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USCIS Issues Guidance on “Terms of Imprisonment or a Sentence” for Good Moral Character Determinations

By December 17, 2019April 1st, 2021Immigration, Immigration Law Changes &  New Law
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One of the requirements for naturalization be become an U.S. citizen or other immigration benefits is good moral character (GMC). An applicant for naturalization must show that he or she has been, and continues to be, a person of good moral character. In general, the applicant must show GMC during the five-year period immediately preceding his or her application for naturalization and up to the time of the Oath of Allegiance. Conduct prior to the five-year period may also impact whether the applicant meets the requirement.

On October 25, 2019, the Attorney General decided in the Matter of Thomas and Thompson that the definition of “term of imprisonment or a sentence” 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. This is important to proving good moral character as terms of imprisonment for aggravated felony offenses is one of the potential permanent bars to good moral character.

In 1996, Congress expanded the definition and type of offense considered an “aggravated felony” in the immigration context. An applicant who has been convicted of an “aggravated felony” on or after November 29, 1990, is permanently barred from establishing GMC for naturalization.

Some offenses require a minimum term of imprisonment of one year to qualify as an aggravated felony in the immigration context. The term of imprisonment is the period of confinement ordered by the court regardless of whether the court suspended the sentence. For example, an offense involving theft or a crime of violence is considered an aggravated felony if the term of imprisonment ordered by the court is one year or more, even if the court suspended the entire sentence.

Aggravated Felonies in the immigration context include the following offenses:

  • Murder, Rape, or Sexual Abuse of a Minor
  • Illicit Trafficking in Controlled Substance
  • Illicit Trafficking in Firearms or Destructive Devices
  • Money Laundering Offenses (over $10,000)
  • Explosive Materials and Firearms Offenses
  • Crime of Violence (imprisonment term of at least 1 yr)
  • Theft Offense (imprisonment term of at least 1 yr)
  • Demand for or Receipt of Ransom
  • Child Pornography Offense
  • Racketeering, Gambling (imprisonment term of at least 1 yr)
  • Prostitution Offenses (managing, transporting, trafficking)
  • Gathering or Transmitting Classified Information
  • Fraud or Deceit Offenses or Tax Evasion (over $10,000)
  • Alien Smuggling
  • Illegal Entry or Reentry by Removed Aggravated Felon
  • Passport, Document Fraud (imprisonment term of at least 1 yr)
  • Failure to Appear Sentence (offense punishable by at least 5 yrs)
  • Bribery, Counterfeiting, Forgery, or Trafficking in Vehicles
  • Obstruction of Justice, Perjury, Bribery of Witness
  • Failure to Appear to Court (offense punishable by at least 2 yrs)
  • Attempt or Conspiracy to Commit an Aggravated Felony

The acts that are listed above are just examples of unlawful acts that may be considered. USCIS officers adjudicate applications on a case-by-case basis to determine whether an unlawful act can adversely reflect on an applicant’s good moral character. This is a complicated issue as different states have different laws that vary as to how they classy and assign sentencing to crimes. If you believe you have committed an act that can impact your good moral character, please contact a qualified immigration lawyer immediately to discuss your options.

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