Amnesty’s ‘Good Moral Character’ Has Gone AWOL

Views From The Bench

June 1, 2015

There is a conspicuous absence of good moral character considerations in determining eligibility for executive amnesty. Good moral character has long been part of the Immigration & Nationality Act (INA). In fact, the immigration law contains a definition for good moral character which is considered in many applications for relief under the INA. Section 101(f) of the INA bars persons who engage in certain acts or activities from demonstrating good moral character that is required for certain relief under the immigration laws.

For many decades, the INA has required that applicants for naturalization establish that they are not only familiar with the English language, but the history and laws of the United States. They must be attached to the Constitution and laws of this country. In addition, each person seeking to become a citizen must show that he or she has been a person of good moral character. Good moral character as defined in the INA has both statutory and discretionary components. This insures that all new citizens are persons of good character, honest, possess integrity and have demonstrated allegiance to our nation and our democratic principles. These processes are conducted on a case by case basis after careful review of citizenship eligibility and the requirements of law.

INA section 101(f) provides that a person shall not be deemed to be a person of good moral character (and thus barred from citizenship) if he or she is a habitual drunkard, prostitute, smuggler, or a person convicted of a crime of moral turpitude, multiple crimes or a drug crime (except for a single offense of simple possession of 30 grams or less of marijuana). The statue also bars a determination of good moral character for persons whose income is derived principally from illegal gambling, a person who has given false testimony for purposes of obtaining any benefit under the INA, a person convicted of an aggravated felony, a person who falsely claims US citizenship or registers or votes in violation of restrictions.

The naturalization officer may also make discretionary determinations denying good moral character for conduct such as nonsupport of dependents, filing false income tax returns, or committing other unlawful acts that adversely reflect upon the applicant’s moral character. This is a complicated area of the law with many nuances and exceptions. The issue of moral character can only be determined after a thorough review of the applicant’s immigration history, criminal record and past conduct not only while residing here, but also in foreign countries including the applicant’s country of origin.

In order to be granted adjustment of status to lawful permanent residence under INA Section 245, the alien must meet certain statutory requirements. Among other statutory factors, he or she must have been inspected and admitted or paroled, must be lawfully in the United States (with certain exceptions), must pass medical and security clearances, must be eligible and otherwise admissible, and must warrant a favorable exercise of discretion on the adjustment application.

An analysis similar to the one made for citizenship applicants is made relating to the factors that must be considered in establishing eligibility for lawful permanent residency. There are statutory bars and discretionary components in adjudicating these adjustment applications as well. Many of the grounds of inadmissibility which would bar eligibility for lawful permanent residency relate to factors involving the alien applicant’s moral character. These include such bars as involvement in crimes involving moral turpitude, multiple criminal convictions, controlled substance trafficking, prostitution, commercial vice, money laundering, terrorism, membership in totalitarian organizations, fraud and smuggling. The adjudicator must also determine whether the adjustment application warrants a favorable exercise of discretion. The applicant’s integrity, honesty, and character factor heavily in these determinations.

Good moral character is also considered in many other applications under the immigration laws. In order to be granted voluntary departure by an immigration judge at the conclusion of a removal proceeding, the alien must show that he or she has been a person of good moral character. If the individual cannot show good moral character, the application may be denied.

Congress has retained the requirement of good moral character in many aspects of the immigration law through numerous legislative changes to the INA. Its importance cannot be marginalized or diminished by those who argue for open borders or laxer enforcement of the immigration laws. Why then has the Obama Administration completely eliminated this consideration when granting “deferred action” to aliens who have resided in this country illegally?

The requirements for Deferred Action for Childhood Arrivals (DACA) include certain age and date of entry requirements, continuous residence and physical presence requirements, school attendance or graduation requirements, and unlawful status requirements. The DACA applicant must have no convictions for a felony, significant misdemeanor, or three or more misdemeanors and must not otherwise pose a threat to national security or public safety. It should be noted that the interpretation of three or more misdemeanors does not include multiple convictions based on the same charging document. If an alien is convicted on a multi-count indictment of three or more misdemeanors, it will only be counted as one incident for purposes of counting towards his or her three misdemeanors.

The eligibility requirements for Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) (a program which is currently enjoined by federal court order) include being an undocumented individual living in the United States who is a parent of a United States citizen or lawful permanent resident, who meets certain continuous residence and parental requirements, and was not an enforcement priority for removal based upon the November 20, 2014 Department of Homeland Security (DHS) policy for the Apprehension, Detention, and Removal of Undocumented Immigrants Memorandum.

It is readily apparent that the eligibility criteria for citizenship and lawful permanent residence which are based on the INA and its implementing regulations are strikingly different from the deferred action eligibility requirements which are based on ever changing and nebulous departmental policy memoranda. It is also notable that the very same continuous illegal residency and unlawful status requirements of deferred action which form the basis for executive action immunity from removal and enforcement are the same factors that precipitate removal enforcement for illegal aliens who are not the beneficiaries of grants of deferred action. Further, the eligibility requirements for deferred action seem to have been created at the whim of the President and DHS without the opportunity for public comment or debate. Under current statutes and regulations, the DACA requirements would not form the basis for granting legal status of any kind to illegal aliens currently residing in the United States.

Conspicuously missing from deferred action eligibility requirements and review procedures are many of the legal status requirements that relate to an illegal alien’s moral character. Good moral character is not a prerequisite to a grant of deferred action, yet lack of good moral character plays a dominant role in the denial of many adjustment of status, naturalization cases and other forms of relief.

Many of the adverse factors relating to good moral character would not be readily apparent during the cursory review of a deferred action application because of the limited scope of the review these applications receive and the very minimal evidentiary requirements of these programs. The sole criteria for a grant are the eligibility requirements for the specific deferred action program. There is little or no consideration for the grounds of inadmissibility or removability or the other factors that must by statute be considered in determining whether legal status should be conferred. The laxity of the review process is evidenced by a 97% deferred action approval rate. The fact is that criminal history records in the alien’s home country are often not available. Consequently, many criminals and gang members are now enjoying the benefits of deferred action.

Evidence relating to an alien’s moral character is difficult to elicit even during full blown immigration hearings as illegal aliens do not volunteer adverse information about themselves in their relief applications. There is very limited background investigation performed by DHS trial attorneys prior to an immigration hearing. In many cases, moral character determinations must be made on the basis of the credibility of the respondent’s testimony and their documentary evidence. The stakes are high for illegal aliens in removal proceedings. Too often there are attempts to obtain immigration benefits and relief from removal by use of false testimony and fraudulent documents.

One must also consider that the implementation of the Department’s enforcement policy memorandum of November 20, 2014 does not begin with the acceptance and review of a deferred action application. The policy memo also directs the procedures for apprehending and detaining illegal aliens by border patrol or immigration officers. A minimal screening by the arresting officer for DACA or DAPA eligibility will be determinative of whether an illegal alien will be released or arrested, processed for removal or placed in immigration proceedings. According to an October 2014 article by Jessica Vaughan of the Center for Immigration Studies based upon her review of DHS statistics, removal proceedings were initiated for only 143,000 out of the 585,000 illegal aliens encountered by Immigration and Customs Enforcement (ICE) agents in 2014. She concluded that tens of thousands of those let go had been labeled a criminal threat. She also concluded that interior enforcement deportations had plummeted from a peak of about 236,000 in 2009 to about 100,000 in 2014, a decline of 58%.

Ms. Vaughan’s article further documents that ICE continues to run a massive catch and release program in which agents are forced to release more deportable aliens than they are allowed to put on the path to deportation. To say that agents are forced to release tens of thousands of illegal aliens is not an understatement. Administration officials have confirmed that DHS employees are required to comply with the directives of the memorandum rather than follow the dictates of the law. In testimony before the House Judiciary Committee on April 14, 2015, (after the federal court order enjoining implementation of DAPA was issued) ICE Director Sarah Saladan stated that any officer or agent who did not follow the dictates of the November 2014 DHS Memorandum would face the entire gamut of possible employee sanctions, including termination, if they do not enforce the President’s immigration priorities. The Executive Deferred Action Program, along with the current DHS catch and release programs, should not be allowed to continue to constrain immigration enforcement and the removal of illegal aliens.

This country is not required to grant amnesty, deferred action or provide any other immigration benefit as a reward to lure illegal aliens out of the shadows, stop them from engaging in ongoing immigration violations, deter criminal conduct, require them to pay taxes they already owe and demonstrate responsible civic behavior. These are existing requirements which are essential prerequisites to residing here. Using deferred action, amnesty, legal residency or a path to citizenship as an inducement to come into compliance with the law devalues the honor of being a United States citizen and disrespects those who have obtained it through the process of legal immigration.

DHS and the immigration court provide the filter through which all immigrants must pass and this screening process requires due diligence, objectivity, lawfulness, and accountability. Our enforcement policies and procedures must not result in unintended consequences which may promote more illegal immigration and undermine our immigration enforcement system. The failures of our system lay not with the current law itself or our immigration enforcement structure, but with misguided enforcement policies and an abdication of responsibilities to enforce the law as it was enacted.

It is important to remember that eligibility for relief from immigration enforcement and removal does not equate with automatic entitlement to that relief. Good moral character, truthfulness, and integrity are “must haves” for all residents and citizens. Allegiance to our nation and our democratic values along with respect for our laws must be demonstrated. That is what is required to become an American. Our immigration laws and enforcement policies must reflect clarity of our nation’s core moral values.

This nation has the right and the duty to identify all who enter our country and know their true purposes for being here. It also has the responsibility to monitor their conduct while here to insure compliance with our laws and adherence to the principles of our democratic society. Our nation has the compassion to grant sanctuary and humanitarian relief from removal to those deserving it. However, it must also have the fortitude to exclude and remove the undeserving after providing requisite due process for all.

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