The government’s regulations leave no doubt that the standard for determining good moral character can be a subjective one.  8 CFR  § 316.10(a)(2) provides that the United States Citizenship and Immigration Service (“USCIS”) “shall evaluate claims of good moral character on a case-by-case basis taking into account the elements enumerated in this section and the standards of the average citizen . . . .”  The problem with using an “average citizen” standard when determining good moral character is that individual examiners will often differ on just what an average citizen would find to be good moral character.   Thus, the subjective element of the law leaves too much room for arbitrary, fluctuating standards.  Because of the uncertainty created by this subjective element, I recommend that anyone facing even the smallest issue involving good moral character hire a strong advocate to represent him or her in the adjudication process.    

What is not Good Moral Character?

In many instances, the government clearly states what is “not” good moral character.  For example, pursuant to 8 CFR § 316.10(b), the USCIS will find, with few exceptions, that a person does not have good moral character if, among other things, the person has been:

• Convicted of murder;
• Convicted of an aggravated felony;
• Committed one or more crimes involving moral turpitude;
• Committed two or more offenses for which he or she was convicted and the aggregate sentence imposed was five years or more;
• Violated any law related to a controlled substance (but not including a single offense for simple possession of 30 grams or less of marijuana);
• Is or was confined to a penal institution for an aggregate of 180 days based on a conviction or convictions;
• Has given false testimony to obtain an immigration benefit;
• Is or was involved in prostitution or commercialized vice;
• Committed two or more gambling offenses;
• Derives his or her principal income from illegal gambling activities; or
• Is or was a habitual drunkard.

What conduct “may” preclude a finding of Good Moral Character?

The subjective gray area involving what may preclude a finding of good moral character is very large.  8 CFR § 316.10(b)(3) provides the following:

“Unless the applicant establishes extenuating circumstances, the applicant shall be found to lack good moral character if, during the statutory period, the applicant:
               

• Willfully failed or refused to support dependents;
• Had an extramarital affair which tended to destroy an existing marriage; or
• Committed unlawful acts that adversely reflect upon the applicant’s moral character, or was convicted or imprisoned for such acts, although the acts do not fall within the purview of Sec. 316.10(b)(1)(2).”

In addition, INA 101(f) provides that the fact that a person has not committed acts proscribed in applicable laws involving good moral character “shall not preclude a finding that for other reasons such person is or was not of good moral character.”  This catch-all provision means that the USCIS can consider a broad array of behaviors in making good moral character determinations.  Since the USCIS is charged with making immigrant status determinations, it will sometimes focus on a prior status or immigration violation as a basis for a negative determination on good moral character.  Applicants would be well-advised to be prepared to explain any possible issues in prior immigration applications, involvement in any legal proceedings, or unusual divorce or custody issues.

How long must a person maintain good moral character?

“An applicant for naturalization bears the burden of demonstrating that, during the statutorily prescribed period, he or she has been and continues to be a person of good moral character.”   This time “includes the period between the examination and the administration of the oath of allegiance.”  8 CFR § 316.10(a)(2). 

The statutory period for maintaining good moral character varies.  Normally, the period is five years, but sometimes it is less.  For example, for people married to a U.S. citizen for three years, the statutory period is three years.  INA § 319(a).   For some with military service, the statutory period is one year.  See e.g. 8 CFR § 329.2(d).   

Is the government limited to reviewing behavior occurring during the statutory period for determining good moral character?

The USCIS sometimes peers deeply into an applicant’s past to look for skeletons.  By regulation, it is authorized to examine and consider, as a basis for its determination, conduct occurring at any time prior to the statutory period.  8 CFR § 316.10(a)(2).  Nevertheless, because the statutory period must count for something, the USCIS is not given unfettered authority to make decisions solely based on conduct occurring long into the past.  If a naturalization applicant’s conduct doing the statutory period reflects reform of character from an earlier period, the USCIS should make a favorable determination on good moral character. 

There are two instances when conduct occurring long before the beginning of the statutory period for determining good moral character can serve solely as the basis for a negative determination.   Indeed, an applicant cannot demonstrate good moral character if he or she was ever convicted of the crime of murder.  If an applicant committed an aggravated felony at any time after November 29, 1990, he or she is similarly barred from establishing good moral character.  An aggregated felony is any of several serious crimes listed in INA § 101(a)(43).  

Applicants who have paid for past crimes may or may not be able to naturalize.  Those who have not completed their parole, probation, or a suspended sentence, are not eligible to establish good moral character.  Those who completed their parole, probation, or a suspended sentence during the requisite statutory period are not precluded from naturalizing, but USCIS officers will be able to consider these circumstances in making their determinations.

Conclusion

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