Good moral character matters in immigration and naturalization processes

Jonas was petitioned by an American employer to work as a software engineer. He was given a working (H1B) visa in 2005, valid until 2008. A year after his arrival, however, Jonas was arrested while traveling domestically from Los Angeles to New York. A Transportation Security Administration (TSA) agent discovered methamphetamine and drug paraphernalia in his luggage. Jonas was taken into custody and charged with illegal possession of a controlled substance, a criminal offense.

During his trial, Jonas’ defense lawyer entered into an agreement with the prosecutor to avoid a criminal conviction. He arranged for Jonas to be part of the State of California’s drug diversion program. On condition that Jonas should have negative results in all his drug tests and upon completion of a drug rehabilitation program, his case would be dismissed. After a year, Jonas met all the conditions of the program, was deemed fully rehabilitated, and his criminal case dismissed. He was never convicted of the drug offense.

Prior to the expiration of the H1B visa of Jonas, his employer filed a Petition for Immigrant Visa on his behalf. This petition was approved and Jonas was able to obtain his permanent residency card.

In 2014, Jonas married his long time fiancé who was visiting in California. In order for Jonas to petition his fiancé, he decided to file for naturalization to US citizenship. At his interview for citizenship with the Citizenship and Immigration Services, Jonas’  drug case in 2008 was discovered.  Aside from his drug case, Jonas was also found to have reneged on child support payments for a child he sired with a woman he met at his place of work.

According to the immigration examiner, Jonas must prove  ‘good moral character’ before he can be granted US citizenship.

Drunkards, womanizers

An individual who has a personal history of honesty, fairness, respect for the rights of others and for the law is considered a person of good moral character. The Immigration and Nationality Act defines good moral character in the negative: A person is deemed to have good moral character if he has not committed certain violations of the law or committed certain specified acts.

Committing certain acts such as human smuggling, prostitution, illegal gambling, being a habitual drunkard are enumerated as actions, which while not necessarily amounting to crime as defined under penal law, leads nevertheless to a finding of lack of good moral character.

Failure to comply with family obligations to support a child by refusal to pay child support is also in the list defining a person as lacking in good moral character.

Very seldom enforced in immigration law but which may also be a valid ground for finding of lack of good moral character is having an extramarital affair which tended to destroy an existing marriage.

Why character matters

If the applicant for a visa is determined to have committed certain crimes or committed acts defined in the law as constituting lack of good moral character, he would be denied the visa. The same rule applies to those who are applying for naturalization such as in the case of Jonas.

Even those seeking visas, which are humanitarian in nature, must also prove good moral character. A victim of domestic violence, a widow  of a  US citizen, victims of human trafficking—they are all required to possess good moral character before their visas are approved.

In obtaining the relief from deportation, the law requires the individual in proceedings to show good moral character otherwise, his deportation proceedings will not be dismissed.

Underlying conduct

While a person’s character is a significant consideration in applications for visas, past underlying conduct constituting the crime or the criminal charges do not necessarily translate to a finding of lack of good moral character. Several factors have to be taken into account before denial of the immigration benefits are made on certain applications. Oftentimes, depending on the nature of the offense, the person’s rehabilitation from his past mistakes will be considered a positive element for the grant of the immigration visa.

Drug cases

In crimes involving controlled substances, admission of its use may be ground for denials of visas. In criminal proceedings that involve the illegal use of controlled substances, therefore, it is important that the criminal case be handled in a manner that will have no serious immigration impact. Plea deals in criminal court should be carefully designed so as not to have adverse immigration consequences on the person accused.

In Jonas’s case, the diversion program and eventual dismissal of the drug crime has no adverse impact on his naturalization application. He should, however, make good on all his child support arrearages, in order strengthen his position that he is a person of good moral character deserving of the rights of citizenship.

(Atty. Lourdes Tancinco may be reached at [email protected] or at (02)7211963 or visit her website at www.tancinco.com)