By Alexander Cerbo
The good moral character requirement is an essential component of federal immigration efforts; it ensures a “virtuous polity” and protects American ideals. However, while the United States holds itself out as a safe haven for those who seek a better life, it only welcomes those whom we deem belong. With more policies to remove than include, fear of prior misconduct paralyzes those who seek to become Americans.
The story of Qing Hong Wu, a legal immigrant from China, illustrates the dark side of this policy. After committing several muggings at the age of fifteen, Wu was convicted and sentenced to three to nine years in a reformatory, but was released early for “good behavior.” Post-release, Wu supported his mother by working as a data entry clerk, eventually working his way up to Vice President of the company. Twelve years later, engaged to be married, he applied for citizenship, disclosing his criminal history. Aside from the muggings, he had no other contact with law enforcement and was well-recognized as an upstanding member of his community. Unfortunately, his reformed behavior did him no good. The prior conviction made Wu statutorily unable to demonstrate the good moral character requirement, despite time-served and many years of upstanding behavior. Not only was he found permanently ineligible for citizenship, he was placed in federal detention as a criminal alien. Mandatory removal proceedings against him followed, which took a governor’s pardon to remedy.
Section 316 (a) of the Immigration and Nationality Act of 1952 (INA) states: “No person…shall be naturalized unless such applicant…(3) during all the period referred to in this subsection has been and still is a person of good moral character.” A naturalization applicant must establish their good moral character based upon the preceding five years of life prior to the start of the application. However, Section 316 (e) of the INA finds that while the applicant is only statutorily required to prove good moral character for the first five years preceding the application, the Attorney General may consider any criminal conduct committed prior to such period in order to determine if the applicant has met their burden.
The two categories of criminal conduct which permanently bar an applicant from establishing good moral character are aggravated felonies and crimes of moral turpitude. Under the INA, any noncitizen may be mandatorily removed from the country for committing an aggravated felony. The institution of this expansive and potentially lethal concept has derailed the hopes of naturalization for thousands of immigrants coming to the U.S. to pursue the American dream.
In an effort to reduce international drug trafficking crimes, the Anti-Drug Abuse Act of 1988 (ADAA) defined three specific crimes as aggravated felonies: murder, drug trafficking crimes, and illicit trafficking in firearms or destructive devices. The rationale behind this policy was to rid the country of any noncitizens involved in violent or drug-related activities. Congress has since expanded the term in two notable ways—by prohibiting naturalization to those who have committed any crime of violence for which the individual was sentenced to greater than five years, and by preventing anyone convicted of such a crime at any time after the passage of the ADAA from ever establishing good moral character.
The character bar triggered by a conviction for an aggravated felony applies even if the conviction predates the five-year period during which good moral character must be shown, even if there is overwhelming evidence to support the individual’s rehabilitation from criminal misconduct. The disciplinary consequences for aggravated felons include expedited removal proceedings, denial of discretionary relief, and permanent or long-term exclusion from entering or obtaining legal status in the U.S. The law automatically presumes that an aggravated felon is deportable and lacks good moral character (an aggravated felon is also ineligible for asylum, cancellation of removal, or voluntary departure). Therein exists the seemingly impossible burden of proving to immigration officials that the individual is entitled to remain in the country.
With regard to crimes of moral turpitude, Section 212(A)(2) of the INA states: “Any alien convicted of, or who admits having committed, or admits committing acts which constitute the essential elements of (I) a crime involving moral turpitude […] or an attempt or conspiracy to commit such a crime […] is inadmissible.” The issue of what constitutes a crime of moral turpitude has permeated immigration law for decades. The most common definition of moral turpitude can be found in Black’s Law Dictionary: “An act of baseness, vileness, or the depravity in private and social duties which man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man…an act or behavior that gravely violates moral sentiment or accepted moral standards of community…”
Moral turpitude was established in the Immigration Act of 1891, which aimed to create a vision to uphold “social rectitude” and to maintain an image of highly valued moral character. The term “crimes of moral turpitude” was used to describe actions which ought to be hated by the general community. Examples of such behavior included “disloyalty, oath-breaking, and deception in financial matters.” As Julia Simon-Kerr further noted, “moral turpitude as an immigration standard functioned to protect the polity from persons identified as not belonging.” In 1917, Congress had expanded the provision to permit the deportation of immigrants convicted of crimes involving moral turpitude.
The U.S. Department of State Foreign Affairs Manual has divided crimes involving moral turpitude into three categories: crimes against property; against the government; and against persons, family relationships, and sexual morality. Most judicial authorities agree that crimes involving an element of fraud, larceny, or intent to harm persons or property are crimes which involve moral turpitude. Therefore, those seeking American citizenship who have committed such crimes are often denied. Moreover, those currently in the U.S. legally or illegally who want to apply for citizenship are almost certain to face removal proceedings if they have committed these crimes, or any other crimes of deception.
The ability of Congress to use crimes of moral turpitude as a way to not only exclude, but also remove immigrants from American society was achieved through a two-tiered approach. The first tier included deportation of aliens who were sentenced to terms of one year or more for “fresh” moral turpitude crimes (those committed within five years of entry). The second tier included aliens who were sentenced to multiple terms of imprisonment of one year or more, regardless of when the convictions occurred. The latter tier allows the federal government to deport individuals who have been lawful permanent residents for an extensive period of time.
With more barriers to entry than guidance, immigrants and non-residents alike experience great difficulty establishing a new life in the U.S. Looked down upon for any prior misconduct, immigrants cannot seem to cleanse the scarlet letter of past misdeeds, no matter how long a streak of good behavior may follow. For the non-resident living in America, coming forward in an honest and open manner has a hefty price: removal from the very place they call home.