Criteria For Naturalization And Selected Problem Areas
December 30, 2005
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Introduction In an era of heightened enforcement
against noncitizens, naturalization offers a number of important benefits such
as the right to vote and also immunity against deportation.
While
naturalization appears to be a relatively simple process, it also has many
pitfalls. The attorney must carefully evaluate the client’s eligibility for
naturalization. Issues such as long trips outside the U.S. or not registering
for Selective Service could lead to a denial of the application. Even if the
client is eligible, one must watch for prior criminal offenses that could
not only lead to a denial of the naturalization application, but could place
the person in removal proceedings with no recourse for relief.
The Application
for Naturalization (Form N-400) must be properly completed and mailed to the
Service Center of the United States Citizenship and Immigration Services
(USCIS) having jurisdiction over the applicant’s residence. Two photographs of
the applicant and a copy of the applicant’s alien resident card must accompany
it. Additional documents should be submitted at the time of the interview. The
USCIS will send notification to the applicant to proceed for fingerprinting in
a few months. An interview is normally scheduled within one year after the
application is filed by an applicant residing in New York. At the interview,
the applicant is tested on his or her basic understanding of English as well
as basic knowledge of U.S. history and government. The applicant must also
establish good moral character. If all is successful, a swearing ceremony is
scheduled where the applicant has to take an oath of allegiance to the U.S.
and citizenship is granted on the same day.
This outline will highlight the
eligibility criteria for naturalization and also discuss selected problem
areas.
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Eligibility Criteria
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The applicant must be a Lawful Permanent Resident (LPR). INA §
318. He/she must be 18 years old, INA § 334(b), although this age
requirement is waived due to military service pursuant to INA § 329. If a
person has honorably served in time of war or declared hostility, LPR status
as a precondition is unnecessary if enlistment occurred in the US or
outlying possessions or on a US vessel. INA § 329. Posthumous citizenship
may also be granted through death if a person honorably served in a time of
war or declared hostility, provided that person enlisted, as above, or was
admitted as an LPR after enlisting. INA § 329A.
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The applicant must be a resident continuously for 5 years
immediately preceding the date of filing the application. INA § 316(a).
Under INA §101(a)(33), residence is defined as a place of abode; meaning the
actual dwelling place in fact, without regard to intent. The concept of
domicile, which considers intent rather than where the applicant actually
lives, is not relevant. Continuous residence does not mean that an applicant
cannot be absent from the United States. 8 C.F.R. § 316.5(c)(1)(i) states
that an absence of more than six months and less than a year shall disrupt
continuity of residence for purposes of naturalization, unless the applicant
can establish that he/she did not terminate his or her employment in the US,
the applicant’s immediate family remained in the US, the applicant retained
full access to his or her US abode, or the applicant did not obtain
employment while abroad. During these 5 years, the applicant must have been
physically present in the U.S. for periods totaling at least one half of
that time. Id. Furthermore, the applicant should have resided
continuously within the U.S. from the date of the application up to the time
of admission for citizenship. Id. Part 7 on Form N-400, concerning all dates
of entry and exit from the U.S., must be carefully and accurately completed.
At the interview, the USCIS may require to see previously filed tax returns,
verification of trips on the passport and other proof if there is any doubt
that the applicant has not met the requirement of “physical presence in the
U.S.”
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If the applicant is married to a U.S. citizen (USC), the
residency requirement is reduced to 3 years if the spouse has been a USC for
3 years and the parties have been living in “marital union” at the time of
filing the application for three years. INA §319(a). However, the
regulations require the three years of “marital union” preceding the date of
examination on the application, which goes beyond the filing date. 8 C.F.R.
§ 319.1(a)(3). Divorce, legal separation, expatriation or death would break
the “marital union” requirement. 8 C.F.R. § 319.1(b)(2)(i). An informal
separation will be evaluated on a case by case basis to determine whether it
is sufficient to signify a dissolution of the marriage. 8 C.F.R. §
319.1(b)(2)(ii)(B). Involuntary separation due to military service or
occupational demands will not disrupt the “marital union” requirement. 8
C.F.R. § 319.1(b)(2)(c). When the residency requirement is only three years,
the applicant must have been physically present in the U.S. for periods
totaling at least one-half of that time.
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The applicant must have resided at least three months within
the state in which the petition is filed. INA §§ 316(a)(1), 319(a). Note
that Part 4 of the application, concerning the applicant’s current address,
should be consistent with this requirement. The USCIS permits applications
to be filed 4 years and 9 months after acquiring permanent residency, and 2
years and 9 months in the case of a spouse of a USC. 8 C.F.R. § 310.2. A
corollary to this provision allows an application to be filed up to 3 months
before the date the applicant would first meet the requirement. INA §
332(a). At the time of examination, the applicant will be required to prove
that he or she satisfies the residence requirement.
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The applicant must not be absent from the U.S. for a
continuous period of more than one year during the periods for which
continuous residence is required. INA § 316, 8 C.F.R. § 316.5(c)(1)(ii). If
there has been an absence of one or more years, it would break the
continuity of residence and wipe the slate clean. If the applicant did not
obtain a reentry permit to remain outside the U.S. for more than one year,
he or she would also not be able to use the alien resident card to travel
back to the U.S. If a person has broken the continuity of residence, he or
she could only apply 4 years and 1 day following the date of his or her
return to the U.S. to resume residency. If the statutory period is 3 years,
then it is 2 years and 1 day following his or her return. 8 C.F.R. §
316.5(c)(1)(ii). As noted, an absence of more than six months but less than
one year during the periods for which continuous residence is required
establishes a presumption against compliance with the continuous residency
requirement. However, this can be rebutted. INA § 316(b), 8 C.F.R. §
316.5(c)(1) (i). The regulation at 8 C.F.R. 316.5(c)(1)(i) provide examples,
which would support a claim that residence had not been interrupted even if
there has been a period of absence between six and twelve months:
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The applicant did not terminate his or her employment in the
U.S.;
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The applicant’s immediate family remained in the U.S.;
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The applicant retained full access to his or her U.S. abode;
or
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The applicant did not obtain employment while abroad.
The regulation goes on to note that documentation “is not
limited” to these specific categories of evidence.
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There exist certain statutory exemptions based on the one year
continuous absence abroad. Below are some of the exceptions:
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Employees working abroad who obtain approval to preserve
their residency (by filing Form N-470), INA § 316(b). To be eligible for
the exemption, the applicant must demonstrate one year of actual unbroken
physical presence in the U.S. after acquiring LPR status. The applicant
must be working abroad for the U.S. government; a recognized U.S.
institution of research; a U.S. firm or corporation engaged in whole or
part in the development of foreign trade and commerce of the U.S. or a
subsidiary in which a majority of the stock is owned by the U.S. entity;
or a public international organization of which the U.S. is a member by
treaty a statute (and employment must have commenced after the applicant’s
admission as an LPR).
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Spouses of USCs working abroad can obtain expedited
citizenship. INA § 319(b). The citizen spouse must be “regularly
stationed abroad” in the employment of US government, US institution of
research recognized by the AG (8 CFR §316.20(a)), US corporation (or
subsidiary) in the development of foreign trade, or performing ministerial
or missionary functions on behalf of a bona fide US religious
organization. Thus, the citizen spouse need not be permanently assigned
abroad, and at the same time the assignment cannot be short or casual. The citizen spouse
can still be in the US at the time of naturalization if he or she is
proceeding abroad for not less than one year pursuant to an employment
contract or orders. 8 C.F.R. § 319.2 (a)(1). The alien spouse also has to
have permanent residence. 8 C.F.R. § 319.2(a)(2). There is no set period
of demonstrating good moral character. However, past conduct will still
guide in the evaluation of the applicant’s present moral character.
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Military service abroad based on periods aggregating one
year+ and if the alien is separated under honorable conditions. INA § 328.
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The applicant must be a person of good moral character for the
requisite five years. In the case of a spouse married to a USC, the period
for demonstrating good moral character is three years. The applicant must
maintain good moral character up to the time of admission to citizenship.
INA §§ 316(a)(3), 319(a)(1).
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Statutory ineligibility grounds for good moral character are
found at INA § 101(f). These include habitual drunkards, those who have
committed or been convicted of crimes under INA § 212(a)(2)(A) and (B) as
well as aliens who have been involved in illicit trafficking in controlled
substances under § 212(a)(2)(C) (except to a single offence of simple
possession of 30 grams or less or marijuana). It also includes aliens
involved in prostitution and commercialized vice under § 212(a) (2) (D),
alien smugglers under § 212(a)(6)(E) and aliens previously removed under §
212(a)(9)(A). Other statutory grounds include one whose income is derived
principally from illegal gambling activities; one who has been convicted
of two or more gambling offenses committed during such period; one who has
given false testimony for the purpose of obtaining any benefits; one who
during such period has been confined, as a result of conviction, to a
penal institution for an aggregate period of one hundred and eighty days
or more, regardless of whether the offense, or offenses, for which s/he
has been confined were committed within or without such period; and one
who at any time has been convicted of an aggravated felony as defined in
INA § 101(a)(43).
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The regulations at 8 CFR § 316.10 further provide that the
naturalization applicant shall be found to lack good moral character if
the applicant:
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Has been convicted of murder at any time.
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Has been convicted after November 29, 1990, of an
aggravated felony, as defined in INA § 101(a)(43).
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During the statutory residence period:
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Committed one or more crimes involving moral turpitude,
other than a purely political offense, for which the applicant was
convicted, except as specified in INA § 212(a)(2)(A)(ii)(II) (petty
offense exception);
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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
U.S., it was not a purely political offense;
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Violated any law of the U.S., 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;
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Admits committing any criminal act described above for
which there was never a formal charge, indictment, arrest, or
conviction, whether committed in the U.S. or any other country;
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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 due to a conviction outside
the U.S. for a purely political offense);
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Has given false testimony to obtain any benefit under
the INA, where the testimony was made orally, under oath or
affirmation, and with an intent to obtain an immigration benefit. This
prohibition applies regardless of whether the information provided n
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
benefits.1
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Is or was involved in prostitution of a person or
persons into the U.S., as described in INA § 212(a)(6)(E);
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Has practiced or is practicing polygamy;
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Committed two or more gambling offenses for which the
applicant was convicted;
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Earns his or her income principally from illegal
gambling activities; or was a habitual drunkard.
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Unless the applicant establishes extenuating
circumstances, he or she will be found to lack good moral character if,
during the statutory period, the applicant:
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Willfully failed to or refused to support dependents;
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Had an extramarital affair which tended to destroy an
existing marriage2; or
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Committed any unlawful acts that adversely reflect upon
the applicant’s moral character, whether or not the actions led to a
conviction or imprisonment. This is a catch all provision that allows
an examiner to deny an application even if the alleged acts do not
fall within the purview of the above provisions.
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Probation, parole or a suspended sentence during the
statutory period does not preclude establishing good moral character,
but may be considered by the Service in determining good moral
character. 8 C.F.R. § 316.10(c)(1). An applicant will not be approved
until after probation, parole or suspended sentence has been
completed. 8 C.F.R. § 316.10(c)(2). The regulations also deal with the
impact of pardons and expungments on good moral character. 8 C.F.R. §§
316.10(c)(2) and (c)(3).
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The attorney must also review the grounds of removability
under INA § 237 to determine whether the applicant risks exposure to
removal in addition to risking denial of the application. Below are key
provisions of removability that an attorney must examine when examining
the criminal record of the applicant:
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§ 237(a)(2)(A)(i)(I) & (II) – an alien who is
convicted of a crime involving moral turpitude committed within five
years after the date of admission and is convicted of a crime for which
a sentence of one year or longer may be imposed
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§ 237(a)(2)(A)(ii) - an alien who at any time after
admission is convicted of two or more crimes involving moral turpitude,
not arising out of a single scheme of criminal misconduct, regardless of
whether confined therefore and regardless of whether the convictions
were in a single trial, is deportable.
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§ 237(a)(2)(A)(iii) – an alien who is convicted of an
aggravated felony at any time after admission is deportable.
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§ 237(E) – an alien who at any time after entry is
convicted of a crime of domestic violence, stalking, or related crimes
involving child abuse is deportable. Similarly, an alien who at any time
after entry violates a protection order is also deportable.
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§ 237(a)(2)(B) - an alien who has been convicted of any
law or regulation relating to a controlled substance, other than a
single offense involving possession for one’s own use of 30 grams or
less of marijuana.
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Also beware of inadmissibility even if a crime of moral
turpitude is not deportable. An alien who was inadmissible at the time
of entry under § 237(a) (1) (A) is deportable. Thus, under
§101(a)(13)(A), an alien who committed an offence identified in § 212(a)
(2) may be found deportable today if he or she was admitted into the
U.S. without incident previously.
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Every male USC or LPR resident (except those on nonimmigrant
visas) must register for selective service between 18 and 26 years of age.
Failure to comply with this selective service registration requirement is a
ground for denial based on a lack of good moral character if the person
knowingly or willfully failed to register. According to an INS
General Counsel Memo,3 failure to register raises concerns regarding good
moral character, attachment to the principles of the Constitution, and being
well disposed to the good order and happiness of the U.S., as well as the
requirement that the applicant must be willing to bear arms on behalf of the
U.S. when required by the law. An individual between 18 and 26 years of age
who has failed to register would be denied naturalization. Individuals
between 26 and 31 years of age who failed to register risk denial based on
lack of good moral character unless the failure to register was not knowing
and willful. For individuals over 31, the failure to register would be
outside the 5-year period for good moral character but USCIS would want to
be satisfied that the applicant is currently a person of good moral
character.
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The applicant must be attached to the principles of the
Constitution and be well disposed to the good order and happiness of the
U.S. INA § 316(a)(3). Part 9 of N-4004 requires the applicant to reveal all
organizations s/he has ever been a member of in the past.
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The applicant must be willing to “(A) bear arms on behalf of
the U.S. when required by law, or B) to perform noncombat service in the
Armed Forces of the United States when required by law, or C) to perform
work of national importance under civilian direction when required by the
law.” INA § 337(a)(5)(A)-(C). A person may oppose to bear arms based on
“religious training and belief.” This term, according to INA § 337(a)(C),
means “an individual’s belief in relation to a Supreme Being involving
duties superior to those arising from any human relation, but does not
include essentially political, sociological, or philosophical views or a
merely personal moral code.”
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The applicant must not be a subversive (INA § 313, 316(f));
member of the communist party (INA § 313(a)), unless it was involuntary or
otherwise excusable under INA § 313(d)); convicted deserter (INA § 314); an
alien who has removal proceedings pending or an outstanding order of
deportation, (INA § 318);5 or an alien who has applied for and received relief
from the Selective Service System based on his alien age (INA § 315(a)).
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The applicant must demonstrate an elementary level of reading,
writing and understanding of the English language. INA § 312(a)(1). The
applicant must also demonstrate a knowledge and understanding of the
fundamentals of the history and government of the U.S. INA § 312(a)(2). The
English language requirement shall not apply to (1) persons who are over 50
and living in the U.S. for 20 years subsequent to LPR status; or (2) persons
who are over 55 years of age and living in U.S. for 15 years subsequent to
LPR status. INA § 312(b)(2)(A) & (B). The USCIS will also give special
consideration to persons over 65 with 20 years as an LPR with respect to
their knowledge of history and government. INA § 212(b)(3). Furthermore, the
English language and history/government requirements are waived for persons
who are unable to comply because they posses a physical or developmental
disability or mental impairment. INA § 312(a)(2). The oath requirement has
recently been waived for people who cannot comprehend it because of a
physical or developmental disability or a mental impairment. INA §
337(a)(5).
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Selected Problem Areas
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Establishing continuity of residence: Naturalization
examiners are scrutinizing extended trips outside the U.S. more closely.
With respect to absences of more than six months and less than one year,
there appears to be an increasing tendency for the USCIS to deny such
applications on ground that the applicant has failed to maintain continuous
residence in the U.S. If an applicant has had absences of more than six
months and less than a year, he or she must still be given the opportunity
to rebut a presumption of disruption of continuous residence, provided that
the total time spent in the U.S. complies with the INA’s “physical presence”
requirements. Such evidence includes, but is not limited to, the following:
evidence that one’s employment in the U.S. was not terminated (or evidence
that applicant continued to receive benefits such as health coverage);
evidence that the applicant continued to maintain a residence in the U.S.;
evidence that family members remained in the U.S. while the applicant was
outside the U.S.; or evidence that the applicant did not seek or obtain
employment abroad. It is essential that applicants be able to establish that
their intention was to maintain residence in the U.S. and substantiate this
intention with as much documentary evidence as possible prior the interview,
to prevent a denial of the application. Maintaining an apartment in the U.S.
but renting it out the whole time may not be a successful argument. Also,
working overseas on behalf of a US business/entity may not succeed. Note
that the 180 + day interruption should be within the qualifying 3/5 year
period. 180 + day trips outside the qualifying period should not be
relevant. Moreover, the departure should be more than 180 days. Some
examiners improperly club two back to back trips out of the US of less than
180 days. It will remain the applicant’s burden to prepare a solid case.
Also, if an applicant filed a non-resident federal/state tax return, or
failed to file federal/state returns because he/she considers himself or
herself to be a nonresident alien, it raises a rebuttable presumption that
the applicant has relinquished the privileges of permanent resident status
in the U.S. 8 CFR § 316.5(c)(2).
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Permanent residence not lawfully obtained: If your
client obtained permanent residence unlawfully, it can come to the attention
of the USCIS during naturalization processing. For instance, an applicant
could have immigrated under the family second preference categories while
being married. The second preference categories are only applicable to the
child (category 2A) or son or daughter (category 2B) of permanent residents
who remain unmarried. There could also be situations where the applicant
immigrated through an employment petition based on an approved labor
certification. The applicant never reported to work for the sponsoring
employer and cannot remember the employer’s name or its address.6
If the applicant obtained permanent residency through the
legalization programs of the 1980s, make sure that he or she was eligible
for them. Finally, one can also encounter situations where the applicant
obtained residence through a fraudulent marriage. This issue goes hand in
hand with questions 23 and 24 in Form N-400 under “Part D. Good Moral
Character:” Part D, Question 23 on Form N-400 asks: “Have you ever given
false or misleading information to any U.S. government official while
applying for any immigration benefit or to prevent deportation, exclusion or
removal?” Part D, Question 24 on N-400 asks: “Have you ever lied to any U.S.
government official to gain entry or admission into the United States?” If
the prior “lie” or “misrepresentation” was cured through a waiver, would it
still have bearing on moral character? Practitioners must be very careful in
responding to this question. If the client answers affirmatively to
questions 23 and 24, the practitioner should check whether client had
obtained a waiver before obtaining permanent residency. The attorney should
also examine his or her ethical obligations if the client answers
affirmatively, but does not want to disclose the answer on the N-400
application. The attorney must also discuss with the client the consequences
that such a response would have on his or her ability to remain a permanent
resident. The language in this question is overly broad and does not
parallel the misrepresentation provision under INA § 212(a)(6)(C) which is
“any alien who, by fraud or willfully misrepresenting a material fact, seeks
to procure (or has sought to procure or has procured) a visa, other
documentation, or admission into the United States or other benefit provided
under this Act is inadmissible.” There is also no articulated definition of
the term “lied.”
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Applicant migrated legally but subsequently abandoned
permanent residence : Often times, one may encounter a client who has
stayed outside the U.S. for over a year without a reentry permit. This
person may have been mistakenly admitted into the U.S. in the distant past
after a trip in excess of a year. Since Form N-400 requires a listing of all
dates of exit and entry into the U.S., time spent overseas for more than one
year without a reentry permit would signal that the applicant had in the
worst case scenario abandoned permanent residence, or at least was
inadmissible at the time of his or her last entry into the U.S.7
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Applicant has conviction that subjects him or her to
removal: USCIS interviewing officers are more focused on applicants’
arrest records than any other aspect of the application. On the other hand,
many individuals minimize the significance or even deny an arrest. Some
arrests may not lead to a denial of the application or lead to removal, but
the very failure to mention it on the application could have adverse
consequences for the applicant. When a client presents an arrest record, the
practitioner has to decide whether that arrest or conviction would merely
jeopardize the citizenship application or also cause the applicant to be
placed in removal proceedings. It is important to determine whether the
arrest or conviction would undermine the applicant’s good moral character as
well as whether it would lead to removal. Refer to Section B7, above, to
assist you in making such a determination.
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Applicant’s conditional residence has not been determined :
An applicant who has obtained conditional residence must file a
petition, either file Form I-751 jointly with the USC spouse, or by himself
or herself via a waiver, to remove the conditions on permanent residence.
Many I-751 petitions to remove conditions of residence are taking a long
period of time. In the meantime, the applicant has become eligible for
naturalization. Just because a Form I-751 has not been adjudicated should
not deter an applicant to apply for naturalization. An applicant who is
waiting for removal of the conditions on permanent residence could still
apply for citizenship.8 If the naturalization interview comes first, the
USCIS may be forced to adjudicate the Form I-751 application.
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Applicant’s failure to pay child support: Another issue
that could undermine an applicant’s good moral character is failure to
support dependants or pay alimony (Question 23 of Form N-400). However,
“failure to make all required child support payments does not in and of
itself show an absence of good moral character.” In Re Halas”
Petition, 274 F. Supp. 604 (E.D. Pa. 1958). The court went on to say
that, “Had the petitioner made a sincere effort to fulfill his obligation,
we would be more disposed to favorably consider his petition.”
Id.at 606. When an applicant for naturalization fails to meet all
of his/her support obligations because of a lack of income, the courts have
been reluctant to label such a father a person of bad moral character. In
one specific case, a father was unable to fulfill his support obligation to
two of his four children for a period in excess of one year. Because the
struggling father made a diligent effort to meet his support obligation, the
court refused to find him lacking in good moral character. In Re
Petition for Naturalization of Andras Huymaier, 345 F.Supp. 339
(E.D.Pa. 1972). In another case, the petitioner stopped paying support after
encountering extreme difficulty in obtaining the visitation he was entitled
to. In Re Petition for Naturalization of Hassan Mirshah Valad, 465
F. Supp. 120 (E.D. Va. 1979). The court found that the petitioner’s
frustrated reaction to his ex-wife’s treatment of his visitation entitlement
did not warrant a conclusion that he was lacking in good moral character.
Only when an applicant has admitted his/her intention not to support his
children will a court deny a finding of good moral character. In the case of
Petition forNaturalization of Djordje Dobric, 189 F.Supp.
638 (D. Minn. 1960), a man who admitted he had no intention of supporting
his children because his first wife had sufficient means had his application
denied. The court emphasized a naturalistic concern for one’s young and the
natural law of parental responsibility.
1False immaterial testimony cannot be used to establish deportability.
See Ramero v INS, 39 F.3d 977 (9 th Cir. 1994). See also Plewa
v. INS, 77 F. Supp 2d 905 (N.D. Ill. 1999) (in which the court held
that failure to disclose an immaterial arrest based on erroneous advice from
an immigration counselor did not disqualify the applicant from establishing
good moral character even though the applicant lied under oath to the INS
examiner).
2While homosexuality used to be a bar, it has been
relaxed over the years and should now be totally irrelevant in light of the
recent Supreme Court decision in Lawrence et al v. Texas, 123 S.
Ct. 2472 (2003). According to USCIS Interpretations at 316.1(7), a “showing
of good moral character is precluded where the homosexual practices have
adverse public effects: when the homosexual act involves minors, or the use
of threat or fraud, or the taking or giving of money or anything of value,
or the act of solicitation thereof in a public place, or the homosexual act
itself is engaged in a public place, or the conduct is violative of marital
vows"
3See General Counsel Memo to Eastern Regional Counsel,
reproduced in 76 Interpreter Releases 562-63, 573-75 (Apr. 12,
1999).
4The practitioner must take care to find out that none of
the organizations has been designated by the Secretary of State as a
terrorist organization pursuant to INA § 219(a).
5Persons who served honorably in the US military
during times of war, INA § 329, or persons who have honorable military
service aggregating three years, INA § 328, are exempted from this bar.
Also, if a client who is in removal proceedings is prima facie eligible
for naturalization, it is possible to file a motion for termination upon
a showing of exceptionally appealing or humanitarian factors. 8 CFR §1239.2(f);
See alsoGatcliffie v.Reno, 23 F. Supp. 2d 581 (D.V.I. 1998)
district court reversed and remanded naturalization denial because the deportable
convictions were outside the period of good moral character).
6In such instances, the practitioner should examine whether
the applicant properly exercised "portability." Pursuant to INA § 204(j), an individual
whose application for adjustment of status pursuant to Section 245 has been filed and remains
unadjudicated for 180 days or more shall remain valid with respect to a new
job if the individual changes jobs or employers if the new job is in the
same or a similar occupational classification as the job for which the
petition was filed.
7Prior to filing the Form N-400, one creative
strategy, if the client was inadmissible at the time of entry, is to attempt
to file a waiver of the immigrant visa requirement under INA § 211(b) on a
nunc pro tunc basis.
8See exchange of correspondence
between Paul Novak, Director of Vermont Service Center, and a New York
attorney, Timothy Herrick, reproduced in 79 Interpreter Releases 66
(January 14, 2002).
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