Naturalization is the last step in the immigration process. Most assume that a clean criminal record will ensure a grant of naturalization. That is not necessarily the case, though. To obtain naturalization, one must demonstrate “good moral character.” Contrary to popular belief, good moral character involves both criminal and non-criminal acts. In this blog, we briefly highlight several of the most common non-criminal issues that impact the determination of good moral character and, consequently, the grant or denial of naturalization.
1. Tax Issues
Tax violations, even absent a conviction, can bar a determination of good moral character. Failure to file a tax return, as well as failure to pay the required amount of taxes, will result in denial of naturalization. Permanent residents (green card holders) are required by law to report all income, even income received from outside the U.S. Failure to report all income will most likely lead to a determination that the applicant lacks good moral character. Likewise, filing a tax return with erroneous information, such as marital status or number of dependents, may cause the same result. Last, filing as a “non-resident” will likely result in denial of naturalization. If a tax violation occurs, the naturalization applicant should seek help from a Certified Public Accountant to correct any mistakes, pay any taxes owed as a result of any mistakes, and issue a letter stating that all errors have been corrected and all amounts due have been paid.
2. Unlawful Voting
Voting unlawfully can result in a bar to good moral character for naturalization purposes. It can also serve as grounds for deportation. Unlawful voting includes voting in any federal, state, or local election. A narrow exception exists for non-citizens whose parents are citizens, who permanently resided in the U.S. prior to age 16, and who reasonably believed they were a U.S. citizen at the time they voted.
In the past, the government took the view that the act of voting or registering to vote was not automatically a bar to good moral character or grounds for placing a person in removal proceedings. Rather, the adjudicator is supposed to take a “totality of the circumstances” approach to determine whether the violation indicated a lack of good moral character. In other words, the adjudicator was to look at the reasons given by the applicant for violating the law. We have had several cases in which our clients admitted they registered to vote and voted. In explaining the circumstances (lack of education, belief that they were allowed to vote, and that they were urged to register to vote by a local government official), we were able to convince U.S. Citizenship and Immigration Services (USCIS) that no criminal intent or bad purpose existed. USCIS in those cases granted naturalization.
In today’s environment, however, the Department of Homeland Security (DHS) is aggressively pursuing foreign nationals who have voted or have registered to vote illegally. In fact, DHS has funded and created an office to seek denaturalization in certain cases. Thus, one who has voted or registered to vote prior to naturalization should consult an attorney regarding the risk involved in applying for naturalization.
3. Discretionary Bars to Finding Good Moral Character
Although the Immigration and Nationality Act does not explicitly define good moral character, the Act specifies several activities that preclude a determination of good moral character. These activities include adultery, failure to support dependents, and the catch-all undefined category of “unlawful acts.” These are referred to as “discretionary bars” to a finding of good moral character. If a discretionary bar exists, a naturalization applicant may attempt to show “extenuating circumstances” (circumstances existing prior to or simultaneously with the unlawful act) to overcome the presumption of lack of good moral character.
Failure to Support Dependents
USCIS may find lack of good moral character for one who has failed to perform their “moral and legal obligation to provide support for minor children.” This includes failure to pay any support, payment of an “obviously insufficient” amount of support, or desertion. According to USCIS, extenuating circumstances can include the applicant’s employment and financial situation, how the applicant landed in their particular financial situation, whether the applicant has made a good faith effort to “reasonably provide” for their child, and whether the failure to pay was the result of a calculation error or an honest mistake.
Use or Sale of Marijuana in a Medical or Recreational Marijuana State
Although several states have legalized the sale and use of marijuana for medical and/or recreational purposes, the fact remains that marijuana is still a Schedule 1 controlled substance under federal law. Although possessing, selling with a license, or using marijuana may have been decriminalized under state law, USCIS will consider these to be violations of federal law and therefore “unlawful acts” that bar a finding of good moral character. And, no arrest, criminal charge, or conviction is necessary. Further, under the Immigration and Nationality Act, one found to be a drug abuser or addict is deportable. Again, no arrest, criminal charge, or conviction is necessary for such a finding.
SPEAK WITH AN ATLANTA IMMIGRATION ATTORNEY
As briefly discussed above, a clean criminal record doesn’t necessarily translate to smooth sailing for naturalization. The immigration attorneys at Antonini & Cohen Immigration Law Group will thoroughly explore with you any potential issues that may prevent you from establishing good moral character, otherwise prevent your naturalization, and, in the worst case, land you in removal proceedings. We will then prepare you for and accompany you to your naturalization interview. Call us or contact us online to schedule an appointment so that we can put you at ease by advising, guiding, and representing you in the naturalization process.
At Antonini & Cohen, we have been providing energetic, effective and aggressive representation in all areas of American immigration law since 1991.