Immigration

'Good Moral Character' Clause for Immigrants Gives Too Much Discretion to Federal Agents

Adultery and prostitution outweigh spousal and child abuse in USCIS guidelines, but ultimately the call is made on a case-by-case basis.

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zumaamericaseighteen740047 | Elizabeth Flores/ZUMA Press/Newscom
(Elizabeth Flores/ZUMA Press/Newscom)

Giving individual immigration officials more discretion over what counts as "good moral character" will only complicate an already flawed system for determining who is worthy of becoming a U.S. citizen. Yet that's exactly what U.S. Citizenship and Immigration Services (USCIS) is encouraging in its updated guidance on naturalization.

In a December 10 policy alert, USCIS emphasized that officers should "determine whether an 'unlawful act' is a conditional bar [to good moral character] on a case-by-case basis."

As part of the naturalization process, all potential citizens are required to prove "good moral character." One of the things that can keep an applicant from meeting this requirement is being accused—not convicted, not charged, merely accused—of unlawful acts.

The agency's examples of unlawful acts include making a false claim to U.S. citizenship, failure to pay taxes, sexual assault, bank fraud, bail jumping, unlawfully registering to vote, and several other things.

But while an "unlawful act" is a sufficient condition for USCIS saying someone lacks good moral character, it is not a necessary one. The Immigration and Nationality Act "also allows a finding that 'for other reasons' a person lacks good moral character, even if none of the specific statutory bars applies," explains the USCIS policy manual.

Examples of "other reasons" why someone may be judged to lack good moral character include having two or more convictions for driving under the influence, failing to pay sufficient child support, and committing adultery.

All of these things fall under what USCIS calls "conditional bars" to establishing good moral character and becoming a U.S. citizen. Other conditional bars include:

  • engaging in or even attempting to engage in prostitution;
  • violating any federal, state, or local law against controlled substances or drug paraphernalia (with the exception of one single offense of marijuana possession of 30 grams or less);
  • incarceration for 180 days or more for any reason "except political offense";
  • making a living from illegal gambling;
  • practicing polygamy; and
  • being a "habitual drunkard."

Leaving aside for now whether certain criminal offenses (such as drug possession or prostitution) should be grounds for deportation and denied citizenship, determining such things based on criminal convictions would at least provide a steady and easy-to-comprehend standard. But as it stands, individual immigration officials can decide that one applicant can stay even with a conviction, while another applicant may be barred based on a mere accusation of criminality, and another applicant could get the boot with no allegations of criminal activity at all.

This not only violates a basic sense of fairness, but also leaves a lot of room for corruption and extortion by USCIS agents and even more room for them to impose their own personal visions of morality. Already, asking immigration authorities to set different levels of moral culpability for different activities has resulted in some questionable determinations.

For instance, when it comes to prostitution, people who solicit sex (i.e., the customers) may be given more lenience than sex workers are.

The Board of Immigration Appeals has "determined that a single act of soliciting prostitution on one's own behalf is not the same as procurement," notes USCIS. However, engaging in prostitution, procurement of prostitution, or receiving proceeds from prostitution mean that "an applicant may not establish [good moral character]."

For instance, having an extramarital affair is offered as an absolute no when it comes to establishing good moral character while beating one's spouse or children is not.

"An applicant who has an extramarital affair during the statutory period that tended to destroy an existing marriage is precluded from establishing [good moral character]," states USCIS with no caveats.

However, "offenses such as spousal or child abuse" only "may rise to the level" required to block naturalization and "an offense involving a domestic simple assault generally does not," states USCIS. (Emphasis mine.)

In addition, "an offense relating to indecent exposure or abandonment of a minor child may or may not" and having "intentional sexual contact with a child" will only "in general" mean a finding of bad morals. (Emphasis mine.)

Better immigration policy would set hard rules for statutes that can't be broken if you want to become a citizen (preferably keeping victimless crimes and small infractions out of it) while leaving the vague, subjective "moral character" clauses behind.