Good Moral Character

June 16, 2017 12:15 pm
by David Jakeman

The issue of “good moral character” comes up frequently in immigration matters.  It is a prerequisite for various types of removal relief such as voluntary departure and cancellation of removal for non-permanent residents.  It is also a prerequisite for naturalization.  Obviously, better understanding this concept can be crucial to winning your immigration case.  If you have questions regarding good moral character or any other immigration issue, please contact the experienced immigration attorneys at Beacon Immigration.

How have the courts treated good moral character?

Defining good moral character has always been a challenge for the courts.  Indeed, in Posusta v. United States, Judge Learned Hand of the United States Court of Appeals wrote that “much has been written as to the scope of that phrase, and, as was inevitable, there has been disagreement as to its meaning.”  He further explained that “it is a test incapable of exact definition; the best we can do is to improvise the response that the ‘ordinary’ man or woman would make, if the question were put whether the conduct was consistent with a ‘good moral character.’”  Therefore, courts have generally looked to community standards in the relevant region to make this determination.

In 1952, Congress stepped in to provide some legislative guidance.  However, even if the statutory language is satisfied, a finding of good moral character is also a matter of discretion left up to the immigration authorities.  Thus, an immigrant must be eligible for good moral character under both the statutory provisions and a discretionary finding.

Statutory treatment of good moral character

INA § 101(f) provide some statutory guidance in deciphering good moral character.  It is important to note that this section does not define what good moral character is.  Rather, it defines what it is not.  Specifically, conduct under this section that precludes a finding of good moral character includes

  • A habitual drunkard
  • A person convicted of or admitting to a crime of moral turpitude; a person involved with prostitution, smuggling of a person, or drug trafficking, except for a single conviction involving possession of no more than 30 grams of marijuana; a polygamist; or a non-citizen who was previously removed
  • One whose income is principally derived from illegal gambling activities
  • One who has given false testimony for the purpose of obtaining any benefits under this Act
  • One who has been convicted and detained for at least 180 days were committed within this period
  • One who has committed an aggravated felony

Discretionary factors

Even if the immigrant meets the test under the statute, a court may still conclude, within its discretion, that the immigrant lacks good moral character.  Factors that courts have looked to in the past include

  • Past convictions, even if they are currently on appeal
  • Past expunged convictions
  • The immigrant’s general conduct, including the method of entering the country
  • Possession of false documents
  • Knowingly providing fraudulent information on an income tax return

It may seem unfair that a court can consider things like expunged convictions or convictions on appeal.  It is believed they may offer some insight into the immigrant’s proclivities and current character regarding issues such as rehabilitation.  Fortunately, the court is also bound to consider positive factors that enhance the immigrant’s good moral character.

A future blog post will take a closer look into how an immigrant can prove good moral character.