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Past Arrest & U.S. Citizenship? How “Good Moral Character” Impacts Your Application

For the majority of cases, I always encourage my clients who are eligible to apply for US Citizenship. The reason being is that a Green Card can be taken away, while citizenship cannot. However, there are certain times when I have to tell the potential client to hold off on applying for citizenship because it might harm them rather then help them. In order to acquire citizenship, “good moral character” must be maintained within the five years preceding the citizenship application. If the person applying for citizenship is found not to have “good moral character” the application for citizenship can be denied and the person could even get deported. So, it is important to note what precludes establishing “good moral character”.

I.    Conviction of Aggravated Felony precludes establishment of Good Moral Character for US citizenship application

Pursuant to 8 U.S.C 1101 (48)(f)(8), no person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was convicted of an aggravated felony.
8 U.S.C 1101 (43) (G) defines an “aggravated felony”, amongst others, to include a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year. 8 U.S.C 1101 (48)(A) defines the term “conviction” to be a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. 8 U.S.C 1101 (48)(B) states that any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.

II.    Conviction of a Crime of Moral Turpitude Precludes Good Moral Character

According to 8 CFR 316.10, an applicant shall be found to lack good moral character if during the statutory period the applicant committed one or more crimes involving moral turpitude, other than a purely political offense, for which the applicant was convicted. A crime of moral turpitude is an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man. Generally, a crime involving dishonesty or false statement is considered to be one involving moral turpitude. See, Walker v. United States AG, 783 F. 3d 1126 (11th Circuit Court of Appeals, 2015); Fajardo v. U.S. Att’y Gen., 659 F. 3d 1013, 1305(11th Cir. 2011).

According to Matter of Grullon, 20 I. & N. Dec.12; 1989 BIA Lexis 9, (attached)  a conviction does not exist for immigration purposes where an alien’s criminal charges were dismissed without prejudice following his successful completion of a pretrial intervention program. This holding stems from Matter of Ozkok, 19 I &N Dec. 546 (BIA 1988) which set forth a new standard for determining whether a conviction exists for immigration purposes. According to Ozkok, if there has been no adjudication of guilt, a conviction will be found only where the alien has pleaded guilty or nolo contendere or was found guilty of the charge against him; the judge ordered some form of punishment, penalty, or restraint of liberty to be imposed; and a judgment or adjudication of guilt may be entered without further proceedings regarding guilt or innocence of the person violated the terms of his probation or failed to comply with the requirements of the court’s order.

As noted above, if you know of anyone with a green card who would like to apply for citizenship but has been arrested before, it is of utmost importance to hire an attorney to analyze the criminal dispositions or lack thereof to determine the best path forward in applying for US Citizenship

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