Most people are aware that a criminal record may complicate and sometimes pose a bar to citizenship. However, having a clean record does not necessarily ensure that a naturalization application will be approved. Interestingly, there are several types of acts or conduct that USCIS may consider conditional bars to citizenship if they occur within the “statutory period” under evaluation (five years prior to the N-400 application, for most applicants). Under the Immigration and Nationality Act (“INA”) and Code of Federal Regulations (“CFR”), officers are entitled to evaluate and determine whether certain specified acts, offenses, activities, or circumstances reflect poorly on or militate against an applicant’s “good moral character,” which is a fundamental requirement for citizenship.
Adultery, for example, is conduct that an officer may base a denial on. In fact, the INA states: “Unless the applicant establishes extenuating circumstances, the applicant shall be found to lack good moral character if, during the statutory period, the applicant…had an extramarital affair which tended to destroy an existing marriage”(emphasis added). What one needs to understand is that applying for naturalization is exactly that: one is applying; one is not entitled. The mere fact that one has resided here as a permanent resident for more than 20 years and speaks English fluently does not, by itself, establish that the requirements for naturalization, as set out in our federal laws, have been met. The apparent simplicity of the process can be deceiving and belie how thorough an examination of one’s character can come into play. An applicant does not simply show up for an interview to answer ten history questions, although, of course, that will be expected of him/her. The applicant must also demonstrate that he/she is essentially fit to be a US Citizen, which is generally why permanent residents with criminal records are often denied. With respect to adultery, cheating on one’s spouse is not only personally reprehensible, but also a rare instance in which moral choices carry immigration ramifications. You certainly won’t be deported for it, but you could be denied citizenship.
Fortunately, the law does envision situations where there may be extenuating circumstances. Like most things in life, there are two sides to any story, and USCIS recognizes that in some cases, it is fair to place an extra-marital affair within its proper context. Some “extenuating circumstances” that may overcome an adverse good moral character finding include:
· Instances where the applicant divorced his or her spouse but later the divorce was deemed invalid or
· The applicant and spouse mutually separated and they were unable to obtain a divorce.
Given how personal and sensitive a topic this is, one may feel tempted to just lie about one’s conduct. Lying to an immigration officer, however, is not only potentially criminal, but it is also unethical. Moreover, if an officer determines that an applicant has lied or attempted to deceive, the applicant shall be denied under a different provision of good moral character, which pertains to false testimony. The USCIS Policy Manual indicates “false testimony occurs when the applicant deliberately intends to deceive the US Government while under oath in order to obtain an immigration benefit. This holds true regardless of whether the information provided in the false testimony would have impacted the applicant’s eligibility….while the most common occurrence of false testimony is failure to disclose a criminal or other adverse record, false testimony can occur in other areas…[and] may include…marital status or infidelity.” So the solution is not to lie, but rather to speak with an attorney before you apply to determine what type of impact your personal behavior can have on your application.
The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.