Late last year, USCIS adopted two significant policy changes pertaining to Good Moral Character for naturalization petitions. (Every applicant must demonstrate Good Moral Character in order to become a US Citizen.) The first one, which we previously covered, pertained to drunk driving convictions and how two or more convictions raised a rebuttable presumption against a finding of good moral character. The second change is equally troubling and concerns unlawful bad acts which can militate against and render someone ineligible to naturalize. In its new policy guidance, the agency has gone ahead and fleshed out examples recognized by caselaw that can constitute a disqualifying “unlawful act.” Some of them include but are not limited to:
· Bail jumping
· Bank fraud
· Conspiracy to distribute a controlled substance
· Failure to file or pay taxes
· Falsification of records
· False claim to US citizenship
· Insurance fraud
· Obstruction of justice
· Sexual assault
· Social security fraud
· Unlawful harassment
· Unlawfully registering to vote
· Unlawful voting
· Violating a US embargo
According to the Policy Manual, officers are obligated to conduct a case-by-case analysis to determine whether the act adversely reflects on the applicant’s good moral character and weigh the existence of any extenuating circumstances. However, it is important to note that a finding of unlawful act(s) does not technically require the applicant to have been charged with, let alone convicted of the offense. Adjudicators are to identify the applicable law and determine whether the applicant’s conduct violated the law-regardless of whether civil or criminal proceedings were initiated or concluded. In determining whether the applicant committed the offense, an officer may base his/her finding on a record of conviction; an admission to the elements of the criminal or civil offense; or any other relevant, reliable evidence in the record showing commission of the unlawful act.
Despite the new guidance, it is important to remember that the unlawful act must have occurred during the statutory period under consideration. For most applicants, the statutory period is the five years preceding the application and up through the time of the interview; under certain circumstances, the statutory period is three years, if the applicant has been a permanent resident for at least three years and married and living in marital union with a US Citizen spouse for at least three years preceding the application.
All of these policy changes point towards a higher level of scrutiny for the new year. Officers are now being vested with unprecedented discretion and new tools with which to potentially stymie an applicant’s application for citizenship.
The above is general information only. It is not intended as legal advice nor intended to create an attorney-client relationship. If you need advice, please consult with an attorney.