(A)  Good Moral Character Bar.  An applicant for naturalization as a United States citizen must have been a person of “Good Moral Character” during the period for which Good Moral Character must be shown immediately preceding the date of the filing of the application and continuing up to the time of admission to citizenship by administration of the oath of allegiance.[312]  “Good Moral Character” itself has no statutory definition.  Instead, the INA defines certain classes of persons who are ineligible to show “Good Moral Character.”  At least one court had held that the underlying facts can be examined to determine whether a criminal offense should be considered a bar to Good Moral Character.[313]  A naturalization applicant shall be found to lack Good Moral Character if s/he has been convicted of an aggravated felony.[314]  This bar is permanent for any aggravated felony conviction occurring after November 29, 1990.[315]  See generally § 3.14, supra.

The immigration authorities can also take into account the applicant’s conduct and acts preceding the statutory period during which GMC must be shown when deciding whether to exercise their discretion to grant naturalization,[316] but they may not deny the naturalization application solely on the basis of offenses committed before the beginning of the statutory time period for which Good Moral Character must be shown.[317]

 

A person cannot be granted naturalization while s/he is still on probation or parole in a criminal case.  “An applicant who has been on probation, parole, or received a suspended sentence during all or part of the statutory period is not thereby precluded from establishing good moral character.  However, such probation, parole or suspended sentence may be considered by the Service in determining good moral character.  No application will be approved until after the probation, parole, or suspended sentence has been completed.”[318]  The applicant can therefore apply while on probation or parole, so long as it has ended by the time of the naturalization interview.  However, the immigration authorities sometimes consider 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.[319]  

 

Unless the applicant falls within one of the categories below, s/he must show five years Good Moral Character:[320]

 

·            Spouses of U.S. citizens can naturalize after three years lawful permanent residence (upon showing three years Good Moral Character), if married to the citizen during the entire three years.[321]

 

·            Spouses of U.S. citizens stationed abroad in the employ of the U.S. government and certain other designated organizations may naturalize after showing GMC for a reasonable period of time.[322]

 

·            An applicant with three years total honorable U.S. military service is eligible for naturalization.  No particular period of GMC is required.[323]  Even a deportable applicant can be naturalized if s/he is still in the military.

 

·            Veterans of U.S. armed forces during certain armed conflicts (which include World War II and the Korean, Vietnam, and Gulf Wars), or persons who were in the armed services for three years at any time, and who if separated from the armed forces, were honorably discharged, are permitted to naturalize.[324]  The period of GMC[325] is a “reasonable period of time.”  If the person enlisted within the United States, the person is not even required to be a permanent resident, and a deportable applicant can be naturalized.

 

·            A child born outside the U.S. to at least one U.S. citizen parent may be naturalized.[326]  Good Moral Character is presumed if the child is under 18 years of age.  The child must not be otherwise barred by INA § 313 (subversives), § 314 (deserters), § 315 (claiming exemption from military service), or § 318 (deportees).  Depending on the circumstances, the child also might have inherited U.S. citizenship at birth.  See § 3.17, supra.

 

Naturalization of certain classes of persons is barred by law.[327]

[312] INA § 316(a)(3), 8 U.S.C. § 1427(a)(3); 8 C.F.R. § 316.10.  An applicant for naturalization must also have been “lawfully admitted for permanent residence . . . .”  INA § 316(a), 8 U.S.C. § 1427(a).  S/he must have “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.”  INA § 101(a)(20), 8 U.S.C. § 1101(a)(20).  A noncitizen who is naturalized while lacking a lawful admission to permanent residence is subject to denaturalization at any time.  Fedorenko v. United States, 449 U.S. 490 (1981).  If an applicant was in fact by reason of a criminal conviction or criminal conduct, including crimes of moral turpitude that rendered the noncitizen inadmissible, not eligible to be admitted to lawful permanent resident status when s/he was admitted, the naturalization application may be denied and proceedings instituted to revoke the lawful permanent resident status.  It has been held, however, that the failure to disclose an arrest for offenses that did not involve moral turpitude does not warrant denaturalization for suppression of facts that would have resulted in the denial of citizenship.  Chaunt v. United States, 364 U.S. 350, 81 S.Ct. 147 (1960). 

[313] Jalloh v. Dept. of Homeland Security, No. Civ.A.04-11403-DPW (D.Mass. Mar. 11, 2005) (unpublished) (assault and battery with a dangerous weapon conviction held not to be a crime involving moral turpitude for purposes of finding good moral character for naturalization purposes where, examining the underlying facts of the case, it did not appear that the applicant had any evil intent in committing the offense; 8 C.F.R. § 316.10(b)(3)(iii) allows the court to examine the underlying facts behind a conviction to determine whether a naturalization applicant has “establishe[d] extenuating circumstances” that show that applicant does not lack good moral character).

[314] See, e.g., O’Sullivan v. U.S. Citizenship & Immigration Serv., 453 F.3d 809 (7th Cir. Jul. 6, 2006) (aggravated felony bar applies to wartime veterans).

[315] Puello v. BCIS, 511 F.3d 324 (2d Cir. Dec. 20, 2007) (for purposes of applying the permanent bar to good moral character for conviction of an aggravated felony, under INA § 101(f), the date of conviction is the date of sentencing or the date the judgment of conviction was filed with Clerk of Court, rather than on date the guilty plea was entered).

[316] INA § 316(e), 8 U.S.C. § 1427(e); 8 C.F.R § 316.10(a)(2).

[317] The agency must weigh positive factors against negative ones. Santamaria-Ames v. INS, 104 F.3d 1127 (9th Cir. 1996); Torres-Guzman v. INS, 804 F.2d 531 (9th Cir. 1986).  

[318] 8 C.F.R § 316.10(c)(1).

[319] See, e.g., In re McNeil, 14 F. Supp. 394 (N.D. Cal. 1936) (precluded until termination of parole); Petition of Sperduti, 81 F. Supp. 833 (W.D. Pa. 1949) (not precluded by probation or parole).

[320] INA § 316(a), 8 U.S.C. § 1427(a).

[321] INA § 319(a), 8 U.S.C. § 1430(a).

[322] INA § 319(b), 8 U.S.C. § 1430(b).

[323] INA § 328, 8 U.S.C. § 1439.

[324] INA § § 328, 329, 8 U.S.C. § § 1439, 1440.

[325] O’Sullivan v. U.S. Citizenship & Immigration Serv., 453 F.3d 809 (7th Cir. Jul. 6, 2006) (wartime veterans are not excused from showing good moral character before naturalizing; CIS regulation setting forth a time period for which a wartime veteran must show good moral character was a valid exercise of delegated power); Nolan v. Holmes, 334 F.3d 189, 201-202 (2d Cir. 2003) (applicants for naturalization under INA § 329, 8 U.S.C. § 1440 must, consistent with the government’s interpretation of the statute, demonstrate good moral character); Boatswain v. Gonzales, 414 F.3d 413 (2d Cir. June 30, 2005) (aggravated felony bar to showing good moral character applies to persons who have served in the U.S. military on active-duty status during wartime); Lopez v. Henley, 416 F.3d 455 (5th Cir. July 12, 2005) (federal conviction for attempting to possess a controlled substance barred applicant for naturalization from showing good moral character, despite active service in the United States military during the Vietnam War).

[326] INA § 322, 8 U.S.C. § 1433.

[327] INA § 315, 8 U.S.C. § 1426.  See N. Tooby & J. Rollin, Criminal Defense of Immigrants § 24.13(B) (4th Ed. 2007).

CITIZENSHIP " DENATURALZATION
United States v. Gomez, __ F.Supp.2d __, 2013 WL 2147021 (S.D. Fla. May 15, 2013) (revoking naturalization where noncitizen failed to disclose conviction for drug trafficking on naturalization application).

NATURALIZATION - IJ LACKS JURISDICTION TO REVIEW ELIGIBILITY
Ogunfuye v. Holder, 610 F.3d 303 (5th Cir. Jun. 28, 2010) (immigration judge lacks authority to determine whether noncitizens are prima facie eligible for naturalization), following Matter of Hidalgo, 24 I. & N. Dec. 103, 105 (BIA 2007).

BIA

CITIZENSHIP - DERIVATIVE CITIZENSHIP
Matter of Guzman-Gomez, 24 I. & N. Dec. 824 (BIA May 8, 2009) (the terms "child" and "parent" defined at 8 U.S.C. 1101(c), do not encompass stepchildren and stepparents; a person born outside the United States cannot derive United States citizenship under 8 U.S.C. 1431(a), by virtue of his or her relationship to a nonadoptive stepparent).

CITIZENSHIP - NATURALIZATION - DUI - DRIVING UNDER THE INFLUENCE NOT BASIS TO DENY NATURALIZATION
Ragoonanan v. USCIS, 2007 WL 4465208 (D. Minn. Dec. 18, 2007) (unpublished) (district court ruled against USCIS, holding a recent DUI conviction was not a basis to deny naturalization).

Second Circuit

CITIZENSHIP " DERIVATIVE CITIZENSHIP
Garcia v. USICE, ___ F.3d ___, 2011 WL 6825581 (2d Cir. Dec. 29, 2011) (petitioner can derive citizenship if he was in his father's legal custody when his father naturalized, looking in this case first to state law to determine whether there is an enforceable judicial determination or statutory grant of custody; if there is not, actual uncontested custody of the child controls).

CITIZENSHIP - NATURALIZATION - CONTINUOUS PRESENCE
Gildernew v. Quarantillo, ___ F.3d ___ (2d Cir. Feb. 4, 2010) (one-year absence bar in 8 U.S.C. 1427(b) applied both to the period preceding the naturalization interview and the period following the interview).

CITIZENSHIP - NATURALIZATION - CONTINUOUS PRESENCE
Gildernew v. Quarantillo, ___ F.3d ___ (2d Cir. Feb. 4, 2010) (one-year absence bar in 8 U.S.C. 1427(b) applied both to the period preceding the naturalization interview and the period following the interview).

CITIZENSHIP - NATURALIZATION - DISTRICT COURT
Bustamante v. Napolitano, 582 F.3d 403 (2nd Cir. Sept. 28, 2009) (where noncitizen properly invoked district courts authority over naturalization applications upon which the USCIS has failed to act for 120 days, under INA 336(b) of the Act, the district court had exclusive jurisdiction over naturalization application).

RELIEF - NATURALIZATION - DISTRICT COURT LACKS JURISDICTION TO RULE ON PROPRIETY OF REMOVAL PROCEEDINGS
Ajlani v. Chertoff, 545 F.3d 229 (2d Cir. 2008) (district court lacked jurisdiction to review the propriety of pending removal proceedings; pendency proceedings precluded plaintiff from stating a present claim for naturalization).

Third Circuit

JUDICIAL REVIEW"DISTRICT COURTS JURISDICTION TO REVIEW NATURALIZATION DENIALS
Gonzalez v. Secy of Dept of Homeland Security, 2012 WL 898609 (3d Cir. Mar. 19, 2012) (unpublished) (the jurisdiction vested in district courts by 8 U.S.C. 1421(c) to review naturalization denials is not divested by the priority given to removal proceedings under 8 U.S.C. 1429; district court may grant declaratory relief in the naturalization case notwithstanding the role it may play in terminating a removal proceeding).

CITIZENSHIP - NATURALIZATION - DISQUALIFICATION GROUND THAT REMOVAL PROCEEDING IS PENDING
Zegrean v. U.S. Attorney General, 602 F.3d 273 (3d Cir. Apr. 13, 2010) (noncitizen cannot establish prima facie eligibility for naturalization, under 8 C.F.R. 1239.2(f), when removal proceedings began before the naturalization application was filed), citing Perriello v. Napolitano, 579 F.3d 135 (2d Cir. 2009).

Fourth Circuit

CITIZENSHIP " NATURALIZATION " FRAUDULENT ADMISSION
Injeti v. U.S. Citizenship and Immigration Services, 737 F.3d 311 (4th Cir. Dec. 11, 2013) (affirming district court denial of review of USCIS denial of naturalized U.S. citizenship, where noncitizen made misrepresentations on application for LPR status and submitted false evidence in another immigration proceeding).

RELIEF " NATURALIZATION " IMMIGRATION JUDGE CAN TERMINATE REMOVAL PROCEEDINGS TO ALLOW NATURALIZATION ONLY IF DHS HAS GIVEN WRITTEN CONFIRMATION OF ELIGIBILITY
Barnes v. Holder, 625 F.3d 801 (4th Cir. Nov. 10, 2010) (removal proceedings may only be terminated pursuant to 8 C.F.R. 1239.2(f) where the DHS has presented an affirmative communication attesting to the alien's prima facie eligibility for naturalization).

CITIZENSHIP - NATURALIZATION
Lee v. USCIS, __ F.3d __ (4th Cir. Jan. 25, 2010) (district courts lack jurisdiction to review USCIS denial of adjustment of status on the basis that 8 C.F.R. 245.10(j) was invalid under the APA).

Sixth Circuit

RELIEF " NATURALIZATION " REMOVAL PROCEEDINGS
Shewchun v. Holder, 658 F.3d 557 (6th Cir. Sept. 8, 2011) (noncitizen must get agreement from DHS that noncitizen is primafacie eligible for naturalization in order to ask immigration judge to terminate removal proceedings in order to apply for naturalization; although DHS may not adjudicate naturalization application of noncitizen in removal proceedings, DHS may determine prima facie eligibility without making a final determination on the application itself), following Matter of Hidalgo, 24 I. & N. Dec. 103 (BIA 2007); Barnes v. Holder, 625 F.3d 801, 807 (4th Cir. 2010).

Seventh Circuit

CITIZENSHIP " NATURALIZATION " DISTRICT COURT JURISDICTION OVER LAWSUIT SEEKING ORDER NATURALIZING NONCITIZEN
Aljabri v. Holder, 745 F.3d 816 (7th Cir. Mar. 11, 2014) (district court had jurisdiction over noncitizens pro se suit for order naturalization or declaration of citizenship, notwithstanding the discretionary nature of the Attorney General's ruling; the USCIS had no jurisdiction to act on alien's application in manner that might moot his federal lawsuit).

CITIZENSHIP " NATURALIZATION " DISTRICT COURT JURISDICTION OVER LAWSUIT SEEKING ORDER NATURALIZING NONCITIZEN
Aljabri v. Holder, 745 F.3d 816 (7th Cir. Mar. 11, 2014) (district court had jurisdiction over noncitizens pro se suit for order naturalization or declaration of citizenship, notwithstanding the discretionary nature of the Attorney General's ruling; the USCIS had no jurisdiction to act on alien's application in manner that might moot his federal lawsuit).

CITIZENSHIP " NATURALIZED CITIZENSHIP " REVOCATION
United States v. Suarez, 666 F.3d 655 (7th Cir. Dec. 16, 2011) (INA 1101(f)(8) and the accompanying regulations prevent a person from establishing good moral character for naturalization or any other relief when the person committed criminal acts within statutory GMC period prior to naturalization, but was not indicted or convicted of the offenses until after naturalization occurred).

CITIZENSHIP - NATURALIZATION - DISTRICT COURT JURISDICTION
Ortega v. Holder, ___ F.3d ___ (7th Cir. Jan. 15, 2010) (reversing district court dismissal for lack of subject matter jurisdiction of action for a declaration of nationality pursuant to 8 U.S.C. 1503(a), as the language of this statute makes it clear Congress intended individuals to pursue one of two routes to establish claims for nationality, including filing an administrative application for a certificate of citizenship, which if denied, could be pursued by way of an action under 8 U.S.C. 1503(a)).

Eighth Circuit

CITIZENSHIP - NATURALIZATION - DUI - DRIVING UNDER THE INFLUENCE NOT BASIS TO DENY NATURALIZATION
Ragoonanan v. USCIS, 2007 WL 4465208 (D. Minn. Dec. 18, 2007) (unpublished) (district court ruled against USCIS, holding a recent DUI conviction was not a basis to deny naturalization).

Ninth Circuit

CITIZENSHIP " NATURALIZATION " DENATURALIZATION
United States v. Arango, 670 F.3d 988, 2012 WL 89184 (9th Cir. Jan.12, 2012 (reversing denaturalization order where issue of fact remained as to whether noncitizen, who procured LPR status through fraudulent marriage, had entered into cooperation agreement with the INS allowing him to retain his LPR status).

CITIZENSHIP " DERIVATIVE CITIZENSHIP
Romero-Mendoza v. Holder, 665 F.3d 1105, 2011 WL 6318336 (9th Cir. Dec. 19, 2011) (petitioner's claim of derivative citizenship, through USC mother alone, was defeated by evidence showing his paternity was legitimated under Salvadoran law when parents married after petitioner's birth).

DC Circuit

CITIZENSHIP - MISREPRESENTATIONS FOR PURPOSES OF NATURALIZATION - MATERIALITY
In Re Petition of Sousounis, 239 F. Supp. 126 (D.C. Pa 1965) (minor misrepresentations made for naturalization purposes can be explained by language difficulties and a good faith effort by the applicant to explain those discrepancies).

Other

RELIEF"NATURALIZATION"DISTRICT COURT
Hajro v. Barrett, 2012 WL 968087 (N.D. Cal., Mar. 21, 2012) (unpublished) (noncitizen eligible for naturalization, and was not barred as lacking good moral character for providing false testimony in connection with adjustment of status by failing to disclose service in Bosnian army or participating in Muslim religious practices; "false testimony" for purposes of good moral character must be oral statements given under oath).

CITIZENSHIP - NATURALIZATION - MILITARY RAPID NATURALIZATION
"The Armys one-year pilot program will begin in New York City to recruit about 550 temporary immigrants who speak one or more of 35 languages, including Arabic, Chinese, Hindi, Igbo (a tongue spoken in Nigeria), Kurdish, Nepalese, Pashto, Russian and Tamil. Spanish speakers are not eligible. The Armys program will also include about 300 medical professionals to be recruited nationwide. Recruiting will start after Department of Homeland Security officials update an immigration rule in coming days.

"Pentagon officials expect that the lure of accelerated citizenship will be powerful. Under a statute invoked in 2002 by the Bush administration, immigrants who serve in the military can apply to become citizens on the first day of active service, and they can take the oath in as little as six months." The military has always had the wartime authority to enlist NIV holders and even EWIs.

Anyone who enlists in this program has to be in legal status at the time of enlistment. Nobody who is out of status is eligible. If they fall out of status after they enlist, they can still become citizens, because under INA 329 even an illegal immigrant can naturalize.

Thanks to Margaret Stock

DOD Fact Sheet on the program: www.defenselink. mil/news/ mavni-fact- sheet.pdf

CITIZENSHIP - MISREPRESENTATIONS FOR PURPOSES OF NATURALIZATION - MATERIALITY
In Re Petition of Sousounis, 239 F. Supp. 126 (D.C. Pa 1965) (minor misrepresentations made for naturalization purposes can be explained by language difficulties and a good faith effort by the applicant to explain those discrepancies).

ARMED FORCES ENLISTMENT " NATIONALITY REQUIREMENTS
See 10 U.S.C. 504(b) (requirements for enlistment in the Armed Forces: A person must be a U.S. national, lawful permanent resident, a citizen of certain Pacific Islands, or vital to the national interest in order to enlist lawfully; the Army checks a persons paperwork with DHS to see whether the person falls into one of those categories, and also runs a fingerprint check and other database checks).