Law Office of Joseph Muller

USCIS Expands Unlawful Acts for Naturalization

Last updated on January 20, 2020

USCIS announced changes to acts that are considered “unlawful” for purposes of determining “good moral character.” This is an important change that affects several different types of benefits, including naturalization applications for people applying for US Citizenship. Any person who believes they have ever had issues with any of the new unlawful acts should seek legal counsel before applying for naturalization.

Read the full announcement below:

WASHINGTON— Today, U.S. Citizenship and Immigration Services expanded its policy guidance regarding unlawful acts that may prevent an applicant from meeting the good moral character (GMC) requirement for naturalization. The commission of, or conviction or imprisonment for, an unlawful act, during the statutory period for naturalization, may render an applicant ineligible for naturalization should the act be found to adversely reflect on moral character.  

Previously, the USCIS Policy Manual did not include extensive information on unlawful acts. This update to the Policy Manual provides additional examples of unlawful acts and instructions to ensure USCIS adjudicators make uniform and fair determinations, and further identifies unlawful acts that may affect GMC based on judicial precedent. This update does not change the impact of an unlawful act on USCIS’ analysis of whether an applicant can demonstrate GMC. Adjudicators in the field receive extensive training to apply the law on GMC and unlawful acts regulation. They are aware of which unlawful acts could bar an applicant from naturalization and are not limited by the examples listed in the Policy Manual.

On Dec. 10, USCIS issued separate policy guidance in the USCIS Policy Manual about how two or more convictions for driving under the influence or post-sentencing changes to criminal sentencing might affect GMC determinations.

“In the Immigration and Nationality Act, Congress determined that good moral character is a requirement for naturalization,” said USCIS Deputy Director Mark Koumans. “USCIS is committed to faithfully administering our nation’s lawful immigration system, and this update helps to ensure that our agency’s adjudicators make uniform and fair decisions concerning the consideration of unlawful acts on good moral character when determining eligibility for U.S. citizenship.”

Under the Immigration and Nationality Act (INA), an applicant for naturalization must establish GMC. Although the INA does not directly define GMC, it does describe certain acts that bar establishing GMC of an applicant. Examples of unlawful acts recognized by case law as barring GMC include, but are not limited to, the following:

bail jumping;

bank fraud;

conspiracy to distribute a controlled substance;

failure to file or pay taxes;

false claim to U.S. citizenship;

falsification of records;

forgery uttering;

insurance fraud;

obstruction of justice;

sexual assault;

Social Security fraud;

unlawful harassment;

unlawful registration to vote;

unlawful voting; and

violation of a U.S. embargo.

In general, applicants must show they have been, and continue to be, people of GMC during the statutory period before filing for naturalization and up until they take the Oath of Allegiance. The statutory period is generally five years for permanent residents of the United States, three years for applicants married to a U.S. citizen, and one year for certain applicants applying on the basis of qualifying U.S. military service.

USCIS officers must continue to perform a case-by-case analysis to determine whether an act is unlawful and adversely reflects on an applicant’s good moral character. They must also determine whether there are extenuating circumstances. An extenuating circumstance must pertain to the unlawful act and must precede or be contemporaneous with the commission of the unlawful act. Training for adjudicators will be updated to reflect this expanded guidance.

For more information on USCIS and its programs, please visit uscis.gov or follow us on Twitter (@uscis), Instagram (/uscis), YouTube (/uscis), Facebook (/uscis), and LinkedIn (/uscis).

New BIA Decision in Matter of Y-I-M-

Last updated on December 26, 2019

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The BIA published a new decision on December 12, 2019. Matter of Y-I-M-, 27 I&N Dec. 724 (BIA 2019), discusses findings of adverse credibility in the context of an asylum application in removal proceedings. The BIA held that:

(1) An Immigration Judge may rely on inconsistencies to support an adverse credibility finding as long as either the Immigration Judge, the applicant, or the Department of Homeland Security has identified the discrepancies and the applicant has been given an opportunity to explain them during the hearing.

(2) An Immigration Judge may, but is not required to, personally identify an obvious inconsistency where it is reasonable to assume that the applicant was aware of it and had an opportunity to offer an explanation before the Immigration Judge relied on it.

In essence, this decision makes it easier for an immigration judge to find, and the BIA to uphold, adverse credibility decisions. The BIA declined to adopt more stringent requirements for what a judge must do before determining that an applicant for asylum has not been credible.

Read the full decision here.

USCIS Adopts Decisions on Good Moral Character

Last updated on December 26, 2019

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On December 10th, 2019, USCIS announced that it was going to adopt two decisions from the Attorney General relating to good moral character. These decisions had already been announced previously, but with USCIS formally adopting them they will become directly applicable to benefits such as naturalization for people applying for US Citizenship.

Specifically, USCIS adopted the decisions Matter of Castillo-Perez and Matter of Thomas and Thompson. Those decisions relate to DWI or DUI convictions and how they affect good moral character determinations, as well as the length of a criminal sentence for immigration purposes. It’s especially important for individuals with prior convictions of any kind to discuss their case with an immigration attorney before filing for any benefits. Convictions involving alcohol are mentioned directly, but they are not the only type that will cause problems for citizenship or other benefits.

Read the full announcement below:

WASHINGTON—U.S. Citizenship and Immigration Services today announced new policy guidance implementing two decisions from the attorney general regarding how two or more DUI convictions affect good moral character (GMC) requirements and how post-sentencing changes to criminal sentences affect convictions and sentences for immigration purposes.

On Oct. 25, the attorney general decided in Matter of Castillo-Perez that two or more DUI convictions during the statutory period could affect an applicant’s good moral character determination. When applying for an immigration benefit for which GMC is required, applicants with two or more DUI convictions may be able to overcome this presumption by presenting evidence that they had good moral character even during the period within which they committed the DUI offenses. The term DUI includes all state and federal impaired-driving offenses, including driving while intoxicated, operating under the influence, and other offenses that make it unlawful for an individual to operate a motor vehicle while impaired.

Also on Oct. 25, the attorney general decided in Matter of Thomas and Thompson that the definition of “term of imprisonment or a sentence” generally refers to an alien’s original criminal sentence, without regard to post-sentencing changes. Post-sentencing orders that change a criminal alien’s original sentence will only be relevant for immigration purposes if they are based on a procedural or substantive defect in the underlying criminal proceeding.

“In response to two decisions from the attorney general, USCIS has updated policy guidance on establishing good moral character for immigration purposes,” said USCIS Deputy Director Mark Koumans. “As the attorney general directed, this guidance enhances public safety by ensuring that USCIS adjudicators consider driving under the influence convictions with the appropriate standard of scrutiny.”

Under U.S. immigration law, there are consequences for criminal convictions and sentences that could render applicants inadmissible, deportable, or ineligible for an immigration benefit. Also, certain immigration benefits require an applicant to demonstrate that an alien has GMC to be eligible for the benefit. For example, naturalization applicants must demonstrate GMC. To find more information about this update, view the USCIS Policy Manual.

Recent USCIS Changes to Special Immigrant Juvenile Status

Last updated on January 5, 2020

On October 15, 2019, USCIS issued a notice of changes to the requirements for Special Immigrant Juveniles. This announcement follows shortly after USCIS adopted three decisions that will impact pending cases for anyone seeking Special Immigrant Juvenile, also known as SIJ classification. Those adopted decisions are:

Read the full announcement below.

USCIS Clarifies Special Immigrant Juvenile Classification to Better Ensure Victims of Abuse, Neglect and Abandonment Receive Protection

Release Date: Oct. 15, 2019
WASHINGTON—U.S. Citizenship and Immigration Services today clarified requirements regarding the Special Immigrant Juvenile (SIJ) classification. To ensure consistency surrounding this classification, USCIS is issuing three Administrative Appeals Office (AAO) adopted decisions. Through these adopted decisions, USCIS clarifies that it requires evidence of a court’s intervention to provide relief from abuse, neglect or abandonment beyond a statement that the juvenile is dependent on the court. This level of intervention from the court serves as an indicator as to whether the SIJ classification is sought for its intended purpose of relief from parental abuse, neglect or abandonment and not primarily to obtain an immigration benefit. Many juvenile court orders already contain this level of detail.

USCIS also clarifies that it will consider qualifying orders from state courts, provided the petitioner met the applicable definition of a juvenile under state law when the order was issued and the court determined the juvenile was subject to parental abuse, neglect, abandonment or similar maltreatment. These clarifications will provide guidance to adjudicators in evaluating juvenile court orders issued under different state laws in the adjudication of petitions for federal SIJ classification.

Additionally, USCIS is no longer requiring evidence that a state court had the authority to place a petitioner in the custody of an unfit parent in order to make a qualifying determination regarding parental reunification for purposes of SIJ classification.“Through these clarifications, USCIS adjudicators will help ensure those who are victims and truly need protection from abuse, neglect, abandonment or a similar basis under state law receive the assistance they need,” said USCIS Acting Director Ken Cuccinelli. “These new clarifications will better protect deserving juvenile immigrants while also promoting program integrity and upholding our laws. Congress needs to address loopholes in the SIJ program to better protect children.”

USCIS will also reopen the comment period for the proposed rule, Special Immigrant Juvenile Petitions, for 30 days to gather more information so it can clarify SIJ requirements by rulemaking. USCIS will accept comments through Nov. 15, 2019. In recent years, the SIJ classification has increasingly been sought by juvenile and young adult immigrants solely for the purposes of obtaining lawful immigration status and not due to abuse, neglect or abandonment by their parents. Through this rulemaking, USCIS seeks to realign the SIJ classification with congressional intent, implement statutorily mandated changes and address shortcomings in the regulations that threaten the integrity of the SIJ program.

USCIS acknowledges the potential for reliance interests; however, these three adopted AAO decisions do not create legally binding rights or change substantive requirements. They will go into effect on Oct. 15, 2019 and will apply to pending and future petitions. Related materials are available to the public: the three adopted AAO decisions, and the Special Immigrant Juvenile Petitions proposed rule, 76 FR 54978 (PDF).The SIJ classification was established by Congress in 1990 to provide a pathway to legal status for children in the U.S. foster care system who required court intervention to protect them from parental abuse, abandonment or neglect. While there is no limit on the number of SIJ petitions that USCIS is able to approve each year, there is a limit to the number of SIJ-based adjustments that USCIS may approve due to visa availability. For the past several years, USCIS has granted approximately 5,000 SIJ adjustments each year.

https://www.uscis.gov/news/uscis-clarifies-special-immigrant-juvenile-classification-better-ensure-victims-abuse-neglect-and-abandonment-receive-protection