(H)  Juveniles.  A child who is under 14 years of age is presumed to be a person of Good Moral Character for purposes of obtaining adjustment of status under the Violence Against Women Act.[122]  It is unclear whether this presumption also applies to other Good Moral Character determinations, such as for naturalization.  A juvenile convicted as an adult may be found to lack Good Moral Character.[123]  See § 12.37(C), supra.

 

[122] 8 C.F.R. § 204.2(e)(2)(v).

[123] Matter of CM, 9 I. & N. Dec.  487 (BIA 1961).

POST CON RELIEF " SENTENCE " IMMIGRATION CONSEQUENCES " REDUCTION OF SENTENCE INEFFECTIVE
Matter of Garcia-Mendoza, unpublished (BIA Feb. 15, 2013) (A200 582 682) (actual confinement of 180 days or more constitutes a statutory bar to showing good moral character, even after state court nunc pro tunc sentence reduction of the sentence imposed to 166 days).

BIA

RELIEF " GOOD MORAL CHARACTER " STATUTORY BARS " ACTUAL CONFINEMENT OVER 180 DAYS "
Matter of Valdovinos, 18 I&N Dec. 343, 344 (BIA 1982) (incarceration in a minimal security area with work furlough counts towards the 180 days for the statutory bar to showing Good Moral Character, under INA 101(f)(7), 8 U.S.C. 1101(f)(7)). Thanks to Kathy Brady. http://www.justice.gov/eoir/vll/intdec/vol18/2929.pdf

GOOD MORAL CHARACTER " 180-DAY CONFINEMENT " EFFECT OF SENTENCE REDUCTION
AILA Amicus Brief on Statutory Bar to Good Moral Character http://www.aila.org/content/default.aspx?docid=50582 AILA amicus brief filed with the Tenth Circuit arguing that a sentence reduction is entitled to full faith and credit for purposes of calculating the 180-day confinement period found in the statutory bar to good moral character at INA 101(f).

POST CON RELIEF " SENTENCE " IMMIGRATION CONSEQUENCES " REDUCTION OF SENTENCE INEFFECTIVE
Matter of Garcia-Mendoza, unpublished (BIA Feb. 15, 2013) (A200 582 682) (actual confinement of 180 days or more constitutes a statutory bar to showing good moral character, even after state court nunc pro tunc sentence reduction of the sentence imposed to 166 days).

GOOD MORAL CHARACTER - PETTY OFFENSE EXCEPTION
Matter of Gonzalez-Zoquiapan, 24 I. & N. Dec. 549 (BIA Jun. 25, 2008) (reaffirming that CMT offense that falls within petty offense exception to inadmissibility does not create bar to good moral character), following Matter of Garcia-Hernandez, 23 I. & N. Dec. 590, 593 (BIA 2003).

GOOD MORAL CHARACTER - FALSE CLAIM TO US CITIZENSHIP - I-9 FORM
Matter of Guadarrama, 24 I&N Dec. 625 (BIA 2008) (a noncitizen who made a false claim of citizenship by checking the "citizen or national" box on an I-9 is not necessarily a person lacking in good moral character).

GOOD MORAL CHARACTER - UNDERPAYMENT OF INCOME TAXES
Matter of Locicero, 11 I&N Dec. 805 (BIA 1966) (an individual who had knowingly provided fraudulent information on his income tax returns for two years, by underreporting, was not a person of good moral character). Note: The Board has found that failure to file tax returns is not necessarily a bar to good moral character, citing Matter of T, 1 I&N Dec. 158 (BIA 1941), Matter of Carbajal, Int. Dec. 2765 (Comm. 1978). Thanks to Susan Compernolle.

GOOD MORAL CHARACTER - REGULATIONS
United States v. Dang, 488 F.3d 1135 (9th Cir. May 24, 2007) (8 C.F.R. 316.10(b)(3)(iii), barring good moral character based on commission of "unlawful acts that adversely reflect upon the applicants moral character, or was convicted or imprisoned for such acts" is not ultra vires to INA 101(f); nor is the regulation unconstitutionally vague, as applied to respondent who set fire to own vehicle with intent to defraud insurance company).

Second Circuit

GOOD MORAL CHARACTER
Sumbundu v. Holder, 602 F.3d 47 (2d Cir. Apr. 7, 2010) (failing to file tax return, or underrepresenting income, over a number of years constitutes a lack of good moral character under catchall provision of 8 U.S.C. 1101(f)).

JUDICIAL REVIEW - GOOD MORAL CHARACTER
Sumbundu v. Holder, 602 F.3d 47 (2d Cir. Apr. 7, 2010) (court has jurisdiction to review the DHS moral character determinations made pursuant to the catchall provision of 8 U.S.C. 1101(f), at least when the petitioners raise "constitutional claims or questions of law," 8 U.S.C. 1252(a)(2)(d)).

GOOD MORAL CHARACTER - DATE OF CONVICTION
Puello v. BCIS, 511 F.3d 324 (2d Cir. Dec. 20, 2007) (under INA 101(f)(8), 8 U.S.C. 1101(f)(8), the date of conviction is the date of sentence: "In sum, we hold that, under the plain meaning of the definition of "conviction" in 8 U.S.C. 1101(a)(48)(A), the entry of a "formal judgment of guilt . . . by a court" occurs when judgment is entered on the docket, not when a defendant pleads guilty."); see Perez v. Elwood, 294 F.3d 552, 562 (3d Cir. 2002) (the date of conviction under the INA is the date of either sentencing or entry of judgment on the docket); Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004) (an Alford plea coupled with a sentence constitutes a conviction under the INA, and noting that "Congress focused the sanction of removal on a criminal conviction as opposed to an admission of guilt"); Mugalli v. Ashcroft, 258 F.3d 52, 62 (2d Cir. 2001) (in the deportation context, a New York state conviction mitigated by a Certificate of Relief is still a conviction under the INA because the defendant "entered a plea of guilty, and the court entered a formal judgment of guilt").

GOOD MORAL CHARACTER " PARKING TICKETS
Yin-Shing Woo v. U.S., 288 F.2d 434 (2d Cir. 1961) (finding good moral character despite the applicant's arrest for failure to pay 23 parking tickets); In re Naturalization Petition of Odeh, 185 F.Supp. 953, 955 (E.D. Mich. 1960) (finding good moral character despite the applicant's 16 traffic tickets, 14 of which were moving violations).

Lower Courts of Second Circuit

GOOD MORAL CHARACTER - DOMESTIC VIOLENCE
Szpak v. DHS, __ F.Supp.2d __, 2007 WL 2128366 (E.D.N.Y. Jul. 25, 2007) (domestic violence arrests 10 years prior to naturalization application do not bar a showing of good moral character where applicant has demonstrated rehabilitation).

Fourth Circuit

GOOD MORAL CHARACTER " 180 DAYS IN JAIL
Tiscareno-Garcia v. Holder, __ F.3d __ (4th Cir. Mar. 6, 2015) (noncitizen barred from showing good moral character for purposes of cancellation of removal application since noncitizen served 181 days in jail for illegal re-entry).

GOOD MORAL CHARACTER " ALIEN SMUGGLING
Ramos v. Holder, 660 F.3d 200 (4th Cir. Oct. 27, 2011) (respondents lacked good moral character because they sent money to their children in order to assist them to enter the U.S. without inspection, which was a sufficient act to constitute alien smuggling).

Fifth Circuit

GOOD MORAL CHARACTER " 180 DAYS JAIL
Rodriguez-Avalos v. Holder, __ F.3d __ (5th Cir. Mar. 4, 2015) (noncitizen cannot show 10 years good moral character prior to final administrative decision in non-LPR cancellation of removal application where noncitizen served 180 days or more in jail during such period).

GOOD MORAL CHARACTER " STATUTORY BARS " SERVICE OF 180 DAYS IN CONFINEMENT
Gomez-Lopez v. Ashcroft, 393 F.3d , 886 (9th Cir. 2005) (good moral character statutory bar covers confinement in any facility"whether federal, state, or local"as a result of conviction, for the requisite period of time, falls within the meaning of [8 U.S.C.] 1101(f)(7).") (emphasis added). NOTE: If the client received credit for time served prior to conviction, and would not otherwise be subject to the 1101(f)(7), you should preserve the argument that Arreguin-Moreno v. Mukasey, 511 F. 3d 1229 (9th Cir. 2008), and Matter of Valdovinos, 18 I&N Dec. 343 (BIA 1982), were wrongly decided. This issue is currently being litigated in the 10th Circuit. Thanks to Ben Winograd.

GOOD MORAL CHARACTER - STATUTORY BAR
Singh v. Holder, 568 F.3d 525 (5th Cir. May 14, 2009) (aggravated felony crime of violence conviction occurred after November 29, 1990, and thus constituted a permanent bar to showing good moral character for purposes of naturalization, under INA 101(f)(8), 8 U.S.C. 1101(f)(8), where the sentence of one year or more occurred after that date, even though the plea of guilty occurred prior to that date); accord, Puello v. Bureau of Citizenship and Immigration Servs., 511 F.3d 324, 329 (2d Cir. 2007) (under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), "formal judgment of guilt" is defined by reference to Federal Rule of Criminal Procedure 32(k)(1), which provides that "[i]n the judgment of conviction, the court must set forth the plea, the jury verdict or the court's findings, the adjudication, and the sentence.")emphasis added); Perez v. Elwood, 294 F.3d 552, 562 (3d Cir. 2002) (same).

GOOD MORAL CHARACTER - FAILURE TO FILE CURRENCY REPORT
Angel v. Chertoff, ___ F.3d ___, 2007 WL 3085962 (5th Cir. Oct. 22, 2007) ("[I]n July 2004, Angel attempted to enter Mexico from Laredo, Texas. An inspection by United States Customs and Border Protection revealed that Angel had secreted more than $90,000.00 in unreported cash in an ice chest. In July 2006, Angel pled guilty to the offense of failing to file a currency and monetary instrument report in violation of 31 U.S.C. 5316(a)(1)(B) and 5322(a). He was fined and sentenced to three years probation. ... [T]he reporting violation is the only criminal mark on Angels record in his 30 years in the United States. Accordingly, the Court finds that, having weighed all the factors, Angel has established that he is a person of good moral character. As Angel has established that he meets the other requirements of 8 U.S.C. 1427(a), the Court finds that he meets all the requirements necessary to qualify for American citizenship. For the foregoing reasons, the Court GRANTS Plaintiffs Motion for Summary Judgment (Doc. 13) and declares that he is eligible to become a naturalized citizen of the United States of America.").

GOOD MORAL CHARACTER - FALSE TESTIMONY - MATERIALITY REQUIREMENT
Gonzalez-Maldonado v. Gonzales, 487 F.3d 975 (5th Cir. May 25, 2007) ("Gonzalez's misrepresentation [putting attorney's address in a different state as his own on an immigration application] is immaterial because his address had no bearing on his receipt of immigration benefits.").

GOOD MORAL CHARACTER - FALSE TESTIMONY - SUBJECTIVE INTENT TO OBTAIN BENEFITS
Gonzalez-Maldonado v. Gonzales, 487 F.3d 975 (5th Cir. May 25, 2007) ("A person does not have good moral character if he "has given false testimony for the purpose of obtaining any benefits under this chapter." 8 U.S.C. 1101(f)(6). "[T]estimony is limited to oral statements made under oath . . . [and] with the subjective intent of obtaining immigration benefits." Kungys v. United States, 485 U.S. 759, 780, 108 S. Ct. 1537, 1551 (1988); see also Beltran-Resendez v. INS, 207 F.3d 284, 287 (5th Cir. 2000)."; A finding that Gonzalez has given false testimony is alone insufficient to establish that he lacks good moral character. See 8 U.S.C. 1101(f)(6). The statute also provides that the misrepresentation must have been "made with the subjective intent of obtaining immigration benefits." Kungys, 485 U.S. at 779-80, 108 S.Ct. at 1551; respondents false testimony regarding his address, in the course of an asylum interview, is not a bar to good moral character in this case, since the false testimony was not given with intent to obtain any immigration benefit).

GOOD MORAL CHARACTER - FALSE TESTIMONY - MATERIALITY REQUIREMENT
Gonzalez-Maldonado v. Gonzales, 487 F.3d 975 (5th Cir. May 25, 2007) ("Gonzalez's misrepresentation [putting attorney's address in a different state as his own on an immigration application] is immaterial because his address had no bearing on his receipt of immigration benefits.").

GOOD MORAL CHARACTER - FALSE TESTIMONY - SUBJECTIVE INTENT TO OBTAIN BENEFITS
Gonzalez-Maldonado v. Gonzales, 487 F.3d 975 (5th Cir. May 25, 2007) ("A person does not have good moral character if he "has given false testimony for the purpose of obtaining any benefits under this chapter." 8 U.S.C. 1101(f)(6). "[T]estimony is limited to oral statements made under oath . . . [and] with the subjective intent of obtaining immigration benefits." Kungys v. United States, 485 U.S. 759, 780, 108 S. Ct. 1537, 1551 (1988); see also Beltran-Resendez v. INS, 207 F.3d 284, 287 (5th Cir. 2000)."; A finding that Gonzalez has given false testimony is alone insufficient to establish that he lacks good moral character. See 8 U.S.C. 1101(f)(6). The statute also provides that the misrepresentation must have been "made with the subjective intent of obtaining immigration benefits." Kungys, 485 U.S. at 779-80, 108 S.Ct. at 1551; respondents false testimony regarding his address, in the course of an asylum interview, is not a bar to good moral character in this case, since the false testimony was not given with intent to obtain any immigration benefit).

Eighth Circuit

GOOD MORAL CHARACTER
Nyari v. Napolitano, 562 F.3d 916 (8th Cir. Apr. 13, 2009) (Department of Social Services determination that claims he had sexually abused his daughters was "founded," and plaintiff's inclusion in the central registry of Virginia's child abuse and neglect information system was not conclusive proof that he was not a person of good moral character; plaintiff's children's recantations of their earlier charges created a genuine issue of material fact as to whether he abused them; fact that he was included in the registry with the good moral character period is not equivalent to committing the abusive acts within that same period).

Lower Courts of Eighth Circuit

GOOD MORAL CHARACTER - ONE CONVICTION FOR DRIVING UNDER THE INFLUENCE DOES NOT BAR GMC
Ragoonanan v. USCIS, __F.Supp.3d __, 2007 WL 4465208 (D. Minn. Dec. 18, 2007) ("The Court finds no authority indicating that a single DWI conviction resulting in probation operates as a statutory or regulatory bar to a naturalization applicant who seeks to establish "good moral character." In this case, Ragoonanan has established that he is of good moral character, and that his naturalization application should be granted.").

Ninth Circuit

GOOD MORAL CHARACTER - STATUTORY BAR - CONVICTION CONVICTION - STATE REHABILITATIVE RELIEF
Jimenez Rice v. Holder, ___ F.3d ___, 2010 WL 669262 (9th Cir. Feb. 26, 2010) (California conviction of being under the influence of a controlled substance, in violation of Health & Safety Code 11550(a), that was expunged under Penal Code 1203.4(a), no longer constituted a conviction for purposes of establishing a statutory bar to showing Good Moral Character, under INA 101(f)(3), 8 U.S.C. 1101(f)(3)), following Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) and Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000).

Note: This decision does not properly stand for the proposition that the conduct underlying the expunged conviction cannot be considered in the discretionary Good Moral Character decision, merely that the expunged conviction itself cannot be considered. Immigration counsel can argue that the conviction itself is completely barred, and if the government wants to rely on the underlying conduct as a negative discretionary factor, it must prove it by some means independent of the expunged conviction, which has completely ceased to exist not only for immigration purposes, but for all purposes. See 18 U.S.C. 3607(b)("A disposition under subsection (a), or a conviction that is the subject of an expungement order under subsection (c), shall not be considered a conviction for the purpose of a disqualification or a disability imposed by law upon conviction of a crime, or for any other purpose." [emphasis supplied]).

GOOD MORAL CHARACTER - STATUTORY BAR - CONVICTION CONVICTION - STATE REHABILITATIVE RELIEF
Jimenez Rice v. Holder, ___ F.3d ___, 2010 WL 669262 (9th Cir. Feb. 26, 2010) (California conviction of being under the influence of a controlled substance, in violation of Health & Safety Code 11550(a), that was expunged under Penal Code 1203.4(a), no longer constituted a conviction for purposes of establishing a statutory bar to showing Good Moral Character, under INA 101(f)(3), 8 U.S.C. 1101(f)(3)), following Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) and Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000). Note: This decision does not properly stand for the proposition that the conduct underlying the expunged conviction cannot be considered in the discretionary Good Moral Character decision, merely that the expunged conviction itself cannot be considered. Immigration counsel can argue that the conviction itself is completely barred, and if the government wants to rely on the underlying conduct as a negative discretionary factor, it must prove it by some means independent of the expunged conviction, which has completely ceased to exist not only for immigration purposes, but for all purposes. See 18 U.S.C. 3607(b)("A disposition under subsection (a), or a conviction that is the subject of an expungement order under subsection (c), shall not be considered a conviction for the purpose of a disqualification or a disability imposed by law upon conviction of a crime, or for any other purpose." [emphasis supplied]).

GOOD MORAL CHARACTER - ALIEN SMUGGLING BAR
Sanchez v. Holder, 560 F.3d 1028 (9th Cir. Mar. 26, 2009) (en banc) (alien smuggling inadmissibility waiver under INA 212(d)(11), 8 U.S.C. 1182(d)(11), does not prevent the act of alien smuggling to be considered a bar to a finding of good moral character).

GOOD MORAL CHARACTER - FAMILY UNITY WAIVER
Sanchez v. Mukasey, 521 F.3d 1106 (9th Cir. Apr. 2, 2008) (non-LPR cancellation of removal application not barred as lacking good moral character where applicants smuggling activity qualifies under the family unity waiver under INA 212(d)(11)), following Moran v. Ashcroft, 395 F.3d 1089 (9th Cir. 2005).

GOOD MORAL CHARACTER - 180-DAY BAR - PRETRIAL CONFINEMENT LATER CREDITED AGAINST SENTENCE COUNTS AS CONFINEMENT AS A RESULT OF CONVICTION
Arreguin-Moreno v. Mukasey, 511 F.3d 1229 (9th Cir. Jan. 14, 2008) (pre-sentence time in custody in a criminal case, which is credited as time served in a sentence imposed after conviction, is considered to be confinement as a result of a conviction for purposes of the 180-day Good Moral Character bar of INA 101(f)(7), 8 U.S.C. 1101(f)(7).).

Covarrubias v. Gonzales, 487 F.3d 742 (9th Cir. May 29, 2007) (petitioner was statutorily ineligible to prove good moral character because he had engaged in alien smuggling).

GOOD MORAL CHARACTER - REGULATIONS
United States v. Dang, 488 F.3d 1135 (9th Cir. May 24, 2007) (8 C.F.R. 316.10(b)(3)(iii), barring good moral character based on commission of "unlawful acts that adversely reflect upon the applicants moral character, or was convicted or imprisoned for such acts" is not ultra vires to INA 101(f); nor is the regulation unconstitutionally vague, as applied to respondent who set fire to own vehicle with intent to defraud insurance company).

Eleventh Circuit

JUDICIAL REVIEW " DISCRETIONARY BAR " GOOD MORAL CHARACTER
Jimenez-Galicia v. U.S. Attorney General, 690 F.3d 1207 (11th Cir. Aug. 13, 2012) (court lacks jurisdiction to review the BIA's discretionary determination that Petitioner lacked good moral character).

Other

GOOD MORAL CHARACTER - ILLEGAL VOTING
See Yates Memo (May 7, 2002), "Procedures for Handling Naturalization Applications of Aliens Who Voted Unlawfully or Falsely Represented Themselves as U.S. Citizens by Voting or Registering to Vote."

GOOD MORAL CHARACTER - USE OF FALSE SOCIAL SECURITY CARD
Counsel can argue that use of a false social security card does not evidence a lack of good moral character. See Matter of K, 3 I. & N. Dec. 69 (BIA 1947) (noncitizen admitted committing perjury before a Board of Special Inquiry in February 1931, when he was not yet 18 years of age; he could not have been treated and tried as a juvenile delinquent after the effective date of the Federal Juvenile Delinquency Act (June 16, 1938), when he was over 24 years of age and the statute of limitations had already run on the violation; it would be unrealistic to apply the above 1938 act retroactively to cover the violation of the Federal perjury statute so that it should be regarded as a juvenile delinquency rather than as perjury). Thanks to Lisa Brodyaga.

CONTROLLED SUBSTANCES - SINGLE OFFENSE EXCEPTION
A noncitizen who has pre-trial diversion (no plea entered) for a drug charge does not have a conviction for immigration purposes. INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A). If that person later pleads guilty to simple possession of 30 grams or less of marijuana, the noncitizen comes within the exception to deportability under INA 237(a)(2)(B), 8 U.S.C. 1227(a)(2)(B) for having a single offense.

The "single offense" language creates an exception to the "has been convicted" language in this statute. Since pre-trial diversion is not a conviction, the guilty plea to marijuana possession would still seem to come within the language of the single-offense exception. The Ninth Circuit in de Jesus Melendez v. Gonzales, 503 F.3d 1019 (9th Cir. 2007), held that a noncitizen with a prior grant of pre-trial diversion is not eligible for treatment under Federal First Offender Act, 18 U.S.C. 3607(a), analogue, which makes the plea in the second case a conviction for immigration purposes. In de Jesus Melendez, however, the Federal First Offender Act itself bars eligibility for one who had previously been treated under 18 U.S.C. 3607, and this statute itself has a pretrial diversion provision. The fact that a pre-trial non-conviction diversion bars effective expungement does not mean that it would be considered a first "offense" under the first-offense exception for 30 grams or less of marijuana. Any ambiguity in the statute must be interpreted in favor of the noncitizen in deportation proceedings. Thanks to Dan Kesselbrenner.

UNLAWFUL VOTING
It is risky for a noncitizen who has voted unlawfully to apply for naturalization, unless they have a defense under McDonald v. Gonzales, 400 F.3d 684 (9th Cir. 2005), but proving something was not willful can be difficult. Cancellation of removal is possible to avoid the unlawful voting ground of deportation, but the immigration court might deny it in the exercise of discretion. Illegal voting is not only a Good Moral Character issue. While the passage of time may take the unlawful voting and the making of a false statement under 8 CFR 316.10(b)(2)(vi) outside the period for which good moral character must be shown to naturalize, the noncitizen is still subject to deportation under INA 237(a)(6), 8 U.S.C. 1227(a)(6). The trend in adjudications on false claims and illegal voting has gotten tougher in the last five years, and ICE rarely exercises prosecutorial discretion in favor of the noncitizen. Thanks to D. Jackson Chaney.