Jonas was petitioned by a U.S. employer for an H1B (a professional working visa) to work as a software engineer. He was petitioned in 2005 and his working visa was valid until 2008. A year after his arrival, Jonas was arrested while traveling domestically from Los Angeles to New York. A TSA agent discovered methamphetamine and drug paraphernalia in his luggage. Jonas was taken into custody and charged criminally with illegal possession of a controlled substance.
During his trial, Jonas’defense attorney entered into an agreement with the prosecutor to avoid a criminal conviction. He arranged for Jonas to be part of the State of California’s drug diversion program. On condition that Jonas should have negative results in all his drug tests and upon completion of a drug rehabilitation program, his case would be dismissed. After a year, Jonas met all the conditions of the program, was deemed fully rehabilitated, and his criminal case dismissed. He was never convicted of the drug offense.
Prior to the expiration of the H1B visa of Jonas, his employer filed a Petition for Immigrant Visa on his behalf. This petition was approved and Jonas was able to obtain his permanent residency card.
In 2014, Jonas married his long time fiancé who was visiting in California. In order for Jonas to petition his fiancé, he decided to file for his naturalization to U.S. citizenship. At his interview for citizenship with the U.S. Citizenship and Immigration Services, Jonas’ prior drug case in 2008 was discovered. The immigration examiner requested Jonas to show proof of his criminal records and substantiate the fact that it was dismissed. Aside from his drug conviction, Jonas was also found to have reneged payments on his child support for a U.S. citizen child who he sired with a woman he met at his place of work. According to the immigration examiner, Jonas must prove ‘good moral character’ before he can be granted U.S. citizenship. What can he do to prove his good moral character? Will he be put in removal proceedings? What are the immigration consequences of his prior arrest?
Good Moral Character
An individual who has a personal history of honesty, fairness, respect for the rights of others and for the law is considered a person of good moral character. He is someone who possesses good moral virtues, and is ethically admirable. In the immigration context, the Immigration and Nationality Act defines good moral character in the negative. A person is deemed to have a good moral character if he has not committed certain violations of the law or committed certain specified acts.
The commission of certain types of crimes indicate lack of good moral character in the immigration context, such as convictions for murder, aggravated felony, violation of the law relating to controlled substances. Committing certain acts such as human smuggling, prostitution, illegal gambling, being a habitual drunkard are enumerated as actions, which while not necessarily amounting to crime as defined under penal law, leads nevertheless to a finding of lack of good moral character.
Interestingly, failure to comply with family obligations to support a child by refusal to pay child support is also in the list defining a person as lacking in good moral character. Very seldom enforced in immigration law but which may also be a valid ground for finding of lack of good moral character is having an extramarital affair which tended to destroy an existing marriage.
Why Character Matters
When obtaining immigrant or temporary visas, there are questions on the application forms requiring only “yes” or “no” answers. Most of these questions relate to issues affecting good moral character. If the applicant for a visa is determined to have committed certain crimes or committed acts defined in the law as constituting lack of good moral character, he would be denied the visa. The same rule applies to those who are applying for naturalization such as in the case of Jonas. The law requires an applicant for naturalization to show good moral character.
Those seeking visas, which are humanitarian in nature, must also prove good moral character. A victim of domestic violence, a widow spouse of U.S. citizen, victims of human trafficking, they are all required to possess good moral character before their visas could be approved.
In obtaining the relief of Cancellation of Removal for someone who is in deportation, the law requires the individual in proceedings to show good moral character otherwise, his deportation proceedings will not be dismissed.
Underlying Conduct
While a person’s character is a significant consideration in applications for visas, past underlying conduct constituting the crime or the criminal charges do not necessarily translate to a finding of lack of good moral character. Several factors have to be taken into account before denial of the immigration benefits are made on certain applications. Oftentimes depending on the nature of the offense, the person’s rehabilitation from his past mistakes will be considered a positive element for the grant of the immigration visa.
In crimes involving controlled substances, admission of its use may be ground for denials of visas. In criminal proceedings that involve the illegal use of controlled substances, therefore, it is important that the criminal case be handled in a manner that will have no serious immigration impact. Plea deals in criminal court should be carefully designed so as not to have adverse immigration consequences on the person accused.
In Jonas’s case, the diversion program and eventual dismissal of the drug crime has no adverse impact on his naturalization application. He should, however, make good on all his child support arrearages, in order strengthen his position that he is a person of good moral character deserving of the rights of citizenship.
(Atty. Lourdes Tancinco may be reached at law@tancinco.com or at (02)7211963 or visit her website at tancinco.weareph.com/old)
