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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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.

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  1. What if they vape?

    1. What if they blow on a cheap plastic flute w/o the permission of a degreed, certified, and licensed Doctor of Doctorology?

      To find precise details on what NOT to do, to avoid the flute police, please see http://www.churchofsqrls.com/DONT_DO_THIS/ … This has been a pubic service, courtesy of the Church of SQRLS!

      (BE SAFE out there, people!!!)

      1. MIKEY HIHN LADIES AND GENTLEMEN!

        WHAT A KNEE SLAPPER!

  2. This is more proof that the only sensible and humane immigration policy is 100% open borders. Fortunately the Democrats have spent the Drumpf years moving toward precisely that position.

    #VoteBlueNoMatterWho
    #(ExceptTulsiGabbard)

    1. Nothing has done more to diminish the quality of life for the United States middle class through higher housing (land) costs, greater competition for jobs, lower wages, higher taxes to pay for greater poverty, mortgage fraud, medicare fraud, tax fraud, identity theft, other crime, higher taxes to pay for indigent healthcare (hospital closings), higher taxes for cost of public schools, price of college, degradation of the military, depletion of resources, paving of farms,burden on the taxpayer and overall congestion since 1965 than the INCREASE of POPULATION and change in its nature (more poor, more criminals, e pluribus multum).

  3. If they’ve already been convicted of serious crimes while living here illegally, then why is allowing them to stay even being discussed? Allowing any discretion at that point is very generous.

    1. Generally, I would agree. But since it can takes years to get to the point where one feels they are ready to apply for citizenship, I am thinking that even a fairly “serious” crime (whatever that might entail), which happened six or seven years before, and which is not part of a repeated pattern, I think some leeway could be granted.

      1. Would you grant them all rights even voting? Gun ownership? Because not even current citizens get that deal.

        1. Gun ownership, yes, because self-defense is a natural right (not given by government). Voting, no, I don’t think you have a natural right to coerce your neighbor.

        2. Jesse, I have never heard of someone losing their 2nd amendment rights because of, for instance, a DUI conviction. As a general rule (on a case-by-case basis) I tend to think that persons convicted of a crime, who have paid their debt to society, should have their rights restored. If someone is too dangerous to be permitted to vote, or own a firearm, aren’t they probably too dangerous to let out on the street in the first place?

      2. Why let an ex criminal immigrate when there are ten law abiding applicants waiting?

        1. But my FREEDUM OF ASS-SOCIATION and stuff! You’re taking away all my liburty! /jeffy

          1. He sure loves him some child molesters coming here from other countries.

          2. Since you evidently don’t believe in freedom of association, then why don’t you Bake That Cake, Bigot.

            You are trying to have it both ways. You want to scream “Help Help I’m Being Repressed” when the gays come and want you to bake a cake that you don’t agree with. But when it comes to YOU acknowledging the liberty of OTHERS to associate with whom they choose, you don’t seem to mind trampling all over that right.

            So freedom of association is good when I benefit from it, but freedom of association is mocked when it comes to others benefitting from it. Got it.

            1. Forcing your neighbors to associate with drug kingpins is not freedom.

              1. Forcing your neighbors to associate with witches is not freedom.
                Forcing your neighbors to associate with infidels is not freedom.
                Forcing your neighbors to associate with jews is not freedom.
                Forcing your neighbors to associate with barbarians is not freedom.
                Forcing your neighbors to associate with heathens is not freedom.
                Forcing your neighbors to associate with unbelievers is not freedom.
                Forcing your neighbors to associate with “the yellow peril” is not freedom.
                Forcing your neighbors to associate with negroids is not freedom.
                Forcing your neighbors to associate with gays is not freedom. Forcing your neighbors to associate with illegal subhumans with is not freedom.

                New day, new scapegoats. PROTECT my entire galaxy from my scapegoats! News at 11:00!

            2. Who is it exactly that you wish to associate with but are being prevented by our government?

        2. NOYB2:
          To clarify, I was referring to those folks who have been in the country for a time… say for years, not to recent immigrants.

  4. “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.”

    I don’t see officials using their discretion as a fundamentally bad thing. If anything is fundamentally bad, it’s treating individuals the same–regardless of their particular circumstances.

    This seems to be clear to every Reason writer when they’re writing about mandatory sentencing guidelines. Why do all those arguments go out the window when we’re talking about immigration?

    1. Was not it reason the last few weeks promoting the bureaucracy in decision making towards Ukraine…

    2. The thing that can be bad about it is that it is contrary to the rule of law to have federal bureaucrats able to make things up on the spot. Of course, there will always be some of that. Reality isn’t mathematics and interpretation will always have to exist. That said, some things are given much more “interpretation leeway” than others. I am not sure that this particular example is bad.

      However, to give a different example, I do think that the fact that a CBP officer can turn someone with a valid visa away without having to demonstrate some kind of wrongdoing is ridiculous.

      1. Well if the assumption is that everyone facing any kind of accusation is automatically denied, then discretion is necessarily pro-immigrant. Kind of hard to argue that it’s not fair for you to get shafted while another similarly situated dude gets through if the alternative is that everyone just gets shafted. Hard for those who don’t buy in to the nonsense that is “relative deprivation” anyway.

    3. No, let’s get all this subjectivity out of the process.

      With an arrest or conviction, they’re out out out! Starting with violation of US immigration law.

      You’re welcome, ENB!

  5. erasing the imaginary lines makes Mexico and America better. permit free access to jobs and free expansion.

    1. Yes, let’s conquer Mexico!

      1. we can be nice about it

        1. I thought libertarians were all about self determination and isolation. How does taking over mexico support those two things?

          Is libertarianism now about building a global empire?

  6. being a “habitual drunkard.”

    They’ll do anything to keep more libertarians from coming here.

    1. one man’s habit is another’s daily affirmation.

  7. I’m all for excluding immigrants for criminal activity, adultery, spousal abuse, etc. And while Brown correctly doesn’t like the fact that agents have “discretion” about this (and I agree), the correct response is to get the laws changed.

    What Nolan doesn’t say, is that Trump has been trying to get the immigration laws changed (IMHO to get better immigrants), but the Democrats walked out of negotiations and refuse to negotiate, with Trump or the GOP. So if Trump uses the authority Congress passed on to the executive branch in the belief that they’d have big government presidents like Clinton, to change the rules to pressure Congress to negotiate, I’m all for it. I’d bet Trump would accept more immigration in return for laws that get us better immigrants than we’re getting now. We’ll never know unless we get the Democrats to act and negotiate. Nolan could have made that appeal, but didn’t.

    1. If we are excluding immigrants for adultery and drug violations, the last President we had who was of high enough moral standards to be allowed to immigrate would have been Jimmy Carter.

      1. Are you under the impression that you made some kind of point?

  8. Seeing as reason just had an article arguing fraud should be allowed for immigration, it would probably be helpful for reason to define what limits they actually do support. Likewise what caps? 1 million isnt enough? This is especially true since Reason seems to support the removal of no public charge requirements. Is the stance really no borders free welfare?

    1. Yes, their stance really is no borders.

    2. I would guess that they don’t support a cap. I don’t. It’s silly to think the state can decide how many immigrants there should be any more than it can decide what the price of oil should be.

      The welfare thing is a different story. What I don’t understand is why it is so difficult to simply exclude noncitizens from welfare*. It speaks to the extreme dysfunction of the welfare state that the solution is literally to try to build a 2,000 mile long wall instead of making sure that the recipients of welfare are actually who they say they are and are qualified.

      * SLD that there should be no welfare state, but not expanding it is good too.

      1. “It’s silly to think the state can decide how many immigrants there should be”

        No, it’s really not.
        It’s silly to think unlimited immigration is in any way reasonable.

        1. You can make a case that unlimited immigration is the principled and ethically correct position. In today’s world, though, it would also be national suicide.

          RUK: That was the equation! Existence! Survival must cancel out programming.
          KIRK: That’s it, Ruk! Logic! You can’t protect someone who’s trying to destroy you!

        2. Then why not put the state in charge of all sorts of central planning schemes?

          If the state is so good at deciding how many immigrants there ought to be, then why not put the state in charge of deciding how much health care an individual ought to have? Hmm?

          1. Because that would be a bad idea. Have any more insightful questions?

    3. Which article was this where Reason argued that fraud should be allowed for immigration?

      1. Probably the one where they bitched about the guy who used multiple aliases and lied on his immigration form got deported, you pedantic presumed child molester

        1. “reason just had an article arguing fraud should be allowed for immigration”

          Not an accurate summary of the position taken in the article. Dalma actually argued that a guy who has been living in the U.S. for three decades, with an American wife and children, should not be subjected to denaturalization because he didn’t disclose that he was rejected for an asylum application under a different name. Kinda glossed over the whole part about the guy having been living here for 30 years with no problems.

          1. Some of us don’t see living here for 30 years through fraud as “no problems”.

            1. Do you see, though, how others might see your position as extremist?

              1. Yes, if they’re sophomores who are willing to follow a principle over a cliff.

                1. So, anyone who sees your position as extreme does so because they are an extremist themselves? Are there no moderates?

                  1. Yes, anyone who advocates uncontrolled immigration is an extremist. Anyone who agrees with me that immigration must be controlled and limited would not see my positions as extreme.

                    1. I gotta think there have to be some people of a moderate persuasion who would agree with you in general that immigration must be controlled and limited, but see living in the U.S. for thirty years, raising a family, while staying out of trouble as a reasonable bar for being past the risk of being denaturalized.

                    2. I’ve got to think that people of a moderate persuasion would agree that getting away with a fraud for a long time makes it worse, not better.

              2. lol – so you’re point is that lying about your name and background isn’t fraud. Could you please dune what fraud is to you?

                1. Dune *define

                2. That’s not the argument. I’ll concede that he might have committed fraud.

                  The argument is that we could also take into consideration that the guy has been in the U.S. for thirty years, married an American woman and raised a family, stayed out of trouble. Or putting it another way, kicking someone out of the country when they have been here so long their ties are stronger here than where they came from is cruel and unnecessary.

                  One of the Western world’s smartest legal inventions was the statute of limitations. The idea of codifying that at some point, for all but the most heinous of crimes, the past is past and should be let go is brilliant.

                  1. But it was never “past”. It was an ongoing fraud.

        2. It was actually Shikas last article where she said it was fine students were joining fake universities to stay in country for multiple lottery attempts.

          1. This: https://reason.com/2019/12/12/ice-used-dirty-tactics-to-lure-foreign-students-with-a-fake-university/?amp

            Tells a way more complex story than “fraud should be allowed for immigration?” For one thing, it was the immigration authorities perpetrating a lot of the fraud.

            1. It was a sting operation.

    4. I believe their stance is “open borders, no welfare (for anyone)”

      1. So, they can call us back after they’re gotten rid of welfare.

      2. Reason allows individual writers to have views across the libertarian spectrum of thought rather than taking a rigid position on all political questions.

        Having said that, their position on immigration ranges from open borders to reasonable, humane immigration laws; and their position on welfare ranges from none to reasonable, humane levels of welfare.

        1. But those positions can’t be mix-and-match. The only position on welfare consistent with open borders is absolutely none for immigrants.

  9. Five people to cut one ribbon. Are they from the Department of Redundancy Department? Where is OSHA to enforce safe scissoring guidelines?

    1. Methinks the lesbian community will have something to say about scissoring requirements.

  10. ”This not only violates a basic sense of fairness”

    Life isn’t fair. Neither is immigration. And we as a nation have no obligation whatsoever to make immigration fair.

  11. If someone has a history of acting like an asshole in their home country chances are they’ll act like one here. And if they’ve acted like one here, then they can go home and act that way there instead.

    Either way, if you have a history of acting like an asshole and are not a citizen of the US then you can f’off somewhere else.

    Articles like this do more to hurt the libertarian cause than anything else. How anyone can argue that ANY society needs more criminals is insane.

    1. How anyone can argue that ANY society needs more criminals is insane.

      Don’t libertarians regularly cheer on tax evasion?

      1. No. They argue for less taxes, not to break the law.

        1. What’s that line about “stated preferences” and “revealed preferences”?

          1. “Stated preferences are those someone really holds; ‘revealed preferences’ and a fantasy on the part of someone else.”—Vernon Depner

            That one?

    2. Yes, however, considering adultery as not being of good moral character is imposing traditional Judeo-Christian values of morality in a supposedly secular country. And there’s a long libertarian tradition of not considering someone of poor moral character for marijuana consumption.

      1. It’s easy to make a case against adultery without mentioning religion.

        1. Perhaps, but not all married couples believe adultery is immoral. For the state to take the position that an adulterer is not morally acceptable as an immigrant is to assume they know better than the actual people in the marriage. It’s not like a divorce case where one party to the marriage is arguing the other broke their vows.

          1. but not all married couples believe adultery is immoral.

            LOL. Do you actually know any married couples?

            1. Are we now going to pretend that swingers and open relationships aren’t a thing?

              1. Are we going to pretend they’re more than a tiny fringe of weirdos?

      2. So in a secular country, breaking sacred vows or a marriage contract is ok?

        If those values are exclusive to Jews and Christians, then we shouldn’t let anyone else in.

        1. So in a secular country, breaking sacred vows or a marriage contract is ok?

          Depends on what you mean by “okay”.

          As a country, we moved away from making those crimes decades and decades ago. It’s a personal matter, not a government matter.

          Does that make it morally “okay”? Maybe, maybe not. But the government shouldn’t be looking to punish Donald Trump for cheating on his wife with a porn star. His wife can decide, for herself, whether or not she’s going to try to punish him.

  12. “‘Good Moral Character’.”
    WTF is that?
    Talk about vague!

    1. Not necessarily.

  13. That poll question itself is inflammatory. The very fact that people are asked the question is suggestive. Why raise it as a possibility? I doubt many people are thinking along those lines, but if you ask it of them, the very act of asking will get a lot of them to say yes. When a poll taker asks for an opinion about something, that legitimizes whatever it is. I mean, come on, somebody important is spending money to find out, so that must means it’s being taken seriously, so if I’m a serious person I must take it seriously…this very natural thought process alone biases the answer to above 50%. i read from this https://www.fappin.com/

  14. ??? I mean, I agree; but it’s pretty rich coming from reason, seeing as *bad moral character* is the grounds the dems are using for impeachment, which reason supports. Hypocritical much?

    1. Actually, the impeachment articles don’t say a word about bad moral characters. The first article claims that Trump committed “high crimes and misdemeanors” and “abuse of power”.

      The articles of impeachment can be read here:

      https://www.npr.org/2019/12/10/786579846/read-articles-of-impeachment-against-president-trump

      Also, Reason has not supported impeachment. At most, some Reason writers have written that they find the evidence presented in the House hearings credibly point to abuse of power. I don’t think there has been one endorsement of impeachment from Reason. Nick Gillespie has expressed skepticism that it is a good idea on the weekly Reason podcast.

  15. 5 people needed to cut one ribbon.

    That’s government for ya!

  16. That list is BS.

  17. Federal immigration agents judging other people’s moral character. What a joke this country’s become.

    1. Remember that the alternatives are simply letting everyone in to stay, or simply deporting everyone who didn’t follow the rules. Allowing discretion is being generous to immigrants.

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