Commission of a crime of moral turpitude is a bar to a finding of good moral character.[191]  Unlike an aggravated felony conviction, however, commission of a CMT is not a permanent bar to a finding of good moral character.[192]  A noncitizen convicted of a crime involving moral turpitude will be barred for limited periods of time from making applications for certain immigration benefits, such naturalization to U.S. citizenship,[193] cancellation of removal for non-permanent residents[194] and under the Violence Against Women Act,[195] former suspension of removal[196] and NACARA suspension and special cancellation,[197] registry,[198] voluntary departure subsequent to the completion of removal proceedings,[199] and certain types of adjustment of status.[200]

 

The period of good moral character generally runs backward from the date of the application.  Any CMT committed during the specified GMC period may result in a denial of the application.  In some cases, the immigration authorities have also considered periods in which a noncitizen is on probation or parole as not counting toward a required period of good moral character, but this is not required by statute or regulation and may be challenged.[201]  A person is barred from showing good moral character if s/he has served 180 or more actual days in jail during the statutorily mandated period.[202]  Murder is a permanent bar to good moral character regardless of the date of conviction.[203]

 

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 long as the noncitizen has admitted commission of the acts, and may consider convictions that have been expunged.[204]  However, a criminal act not resulting in a conviction, that would not be considered a CMT if the act did result in a conviction, should not bar a noncitizen from showing good moral character.[205]  Additionally, the BIA has held on three separate occasions that a CMT conviction falling within the Petty Offense exception does not disqualify a noncitizen from showing good moral character, as s/he is then not described in INA § 212(a)(2)(A), 8 U.S.C. § 1182(a)(2)(A).[206]  This should also apply to noncitizens who fall within the Youthful Offender and Political Offense exceptions.

 

            For further discussion of good moral character, see N. Tooby & J. Rollin, Criminal Defense of Immigrants § 15.6 (4th Ed. 2007).

[191] INA § 101(f)(3), 8 U.S.C. § 1101(f)(3).

[192] See Immigration Act of 1990, § 509(a), amending INA § 101(f)(8), 8 U.S.C. § 1101(f)(8).  An aggravated felony conviction, except for a murder conviction, is a permanent bar to establishing good moral character only if the conviction occurred on or after November 29, 1990.  Ibid.; INS, Office of the General Counsel, Genco Opinion No. 96-16, 74 Interpreter Releases 1515, 1530 (October 6, 1997).  A murder conviction is a permanent bar regardless of the date of conviction.

[193] See § 3.23, infra.

[194] INA § 240A(b)(1)(B) (10 years prior to application).

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

[196] Former INA § 244(a)(1) (1995).

[197] 8 C.F.R. § § 240.65, 240.66 (varies).

[198] INA § 249(c) (at time of application).

[199] INA § 240B(b)(1)(B) (5 years).

[200] See, e.g., 8 U.S.C. § 1255b (no period indicated) (for noncitizens described in INA § 101(a)(15)(A) and (G)).  See also § 3.37, infra (VAWA).

[201] Petition of Sperduti, 81 F.Supp. 833 (W.D. Pa. 1944).

[202] See INA § 101(f), 8 U.S.C. § 1101(f).

[203] MTINA § 306(a)(7).

[204] Ikenokwalu-White v. INS, 316 F.3d 798 (8th Cir. January 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).

[205] 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, however, can be weighed as a discretionary factor.

[206] Matter of Garcia-Hernandez, 23 I. & N. Dec. 590, 593 (BIA 2003) (for non-LPR cancellation of removal); Matter of Urpi-Sancho, 13 I. & N. Dec. 641 (BIA 1970) (same, for voluntary departure); Matter of M, 7 I. & N. Dec. 147 (BIA 1956) (same, for former suspension of removal).

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

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 - 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).

First Circuit

RELIEF " CANCELLATION OF REMOVAL " NON-LPR CANCELLATION " GOOD MORAL CHARACTER " STATUTORY BARS " JUDICIAL REVIEW
Reynoso v. Holder, ___ F.2d ___, 2013 WL 1197744 (1st Cir. Mar. 26, 2013) (whether applicant for non-LPR cancellation is barred from showing good moral character, under INA 101(f), 8 U.S.C. 1101(f), is a legal question open to judicial review).

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 " 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).

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).

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).

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).

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 - 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.