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