Chapter 12: Good moral character (GMC) - Section 101(f) of the Act.

a. A showing of good moral character is required for several forms of relief, including voluntary departure, suspension of deportation, and registry.

b. A finding of GMC for a given period is not barred merely because of several arrests during that period which resulted in subsequent release without conviction. Matter of V-I-, 3 I&N Dec. 571 (BIA 1949).

c. A conviction which forms a basis for a finding that an alien lacks GMC need not be the basis upon which the alien is found deportable. Matter of Correa-Garces, 20 I&N Dec. 451 (BIA 1992).

d. Section 101(f) (as amended by Section 822 of the Violence Against Women and Department of Justice Reauthorization Act of 2005) provides that no person shall be found to be a person of good moral character who, during the period for which GMC is required, was:

i. A habitual drunkard [INA § 101(f)(1)];

ii. Whether inadmissible or not, persons described in the following paragraphs of Section 212(a):

(1) 212(a)(10)(A) - miscellaneous (including polygamists);

(2) 212(a)(2)(D) - prostitutes and commercialized vice;

(3) 212(a)(2)(A) - persons convicted of or admitting a crime involving moral turpitude and persons convicted of any law or regulation relating to a controlled substance.

(a) The phrase “whether inadmissible or not” which appears in the first part of Section 101(f)(3) does not prevent the application of the “petty offense” exception at current Section 212(a)(2)(A)(ii)(II) of the Act. Matter of M-, 7 I&N Dec. l47 (BIA l956).

(b) Persons convicted of a single offense of simple possession of 30 grams or less of marijuana are not precluded from establishing good moral character. INA § 101(f)(3).

(4) 212(a)(2)(B) - persons convicted of two or more offenses;

(a) Other than purely political offenses;

(b) Regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct;

(c) Regardless of whether the offenses involved moral turpitude;

(d) BUT, the aggregate sentences to confinement actually imposed must have been 5 years or more.

(5) 212(a)(2)(C) - an alien who the consular or immigration officer knows or has reason to believe is or has been an illicit trafficker in controlled substances or has been a knowing assister, abettor, conspirator, or colluder with others in the illicit trafficking in controlled substances.

(6) 212(6)(E) - alien smugglers.

iii. A person whose income is derived principally from illegal gambling activities [INA § 101(f)(4)];

iv. A person who has been convicted of 2 or more gambling offenses committed during the statutory period [INA § 101(f)(5)];

v. A person who has given false testimony for the purpose of obtaining any benefit under the Act [INA § 101(f)(6)];

(1) In order to constitute false testimony under Section 101(f)(6) of the Act, the testimony must be under oath. Matter of G-, 6 I&N Dec. 208 (BIA l954).

(2) False statements in a written application, whether or not under oath, do not constitute false “testimony.” The word “testimony” refers solely to oral utterances of witnesses under oath. Matter of L-D-E, 8 I&N Dec. 399 (BIA l959.

(3) False information given under oath in a question-and-answer statement before an INS officer made in connection with a written application is “testimony.” Matter of Ngan, 10 I&N Dec. 725 (BIA l964); Matter of G-L-T-, 8 I&N Dec. 403 (BIA l959).

(4) In order to come within the prohibition of Section 101(f)(6), it is not necessary that false testimony be given in order to obtain a benefit under the Act for oneself. False testimony given in connection with a visa petition filed in another's behalf will preclude a showing of GMC. The benefit sought by the petitioner is to have the beneficiary join him in the U.S. Matter of Ngan, 10 I&N Dec. 725 (BIA l964); Matter of W-J-W-, 7 I&N Dec. 706 (BIA l958).

(5) It is not a requirement of the statute that a benefit be obtained, only that the false testimony be given for the purpose of obtaining a benefit. Matter of L-D-E-, 8 I&N Dec. 399 (BIA l959).

(6) If an alien in an immigration proceeding testifies falsely under oath as to a material fact but voluntarily and without prior exposure of his false testimony comes forward and corrects his testimony, he has not committed perjury and an exclusion charge based on the commission of perjury is not sustained. Matter of R-R-, 3 I&N Dec. 823 (BIA l949). Following the reasoning of this case, the BIA has held that an alien is not barred from establishing GMC if he has made a voluntary and timely retraction of attempted false testimony. Matter of M-, 9 I&N Dec. 118 (BIA l960). The recantation must be voluntary and made without delay in order for the false statement and its withdrawal to be found to constitute one inseparable incident out of which an intention to deceive cannot rightly be drawn. Matter of Namio, l4 I&N Dec. 4l2 (BIA l973).

(7) The Ninth Circuit has held that such oral statements must be made “to a court or tribunal” in order to constitute false testimony. Phinpathya v. INS, 673 F.2d 1013 (9th Cir. 1981), rev’d on other grounds, 464 U.S. 183 (1984).

(8) The 9th Circuit has not defined what constitutes “a court or tribunal.” However, the Ninth Circuit has held that false statements made under oath during a naturalization examination constitute false testimony within the meaning of Section 101(f)(6) of the Act. Bernal v. INS, 154 F.3d 1020 (9th Cir. 1998).

(9) False oral statements under oath to an asylum officer can constitute false testimony as defined by the Ninth Circuit in Phinpathya v. INS, 673 F.2d 1013 (9th Cir. 1981), rev’d on other grounds, 464 U.S. 183 (1984); Matter of R-S-J-, 22 I&N Dec. 863 (BIA 1999).

(10) In a denaturalization case, the Supreme Court has held that there is no requirement that false testimony under Section 101(f)(6) must have been material (as opposed to visa fraud or misrepresentations under former Section 212(a)(19) [now Section 212(a)(6)(C)(i)] which must be material). Kungys v. U.S., 485 U.S. 759 (1988).

vi. A person who, during the period, was confined as a result of conviction to a penal institution for an aggregate period of 180 days or more, regardless of whether the offense was committed during the period [INA § 101(f)(7)];

(1) Section 101(f)(7) of the Act is concerned with “persons” not “aliens.” Therefore an individual who falls within the terms of Section 101(f)(7) of the Act is precluded from establishing GMC regardless of whether he was a citizen or an alien during the period of confinement to the penal institution. Matter of B-, 7 I&N Dec. 405 (BIA 1957).

(2) An alien whose conviction resulted only in a sentence to a period of probation with no incarceration is not, as a matter of law, precluded from a showing of GMC by Section 101(f)(7). Matter of Gantus-Bobadilla, 13 I&N Dec. 777 (BIA 1971), overruled on other grounds by Matter of Franklin, 20 I&N Dec. 867 (BIA 1994).

(3) Section 101(f)(7) of the Act makes no exception for a prison term resulting from violation of probation rather than from an original sentence to incarceration and an alien so confined for an aggregate period of 180 days or more within the statutory period is barred from establishing GMC. Matter of Piroglu, 17 I&N Dec. 578 (BIA 1980).

(4) Since pre-sentence confinement is credited in determining the date of release from custody (under Section 2900.5 of the California Penal Code), such pre-sentence confinement is counted in determining whether a respondent has been confined as a result of conviction for an aggregate period of 180 days. Matter of Valdovinos, 18 I&N Dec. 343 (BIA 1982).

vii. A person who has been convicted of an aggravated felony at any time (even outside the statutory period) [INA § 101(f)(8)];

(1) Prior to an amendment to the Act, effective on November 29, 1990, Section 101(f)(8) made a showing of GMC unavailable to anyone convicted of the crime of murder, even if the conviction took place outside the statutory period.

(2) The amendment to include aggravated felonies applies to convictions occurring on or after November 29, 1990.

(3) Following the amendment, it was doubtful whether persons convicted of murder before November 29, 1990 were able to demonstrate GMC. As part of the Miscellaneous Technical Immigration and Naturalization Amendments in 1991, Congress again amended Section 101(f)(8) to provide that a person convicted of murder cannot demonstrate GMC regardless of the date of the conviction.

(4) The BIA has acknowledged these amendments and holds that an alien convicted of murder, regardless of the date of the conviction, is forever precluded from establishing GMC under Section 101(f)(8) of the Act. Matter of Reyes, 20 I&N Dec. 789 (BIA 1994). An alien convicted of an aggravated felony other than murder is forever barred from establishing GMC under Section 101 (f)(8) of the Act if the aggravated felony conviction occurred on or after November 29, 1990. Id.

(a) The BIA previously held that a conviction for attempted murder was not a permanent bar to a showing of GMC and only barred a showing of GMC under Section 101(f)(3) if the offense was committed within the statutory period for relief. Matter of Awaijane, 14 I&N Dec. 117 (BIA 1972). The alien's sentence was commuted to less than 180 days, so Section 101(f)(7) was not an issue.

(b) Since the definition of “aggravated felony” includes the offense of murder and any attempt to commit an enumerated offense, an alien convicted of attempted murder after November 29, 1990 should be permanently barred from demonstrating GMC as an alien convicted of an aggravated felony.

e. Section 101(f) concludes as follows: “The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is not or was not of good moral character.”