted cree que tal vez haya abandonado su residencia y que pueda perder su mica, quizas seria mejor no aplicar para la ciudadania. Llame a un abogado con el cual usted tiene confianza y haga preguntas sobre su tarjeta legal. Si los agentes de la Inmigración tratan de quitarle la residencia permanente y su tarjeta, tiene ciertos derechos:    

Tiene el derecho de tener una audencia ante un juez de Inmigración y puede tener un abogado para representarlo. A veces es difícil que la Inmigración pruebe todo lo que se necesita para que puedan quitarle la tarjeta. No firme nada hasta que haya hablado con un abogado con el cual tiene confianza u otro trabajador en una agencia de la comunidad con el cual tiene confianza. Si la Inmigración lo arresta, tienen que permitirle usar el teléfono para llamar a un abogado. La Inmigración debe darle una lista de abogados y agencias de la comunidad que le pueden ayudar sin cobrar. Preparado por el Immigrant Legal Resource Center – Enero 2006

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