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USA v. OLIVAR: Conspiracy To Commit Criminal Acts Prior To Naturalization Can Still Result In Revocation Of Citizenship

One of the advantages of becoming a US citizen is that one is no longer susceptible to being deported from the United States, especially if the person has been convicted of a crime. While being convicted of a crime results in criminal penalties, a US citizen can at least take comfort that that there will be no removal, and the United States will continue to remain home for the convicted person.

Think again.

In United States of America v. Olivar, the Ninth Circuit Court of Appeals on April 18, 2016 upheld the revocation of citizenship of a naturalized person who was convicted of criminal conspiracy for acts undertaken prior to applying for naturalization.  Olivar, a native of the Philippines,  was naturalized as a US citizen in May 2002. In the same year, according to a Law360 story, Olivar began working at a law firm in the Los Angeles area in 2002. Seven years later, in early 2009, he was indicted on conspiracy charges in connection with a visa fraud scheme. Olivar and a second invidual recruited  people who were not authorized to work in the U.S., charging them anywhere between $1,000 and $7,500 to find a business that would sponsor them for an employment-based immigrant visa. They filed applications with the Labor Department and immigration authorities claiming the individuals would be working in skilled positions, like accountants or public relations specialists, according to Law360. The businesses allegedly never actually intended to employ the individuals, the prosecutors alleged. Olivar was also accused of helping the immigrants falsify their education and work experience if they didn’t meet the requirements for the H-1B visa, by using false diplomas, transcripts and reference letters. Olivar eventually pled guilty to conspiracy to commit visa fraud in April 2009 in violation of 18 USC 2, 371 and 1546 and was sentenced to just over one year in jail. Federal authorities later started efforts to revoke his citizenship, claiming he lacked good moral character in the five year period leading up to naturalization in May 2002 based on unlawful acts that adversely reflected upon his good moral character. These acts involved a conspiracy to commit visa fraud, which was a crime involving moral turpitude.

While this sounds Kafkaesque, it is possible to lose the coveted US citizenship if a person is convicted of a crime, based on conduct that occurred prior to naturalization. While a person only knows for certain about the crime being committed at the point of conviction, prior acts, or even an agreement to commit acts in the future, can potentially lead a court to conclude retroactively that acts prior to conviction adversely reflected on the person’s good moral character.

The Form N-400, Application for Naturalization, asks broadly “Have you ever committed a crime or offense for which you have never been arrested?” In a prior blog,  “Crime Without Punishment: Have You Ever Committed A Crime For Which You Have Not Been Arrested?” this author puzzled on how an immigration attorney should advise a client to answer this overbroad question. It is impossible to know whether a person has committed a crime or offense, unless it is proven beyond reasonable doubt in the criminal justice system. It may thus be problematic to advise a client to admit to a commission of a crime on the N-400 application when one does not know what provision of the law was violated, and whether the applicant met all the elements of that offense. Since this overbroad question also requires admitting non-criminal offenses, it would be difficult, and frankly ridiculous,  to plumb through the memory of the client to recall every minor offense that may have been committed in this person’s life, which may include such insignificant offenses as jay walking  (a daily occurrence in New York City!) or driving above the speed limit.  Nevertheless, failure to disclose whether a person has committed a crime for which there was no charge or arrest can be used against the person if there is a conviction after the naturalization. In U.S. v. Bogacki, for example, the defendant was convicted for conspiracy to bring in and harbor aliens, make false statements, commit mail fraud and wire fraud, and fraud by misuse of immigration documents, among others, after he had naturalized. However, the government was successful in denaturalizing him for his failure to specifically mention the question about committing a crime for which you have not been arrested on the N-400 application.

In USA v. Olivar, the Ninth Circuit Court of Appeals avoided relying on this ambiguous question on the N-400 application, and instead found that he lacked good moral character during the five year period preceding his naturalization. According to the Court, “The district court made clear that the Appellant was denaturalized because he lacked good moral character during the statutory period, and did not find that Olivar should be denaturalized because he made a material misrepresentation on his naturalization form.”  What is unusual about USA v. Olivar is that he had only agreed to commit a criminal act in the future, and the essential element of conspiracy, the overt act, only occurred after his naturalization. Was Olivar a criminal during the five year period prior to his naturalization, and thus lacking in good moral character? The following extract from the Law360 story is worth noting:

During oral arguments earlier this month, his attorney, Nimrod Haim Aviad of Crowell & Moring LLP, acknowledged that authorities alleged the conspirators began discussing the visa scheme back in 2001, several months before Olivar became a citizen.

But Aviad said no one acted on the plan until after Olivar’s naturalization. So, when Olivar was sworn in as a U.S. citizen, he was not a criminal and had not committed an illegal act, Aviad argued.

“When I agree to commit an act, that does not mean that I committed it,” he said. “That is the very basic principle that underlies the law of conspiracy.”

Judges appeared to be skeptical of the argument.

“So somebody could decide to engage in four or five illegal conspiracies to smuggle drugs, smuggle aliens, do a whole bunch of stuff, and say ‘but hold off, I’m going to become a citizen next week and then we’ll start buying the guns?’” Circuit Judge Susan P. Graber asked. “And that’s okay?”

As a result of his conviction in 2009, Olivar is no longer a US citizen based on an agreement prior to his naturalization to commit criminal acts in the future, and is potentially deportable. His case is especially striking since conspiracy, in addition to proving that two or more people two or more people were in agreement to commit a crime,   also requires an “overt act” taken in furtherance of the crime.  In USA v. Olivar, the applicant could not have been accused of conspiracy during the statutory period requiring good moral character prior to naturalization as the overt act had occurred long after he had become a citizen.  This appears to be a case of first impression, and the Ninth Circuit’s conclusion seems to be at odds with the law of conspiracy. Even with respect to decisions involving deportation, the only relevant decision involving deportation as a result of conspiracy that this author found (with David Isaacson’s assistance) is Matter of T-, 2 I&N Dec. 95 (1944). In Matter of T, the respondent was found not to be deportable for a crime involving moral turpitude committed within 5 years after entry as the overt act in that conspiracy occurred prior to his entry into the United States. The respondent, however, was still found deportable for having admitted to the commission of a crime involving moral turpitude prior to this entry, but it is significant that the charge of deportability for the commission of a crime after entry was not sustained as the overt act took place prior to entry. Because the Ninth Circuit’s decision in USA v. Olivar does not appear to be crystal clear, this is not going to be the last word on whether citizenship can be revoked based on an agreement to commit a crime prior to naturalization, but where the overt act occurred after naturalization.

Highlights of Good Moral Character in Naturalization

By Myriam Jaidi

In order to qualify for naturalization, an applicant must demonstrate that she is or was a person of good moral character (GMC) throughout the relevant statutory period and through the time she takes the oath of allegiance.  See Immigration and Nationality Act (INA) § 101(f); Title 8, Code of Federal Regulations (CFR) § 316.10.  For the average person, GMC may not be an issue – the average person will have the requisite “character which measures up to the standards of average citizens of the community in which the applicant resides,” USCIS Policy Manual, Volume 12, Part F (hereinafter “PM”), Ch.1A, and will not be statutorily precluded from showing GMC.  GMC “does not mean moral excellence . . . .’”

Matter of Sanchez-Linn, 20 I&N Dec 362, 366 (BIA 1991). GMC is “is incapable of exact definition,” Posusta v. United States, 285 F.2d 533, 535 (2d Cir. 1961), and extremely complex.  Because the statute and regulations governing the meaning of GMC cover a broad range of conduct and acts, and because officers will be exercising discretion in making a determination, an advocate must carefully review GMC with a client to ensure any potential issues are analyzed and addressed. There are statutory and regulatory bars to GMC, as well as a catchall provision which allows an adjudicator to exercise discretion and find a lack of GMC where none of the other bars apply, and it is important to keep them all in mind.  Having an issue that could result in a negative determination of GMC can do more than prevent a person from obtaining U.S. citizenship – it can signal that the individual may be removable and may even be subject to mandatory detention if put in removal or if the person returns to the United States after traveling abroad.  USCIS officers must assess GMC on a “case-by-case” basis, 8 CFR § 316.10(a), examining an applicant’s conduct and acts during the relevant statutory period immediately preceding the application – 5 years as a general matter, INA 316(a)(1), 3 years for those who have been residing with their U.S. citizen spouse for that period, INA 319(a), and 1 year for those who have served honorably in the U.S. military, 8 CFR § 329.2(d).  However, officers are not limited to the statutory periods, and can go back in time as far as they believe necessary in assessing whether a person has experienced a “reform of character,” or if the officer believes that “the earlier conduct and acts appear relevant to a determination of the applicant’s present moral character.”  8 CFR § 316.10(a)(2).  An officer must consider “the totality of the circumstances and weigh all factors” when considering reformation of character in conjunction with GMC within the relevant period. PM Ch.2B.  The PM provides officers with the following list of factors to consider in assessing an applicant’s current moral character and reformation of character:  family ties and background; absence or presence of other criminal history; education; employment history; other law-abiding behavior (meeting financial obligations, paying taxes, etc.); community involvement; credibility of the applicant; compliance with probation; length of time in United States.  Id.  A GMC determination therefore involves a balancing test and advocates should make a strong showing of equities where any negative factors that do not constitute a bar to establishing GMC are present, to present a strong foundation upon which an adjudicator may be swayed to find in an applicant’s favor.

Absolute Bars to Showing GMC

An individual cannot show GMC if he or she has:

  • Been convicted of murder at any time (8 CFR § 316.10(b)(i));
  • Engaged in persecution, genocide, torture, or severe violations of religious freedom at any time (INA § 101(f)(9));
  • Been convicted of an aggravated felony as defined in INA § 101(a)(43) on or after November 29, 1990 (INA § 101(f)(9), 8 CFR § 316.10(b)(ii)).

Note that an individual who was convicted of an aggravated felony before November 29, 1990 and does not otherwise fall into any of the permanent or conditional preclusions to showing good moral character can naturalize.  They face an uphill battle and must demonstrate that they have made exemplary efforts to redeem themselves, but it can be done, if not at the USCIS level, then in federal court.  For an excellent example of the showing that needs to be made, and how advocates can prepare not only an application but also their client for the application process, see Lawson v. USCIS, 795 F.Supp.2d 283 (SDNY 2011), discussed at length in a previous blog post.  Judge Denny Chin of the U.S. Court of Appeals for the Second Circuit, sitting by designation in district court, found that Lawson, a Vietnam War veteran honorably discharged from the Marines, had established good moral character and therefore was eligible to naturalize despite the fact that he was convicted of manslaughter for killing his wife in 1985. Judge Chin found Lawson had paid his debt to society serving 13 years in prison and while there “he overcame his drug and alcohol problems, earned three degrees (including two with honors), completed several training programs, and counseled and taught other inmates” and continued his efforts at reform after he was released.  Cases like Lawson demonstrate that in preparing a naturalization application for a client with a criminal history or any other GMC issue, it is important to pull out all the stops and be creative about demonstrating all of the ways in which your client is an asset to the community. Make sure they are able to communicate the many ways in which they participate in and contribute to the various communities with which they may interact.

Conditional Bars for Acts in the Statutory Period

Beyond the absolute bars to establishing GMC, the statute and regulations provide a laundry list of what USCIS refers to as “conditional bars” to establishing GMC, found in INA § 101(f) and 8 CFR 316.10:

  • One or more crimes involving moral turpitude
  • Convicted of two or more offenses, aggregate sentence imposed five years or more
  • Controlled substance violation
  • Admitting to any of the above
  • Incarceration for aggregate of 180 days due to a conviction
  • False testimony
  • Prostitution or commercialized vice
  • Smuggling of a person
  • Polygamy
  • Gambling
  • Habitual drunkard

Here are highlights of some of the more complex conditional bars:

Crime Involving Moral Turpitude

Being convicted of a crime involving moral turpitude (CIMT) during the statutory period precludes a finding of GMC.  This excludes a conviction for a purely political offense as well as an offense that falls within the petty offense exception in INA § 212(a)(2)(ii)(II) (maximum penalty possible does not exceed one year and the person was sentenced to 6 months or less imprisonment) or the youthful offender exception in INA § 212(a)(2)(ii) (committed crime when under 18, crime committed (and person released from resulting confinement) more than 5 years before application for the benefit).  If the client is unclear on whether they have been convicted or what they may have been convicted of, make sure you obtain any and all records relevant to their brush with the criminal justice system.  You can have them request a copy of their file from their criminal defense attorney, obtain an FBI rap sheet, have them go to the court where their case was heard and request a record or court disposition.  Try to get as much documentation as possible and do not rely solely on the FBI rap sheet because it may be incomplete.  Like GMC, CIMT is not defined in the INA or implementing regulations and is incredibly complex.  Moral turpitude refers generally to conduct that “shocks the public conscience,” conduct that “is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. . . . Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong, or malum in se so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.” Matter of Franklin, 20 I&N Dec. 867, 868 (BIA 1994), aff’d, 72 F.3d 571 (8th Cir. 1995). Key to the determination of moral turpitude is “whether the act is accompanied by a vicious motive or a corrupt mind.” Id.  Each statute must be examined to determine whether it involves moral turpitude, but some common elements of CIMTs are fraud, theft (intent to permanently deprive the owner of property), crimes involving bodily harm to another with an intent to harm, and even some instances of harm resulting from criminally reckless conduct.  The CIMT concept has developed over time through a multitude of court decisions, and the steps one must take in analyzing whether a crime amounts to a CIMT continues to be fought out in the courts.  The determination of whether a crime is a CIMT depends on the judge, the wording of the particular statute at issue, and whether the judge applies the “categorical approach” (which requires consideration of the minimal conduct implicated by a penal law) or “modified categorical approach” (where the categorical approach does not yield an answer because a criminal statute includes offenses that fall outside the generic criminal category, this approach allows consideration of the record of conviction for clarification), among other things. Because the topic of CIMTs can fill many volumes, an in-depth analysis of how to identify a CIMT is beyond the scope of this blog post, and the reader is referred to resources such as Mary E. Kramer, Immigration Consequences of Criminal Activity: A Guide to Representing Foreign-Born Defendants (5th Ed. 2012)(an AILA publication), that deal in more depth with CIMTs and other issues relating to crimes and immigration.Keep in mind that in addition to precluding a finding of GMC, one CIMT within 5 years of admission where the crime is one for which a sentence of one year or more may be imposed makes a person deportable, see INA § 237(a)(2)(A)(i), as do two or more CIMTs at any time. See INA § 237(a)(2)(A)(ii).  An advocate also has to be aware of the impact of a criminal conviction on a lawful permanent resident who wants to travel outside the United States.  If a lawful permanent resident with one or more CIMTs on her record travels outside the United States, upon return she may be considered an applicant for admission under INA § 101(a)(13), and may be subject to mandatory detention under INA § 236(c).

False Testimony

Giving false testimony with the intent of obtaining an immigration benefit precludes a finding of GMC even if the information provided in the false testimony is not material. “Testimony” must be oral and must have been made under oath.  False statements in writing, such as false information provided in an application or fraudulent documents submitted with an application do not constitute “false testimony” for the purposes of this basis for denying GMC.  Note however, that failure to truthfully answer the questions on the Form N-400 when combined with the fact that an applicant is usually asked to reaffirm his or her answers under oath during the naturalization interview can constitute false testimony.  Providing a false written statements and/or fraudulent documents can result in a finding of a lack of GMC under the catchall provisions.  For example, an individual provides a forged document to the government in conjunction with application for naturalization. Although the document does not meet the requirements for “false testimony,” the fact of having submitted a forged document to the government could qualify as an “unlawful act” because it would be a violation of 18 USC 1503 and/or 18 USC 1519, among others. A similar outcome could result from the submission of a false affidavit or declaration made under penalty of perjury, which could qualify as an “unlawful act” as a violation of 18 USC 1623.  For an in-depth and engaging discussion of how statements, both written and oral, can result in the inability to show GMC, see Etape v. Napolitano, 664 F.Supp.2d 498 (D. MD 2009). Be aware that not all incidents of false testimony need be fatal to a finding of GMC. Where an individual gives false testimony under oath for reasons other than obtaining an immigration benefit, such statements may not undermine a showing of GMC. False statements or misrepresentations made because of “faulty memory, misinterpretation of a question, or innocent mistake,” United States v. Hovsepian, 422 F.3d 883, 887 (9th Cir. 2005), or as a result of “embarrassment, fear, or a desire for privacy,” Kungys v. United States, 485 U.S. 759 (1988), should not preclude a showing of GMC.  See also, Lawson, 795 F.Supp.2d at 294-295. False testimony raises another crucial issue for naturalization, separate from GMC. In a naturalization case, aside from showing GMC, an applicant must also demonstrate that he was lawfully admitted to the United States for permanent residence under INA 318.  Any fraud, misrepresentation, or material omission in the individual’s adjustment of status or immigrant visa process will not only prevent a person from naturalizing, it can also lead to recission of permanent residence under INA 246, if discovered within 5 years of admission, and to removal proceedings at any time. Even after naturalization, an individual can be subject to denaturalization and removal proceedings because of fraud, misrepresentation or material omission. Naturalization may be revoked pursuant to INA 340(a) where it was procured by concealment of a material fact or willful misrepresentation.

Prostitution

If a person has engaged in prostitution, procured or attempted to procure or to import prostitutes or receives the proceeds of prostitution, or was engaged in any other type of commercialized vice during the statutory period, he will be precluded from showing GMC.  This section does not require a conviction and applies even if the prostitution occurs in a jurisdiction where it is legal.  Prostitution is defined in the Department of State regulations as “promiscuous sexual intercourse for hire.”  22 CFR § 40.24(b).  However, one incident of prostitution does not constitute “engaging in” prostitution for the purpose of this bar to GMC.  See Matter of T, 6 I&N Dec. 474, 477 (BIA 1955).  Rather, to “ ‘engage in’ means to carry on over a period of time a type of conduct, a pattern of behavior, or form of activity in which sale of the body for carnal intercourse is an integral part . . . .”  Id. Similarly, in Matter of Gonazalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008), the BIA agreed with the respondent in that case that “ ‘procure’ does not extend to an act of solicitation of a prostitute on one’s own behalf.”  The PM cites to and indicates its agreement with these two cases.  Keep in mind that prostitution is generally considered a CIMT, see Matter of W, 4 I&N Dec. 401 (Cen. Office 1951), but a single conviction for prostitution will most likey fall within the petty offense exception in INA § 212(a)(2)(A)(ii)(II), and thus will not trigger the CIMT bar to GMC. Obviously, if a client has a prostitution conviction, you should check to make sure the petty offense exception applies.  More than one conviction, however, will bring the person within the CIMT bar to GMC, if during the statutory period, and will also make the person deportable under INA § 237(a)(2)(ii), inadmissible under INA § 212(a)(2)(A)(i), and subject to mandatory detention under INA § 236(c).  Please note that whether simple prostitution is a CIMT is currently being contested before the Board of Immigration Appeals, and AILA has submitted an amicus brief arguing that “the BIA should hold that simple prostitution is not categorically a crime involving moral turpitude for the sex worker or client.”A victim of human trafficking who had T nonimmigrant status and adjusted to LPR status, would presumably not have to be concerned about the prostitution bar to showing GMC, because his or her involvement with prostitution would likely have been over for at least 8 years, given that in order to qualify for LPR, one has to have been in T status for 3 years, and then to qualify for naturalization, one must be in LPR status for at least 5 years. However, any arrests and/or convictions must be disclosed in the naturalization process, and extenuating circumstances and equities will need to be presented to convince an officer to exercise discretion in the applicant’s favor.

Habitual Drunkard

A person who is a “habitual drunkard” during the statutory period cannot show GMC. The PM directs officers to examine various documents that may reveal habitual drunkenness including “divorce decrees, employment records, an arrest records.” PM Ch.5J.  Other factors that officers may look to in determining whether someone is a habitual drunkard include “termination of employment, unexplained periods of unemployment, and arrests or multiple convictions for public intoxication or driving under the influence.”  Id.  It is not clear how many convictions for or arrests for driving under the influence (DUI) would trigger a finding that someone is a habitual drunkard.  As a general matter, a single conviction for a simple DUI (or driving while intoxicated (DWI), without any aggravating factors, should not result in a negative determination regarding GMC.  See, e.g., Rangel v. Barrows, No. 07 Civ. 279(RAS), 2008 WL 4441974, at *3 (E.D.Tex. Sept. 25, 2008) (“[A] single DWI conviction is insufficient to preclude an applicant from establishing good moral character.”); Ragoonanan v. USCIS, No. 07 Civ. 3461(PAM), 2007 WL 4465208, at *4 (D.Minn. Dec. 18, 2007) (“[A] single DWI conviction, standing alone, does not statutorily bar a naturalization applicant from establishing good moral character when he has been candid about the conviction.”).  Even multiple DUI convictions have not resulted in a negative determination of GMC.  See, e.g., Yaqub v. Gonzales, No. 05 Civ. 170(TSH), 2006 WL 1582440, *5 (S.D.Ohio June 6, 2006) (holding that two DUI convictions do not preclude finding of good moral character, especially where applicant is “forthright”); Puciaty v. Dep’t of Justice, 125 F.Supp.2d 1035, 1039 (D.Haw.2000) (holding that two DUI arrests do not preclude finding of good moral character).  Moreover, simple DUI should not constitute a CIMT or a “crime of violence” aggravated felony. A single DUI conviction without aggravating factors, for example under a statute that does not include any elements relating to intent, such as an intent to harm, would not qualify as a CIMT, nor would multiple convictions for simple DUI. See e.g., Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001) (finding that multiple convictions for the same DUI offense, which individually is not a crime involving moral turpitude, do not, by themselves, aggregate into a conviction for a crime involving moral turpitude) (citing Matter of Fualaau, 21 I&N Dec. 475 (BIA 1996)).  After the Supreme Court decision in Leocal v. Ashcroft, 543 U.S. 1 (2004), simple DUI convictions do not generally qualify as “crime of violence” aggravated felonies.  Of course, each statute must examined to ensure the analysis in Leocal applies; in that case the key was the absence of a mental state that would give rise to a finding of moral turpitude.   However, if a client does have even just one DUI conviction, you have to be prepared to support the argument that a single DUI should not preclude demonstration of GMC, especially in light of the number of cases that go to the BIA and federal courts on this issue and reports coming out of field offices.

Bars that apply absent “extenuating circumstances”

For the following three conditional bars, which include the catchall of “unlawful acts,” unless the applicant can show extenuating circumstances, he will be found to lack GMC if any of the below occurred during the statutory period.  Keep in mind that with regard to these conditional bars, the applicant is effectively entitled to, and in all circumstances should, show extenuating circumstances.  In general, extenuating circumstances must precede or be contemporaneous with the commission of the offense – equities that arise after the commission of the offense will not be viewed as “extenuating circumstances” by DHS.  See PM, Ch.2E.

  • Willful Failure to Support Dependents
  • Extramarital Affairs which tended to destroy a marriage
  • Unlawful Act

The “unlawful acts” bar provides a broad spectrum of issues.  A person is precluded from showing GMC if, during the statutory period and in the absence of extenuating circumstances, he has committed “unlawful acts that adversely reflect upon the applicant’s moral character, or was convicted or imprisoned for such acts, although the acts do not fall within the purview of Sec.316.10(b)(1) or (2).”  According to the PM, an “ ‘unlawful act’ includes any act that is against the law, illegal or against moral or ethical standards of the community.  The fact that an act is a crime makes any commission thereof an unlawful act.”  PM Ch.5E.  The PM goes over the examples of unlawful voting, false claim to U.S. citizenship for voting, and failure to pay taxes.  Here we review common issues including traffic tickets, domestic disputes, and pending cases. In 2006, USCIS confirmed through AILA liaison that a “single traffic ticket that does not result in a disqualifying arrest or conviction under the INA or a non-criminal moving violation, standing alone, will not be the sole basis for a denial of naturalization for lack of the requisite moral character.”  You should review traffic tickets with your client and if they have a series of tickets, ask them to explain, because if they have a large number of tickets, this may lead to a question of whether an adjudicator will see your client as failing to live up to community standards in having a repeated series of unlawful acts.  Some clients may come to you with a history of domestic disputes.  Be sure to analyze carefully any contact your client may have had with the criminal justice system or family court, relating to any domestic altercations.  Determine whether the client has had arrests, convictions, or protective orders relating to a domestic incident. Domestic violence can result in convictions that count as CIMTs and/or aggravated felonies, and can trigger deportability under INA 237(a)(2)(E).  Where a client has been arrested but no charges resulted from the arrest, the arrest must still be disclosed on the Form N-400, because failure to disclose an arrest can constitute false testimony in the context of a naturalization interview. The arrest itself will likely trigger an inquiry into the “unlawful act” that led to the arrest, thus the client must be prepared to explain briefly what happened with the arrest in a way that will not lead to an admission that meets the definition of a “conviction” pursuant to INA § 101(a)(48) (Matter of K-, 7 I&N Dec. 594 (BIA 1957) mandates the specific procedure that a government official must follow in order to elicit an admission that may qualify as a conviction).  If a client has a pending case, even for something minor like a disorderly conduct or a simple DUI with no aggravating factors, it would be best to wait for the case to be resolved before applying for naturalization, or try to get the case resolved before the interview.  (Of course, even minor charges require analysis of the statute at issue to ensure what might at first appear minor is something more complex.) If it is not possible to reach resolution before an interview, when facing a charge that you have determined does not trigger any issues, such as a simple DUI (and there are no other problematic cases in your client’s history), you should be prepared to argue that even if a conviction were to result, your client can still meet his or her burden of establishing good moral character, especially in light of the fact that “we do not require perfection in our new citizens.”  Klig v. United States, 296 F.2d 343, 346 (2d Cir. 1961).

Catchall Provision

Finally, even if an individual does not fall within one of the permanent or conditional bars to establishing GMC, INA § 101(f) provides that this does not “preclude a finding that for other reasons such person is or was not of good moral character.”  This is where an adjudicator can exercise discretion in assessing GMC.  As noted above, adjudicators are required to consider the totality of the circumstances and engage in a balancing of factors in making a determination of GMC.  Thus it is our job as advocates to present as complete a picture of a client as possible where GMC is likely to be an issue.  A careful exploration of a client’s past and present will yield much useful information that can be used to present extenuating circumstances, reformation of character, and to demonstrate that the client has GMC sufficient to merit a grant of citizenship.  Keep in mind that GMC issues overlap with other issues and that if you get a red flag while going over GMC issues, your client might have much more significant problems and face risks including removal and mandatory detention.  Analysis of GMC will help you determine whether the client should or should not risk applying for naturalization, and in managing a client’s expectation as to how much of a fight will be necessary to show GMC, and in what venues (USCIS, AAO, federal court) that fight might need to take place.

ARE THERE SECOND CHANCES IN US IMMIGRATION LAW? JUDGE DENNY CHIN SHOWS THE WAY IN LAWSON v. USCIS

By Myriam Jaidi

Second Circuit Court Judge Denny Chin’s decision in Lawson v. USCIS, 09 Civ. 10195 (DC) (issued July 7, 2011) provides a beacon of hope for individuals who have overcome a reprehensible past and wish to pursue U.S. citizenship, and serves as an exemplar to advocates and adjudicators not only on the legal question of good moral character but also on the way to analyze other cases such as waivers requiring a demonstration of extreme hardship. Like the issue of good moral character, which was the lynch pin in Lawson, extreme hardship waivers require the same care in preparation and in adjudication revealed by Judge Chin’s searching legal analysis in Lawson. Judge Chin’s scrutiny and weighing of all relevant facts and legal issues in the case provides a guide to adjudicators on how to conduct the required “case by case” legal analysis. Judge Chin expertly applies the appropriate legal standards with a keen awareness of relevant policies and priorities, and a judicious exercise of discretion that results in justice triumphing over petty posturing.

Judge Chin’s decision also makes clear that applying a set of government priorities in determining whether a legal standard has been met does not mean that individuals will have an easy time of making their cases. Advocates should review the decision and the laws at issue for a sobering overview of just how high the standard is, and how much work and client preparation need be done to succeed in arguing that someone has demonstrated good moral character in the context of naturalization, or merits a favorable decision on a waiver application in the admissibility context. Adjudicators should, in turn, review the case for guidance, in the absence of guidance from DHS/USCIS, on how to apply the law within the framework of agency priorities.

Make no mistake: the road to showing someone merits a favorable finding of good moral character or a favorable exercise of discretion for a waiver, is a hard one and the bars in these case are nebulous and set quite high. Here we will explore the difficulties of establishing good moral character as a matter of law, but readers should keep in mind that the same principles for building and analyzing a case can readily apply in the waiver context as well.

Although courts have long espoused the notion that “[w]e do not require perfection in our new citizens,” Klig v. United States, 296 F.2d 343, 346 (2d Cir. 1961), those who have committed significant crimes or have other grave negative incidents in their past face an uphill battle that can be won only if they do not fall within one of the bars to establishing good moral character and only if they have made exemplary efforts to redeem themselves.

In Lawson, the court concluded that Vernon Lawson, a Vietnam War veteran honorably discharged from the Marines, established good moral character and therefore was eligible to naturalize despite the fact that he was convicted of manslaughter for killing his wife in 1985 because he paid his debt to society serving 13 years in prison and while there “he overcame his drug and alcohol problems, earned three degrees (including two with honors), completed several training programs, and counseled and taught other inmates.” Lawson at page 2.

In addition, Mr. Lawson continued his efforts at reform after he left the confines of prison:

Upon his release, he obtained gainful employment, and spent eight years as a drug abuse counselor, drawing on his own experience to help countless individuals deal with their addictions. He moved back home with his mother and took care of her as her health failed. He went to church every Sunday and regularly volunteered to help in church activities. He brought food to homeless veterans, played chess in a neighborhood chess club, and tended a neighborhood garden.

Lawson, at page 3. As described by Judge Chin, Mr. Lawson made extensive, ongoing efforts to overcome his past and though, as the court noted, he committed an “unspeakable act”, by the time of the court’s decision he had utterly reformed his life, had paid his debt to society, and therefore established that he met the legal standard for good moral character.

Judge Chin also spent considerable effort in examining Mr. Lawson’s life experiences and how these impacted him, to place Mr. Lawson’s efforts at redemption and the changes he effected in his life in context. Judge Chin closely considered Mr. Lawson’s horrific experiences in Vietnam, where he became a substance abuser as a result of the stress and suffered psychological damage. He did not get the necessary treatment until he was in prison more than 20 years after he returned from serving his country honorably.

In Mr. Lawson’s case, as in many cases, good moral character made the difference between deportation and US citizenship. That these two outcomes are alternatives in one case is astounding and underscores the importance of closely examining and mustering the positive efforts and achievements in an individual’s past and present, even where a significant obstacle to a finding of good moral character may exist. Doing so (and making the determination of whether someone should risk applying for naturalization), however, requires an understanding of the nebulous concept of good moral character as well as a firm grasp of the government’s policy goals.

Although the relevant legislative and regulatory frameworks provide an idea of what precludes a finding of good moral character, no definition exists and the term has been called “incapable of exact definition.” Posusta v. United States, 282 F.2d 533, 535 (2d Cir. 1961). The statutory and regulatory bars may be found in INA 101(f) and 8 CFR 316.10. These laws dictate a finding of a lack of good moral character for a person who has ever been convicted of murder, who has been convicted of an aggravated felony (defined in INA 101(a)(43)) after November 29, 1990, and who has at any time has engaged in conduct described in section 212(a)(3)(E) (relating to assistance in Nazi persecution, participation in genocide, or commission of acts of torture or extrajudicial killings) or 212(a)(2)(G) (relating to severe violations of religious freedom). Further, an applicant must be found to lack good moral character if during the relevant statutory period the applicant:

(i) Committed one or more crimes involving moral turpitude, other than a purely political offense, for which the applicant was convicted, except as specified in section 212(a)(2)(ii)(II) of the Act;
(ii) Committed two or more offenses for which the applicant was convicted and the aggregate sentence actually imposed was five years or more, provided that, if the offense was committed outside the United States, it was not a purely political offense;
(iii) Violated any law of the United States, any State, or any foreign country relating to a controlled substance, provided that the violation was not a single offense for simple possession of 30 grams or less of marijuana;
(iv) Admits committing any criminal act covered by paragraphs (b)(2) (i), (ii), or (iii) of this section for which there was never a formal charge, indictment, arrest, or conviction, whether committed in the United States or any other country;
(v) Is or was confined to a penal institution for an aggregate of 180 days pursuant to a conviction or convictions (provided that such confinement was not outside the United States due to a conviction outside the United States for a purely political offense);
(vi) Has given false testimony to obtain any benefit from the Act, if the testimony was made under oath or affirmation and with an intent to obtain an immigration benefit; this prohibition applies regardless of whether the information provided in the false testimony was material, in the sense that if given truthfully it would have rendered ineligible for benefits either the applicant or the person on whose behalf the applicant sought the benefit;
(vii) Is or was involved in prostitution or commercialized vice as described in section 212(a)(2)(D) of the Act;
(viii) Is or was involved in the smuggling of a person or persons into the United States as described in section 212(a)(6)(E) of the Act;
(ix) Has practiced or is practicing polygamy;
(x) Committed two or more gambling offenses for which the applicant was convicted;
(xi) Earns his or her income principally from illegal gambling activities; or
(xii) Is or was a habitual drunkard.

Finally, a third set of preclusions apply, which includes a catchall. Unless the applicant establishes extenuating circumstances, the applicant shall be found to lack good moral character if, during the statutory period, the applicant:

(i) Willfully failed or refused to support dependents;
(ii) Had an extramarital affair which tended to destroy an existing marriage; or
(iii) Committed unlawful acts that adversely reflect upon the applicant’s moral character, or was convicted or imprisoned for such acts, although the acts do not fall within the purview of §316.10(b) (1) or (2).

The time frame relevant to a determination of good moral character may reach well beyond the specific statutory periods relevant to particular types of petitions, for instance 5 years (individuals applying as lawful permanent residents under INA 316(a)(1)), 3 years (if LPR living for 3 years in marital union with US citizen spouse under INA 319(a)), 1 year (under regulations governing eligibility under INA 329). According to 8 CFR § 316.10(a)(2), USCIS may

take into consideration, as a basis for its determination, the applicant’s conduct and acts at any time prior to [the relevant statutory] period, if the conduct of the applicant during the statutory period does not reflect that there has been reform of character from an earlier period or if the earlier conduct and acts appear relevant to a determination of the applicant’s present moral character.

Within this framework, USCIS is directed by regulation to evaluate good moral character “on a case-by-case” basis. 8 CFR § 316.10(a)(2) There is sparse policy guidance on the question of good moral character. The Adjudicator’s Field Manual contains a lengthy section on good moral character but the section is designed to provide an overview of the statutory bars, methods of uncovering fraud, and procedures for defending challenges to a denial rather than apprising officers of how to objectively assess a person’s character within the framework of the laws and overarching agency policies. The AFM provides a baseline for analysis, specifically that “good moral character means character which measures up to the standards of average citizens of the community in which the applicant resides. Any conduct or acts which offend the accepted moral character standards of the community in which the applicant resides should be considered, without regard to whether the applicant has been arrested or convicted.” AFM 73.6(a). The AFM also provides some helpful guidance with regard to what kind of misstatements may be excused or insignificant because they do not demonstrate the requisite intent to deceive for an immigration benefit. (“[M]isrepresentations that results [sic] from poor memory or because the applicant did not understand the question are not false testimony.”) However, in the next paragraph, the AFM goes on to note that individuals use the failure to understand the question as a “very common defense” and refers readers to another section “regarding interviewing techniques and proper documentation to file in order to eliminate this line of defense.” Perhaps more helpful to adjudicators would be direction on how to figure out whether someone is using a “line of defense” or sincerely has not understood. Such direction is once again found in Judge Chin’s decision.

In Mr. Lawson’s case, the government finally based its effort to deport Mr. Lawson on its claim that he committed perjury (at the deposition taken as part of the action in district court regarding his application for naturalization) for the purpose of obtaining an immigration benefit (in violation of 8 CFR § 316.10(b)(2)(vi)). The government argued that Mr. Lawson did not truthfully answer a question about whether he continued to drink alcohol. Closely examining the questions asked and answers given, Judge Chin found that Mr. Lawson had not understood the question at the deposition. Judge Chin recognized that Mr. Lawson had interpreted the words “drinking” and “drinks” [and “alcohol”] to mean “hard liquor” and reasonably interpreted the question as inquiring whether he continued to engage in abusive drinking. The court concluded that Mr. Lawson could therefore not be found to have committed perjury for not mentioning that he occasionally had wine or beer at family gatherings. The court noted that “[i]n light of the case law and all of the compelling circumstances, the Government’s latest position seems nothing but petty.”

After Mr. Lawson’s many years of hard work to redeem his character, it is daunting to think that a misinterpretation of question could have made all the difference in his case. What saved Mr. Lawson was not only that the court found that he had not answered the question “falsely” but also that case law recognizes other possible motives for false statements besides that of seeking to obtain an immigration benefit or naturalization exist and requires these alternatives to be considered. Judge Chin reviewed case law recognizing that fear, embarrassment or a desire for privacy could be alternative reasons, see Kungys v. United States, 485 U.S. 759, 782 (1988) as could misinterpretation of a question. See United States v. Hovsepian, 422 F.3d 883 (9th Cir. 2005).

Hovsepian involved two individuals who had been convicted in the past of serious crimes, but who, like Mr. Lawson, had completely reformed their lives, both earning advanced degrees and becoming community and youth role models, devoting a great deal of their lives to community leadership. The government argued that in the course of their quest for naturalization, each made false statements on the Form N-400 and regarding other issues (one regarding the nature of a youth group to which he belonged; the other regarding other names by which he had been known). Ultimately, the court found no error in the lower court’s conclusion that the individuals had not given intentionally false testimony for the purpose of obtaining an immigration benefit. Interestingly, the court noted that the question on the form at issue — “Have you at any time, anywhere, ever ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion?” — was rife with potential for misinterpretation or different reasonable interpretations given the extensive case law regarding the concept of “persecution.”

Individuals and their advocates must parse the question of good moral character very carefully and prepare to answer questions carefully, asking for clarification where they do not understand in order to avoid running afoul of the legal standards by mistake. What might appear to be a lost cause may not be if the individual can demonstrate that he has changed for the better because the laws are not meant to punish “but to admit as citizens those who are law-abiding and useful.” Posusta, 285 F.2d at 535-36. Circuit Judge Chin’s decision serves as an excellent reference for understanding what good moral character is and how it can be demonstrated. It also presents guidance for individuals who seek to reform themselves after having committed an act that stands as an obstacle (though not falling within the statutory bars) to naturalization. These individuals must demonstrate sincere and significant efforts to become upstanding and engaged contributors to their communities and to the nation in order to merit a favorable finding on their behalf. Finally, the decision serves, in the absence of guidance from DHS/USCIS on the adjudication of good moral character and similarly the exercise of discretion in waiver cases, as an exacting guide of the type of searching legal and factual inquiry adjudicators should make in these cases, not simply to uncover suspected fraud, but to analyze a person in light of their experiences, their mistakes, and their efforts to remake themselves into law-abiding and useful members of their local and national communities.