Aggravated Felonies

 

An aggravated felony conviction constitutes a permanent statutory bar to establishing Good Moral Character if the conviction occurred on or after November 29, 1990.[183] 

 

Good Moral Character is required for eligibility for various immigration benefits, including naturalization,[184] cancellation of deportation for non-lawful permanent residents, [185] former suspension of removal,[186] NACARA suspension and special cancellation,[187] registry,[188] certain benefits under the Violence Against Women Act,[189] certain types of adjustment of status,[190] and voluntary departure subsequent to the completion of removal proceedings.[191]  The bars to Good Moral Character are listed at INA § 101(f).[192] 

 

These bars generally only apply for a specified period of time immediately preceding application for the immigration benefit which varies according to the specific benefit.  In some cases, the immigration authorities have also considered periods in which a noncitizen is on probation or parole following commission of a barring offense as not counting toward a required period of Good Moral Character, although the statute does not provide for this, and this practice can be challenged in immigration or federal court.

 

In determining Good Moral Character, an immigration judge or other reviewing authority may take into account criminal acts for which the noncitizen was not convicted, as well as convictions that have been expunged, as long as the noncitizen has admitted commission of the acts.[193]  However, a criminal act not resulting in a conviction, that would not be considered a bar if the act did result in a conviction, should not bar a noncitizen from showing Good Moral Character.[194]

[183] Immigration Act of 1990, § 509(a); INS, Office of the General Counsel, Genco Opinion No. 96-16, 74 Interpreter Releases 1515, 1530 (Oct. 6, 1997).

[184] See § 2.24, infra.

[185] INA § 240A(b)(1)(B), 8 U.S.C. § 1299b(b)(1)(B) (10 years prior to application).

[186] Former INA § 244(a)(1), 8 U.S.C. § 1254(a)(1) (1995).

[187] 8 C.F.R. § § 240.65, 240.66 (varies).

[188] INA § 249(c), 8 U.S.C. § 1259(c) (at time of application).

[189] INA § 240A(b)(2)(A)(iii), 8 U.S.C. 1229b(b)(2)(A)(iii) (3 years); but see INA § 240A(b)(2)(C), 8 U.S.C. 1229b(b)(2)(C) (exception where commission of act was connected to battery or extreme cruelty).

[190] See, e.g., INA § 245A, 8 U.S.C. § 1255a (no period indicated) (for noncitizens described in INA § § 101(a)(15)(A) and (G), 8 U.S.C. § § 1101(a)(15)(A) and (G)).  See also § 2.38, infra (VAWA).

[191] INA § 240B(b)(1)(B), 8 U.S.C. 1229c(b)(1)(B) (5 years).

[192] Seeking admission after removal is no longer listed as a bar to good moral character. Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (Jan. 5, 2006) (amending INA § 101(f)(3), 8 U.S.C. § 1101(f)(3)).

[193] Ikenokwalu-White v. INS, 316 F.3d 798 (8th Cir. Jan. 21, 2003) (immigration courts may consider Kansas misdemeanor convictions for theft, battery, and welfare fraud, even though they had been expunged pursuant to a state rehabilitative statute, in making a good moral character determination).

[194] See Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir. 2000) (use of false social security number does not preclude showing of good moral character since conviction of the offense would not do so).  The circumstances of the offense, however, can be weighed as a discretionary factor.