DUI and Naturalization Application (N400)

Good Moral Character Test for Naturalization

Requirement of Good Moral Character for Naturalization

One of the requirements for naturalization is good moral character. This means character which measure up to the standards of average citizens of the community in which the applicant resides. An applicant must show good moral character during the statutory period prior to filing and up to the time of the Oath of Allegiance. The statutory period depends on which naturalization provision the applicant filed under. Generally, the statutory period is five years and the period is three years for those who seek to naturalize via marriage to a U.S. citizen. Conduct outside the statutory period may also impact the good moral character requirement.

Permanent Bars to Good Moral Character

An applicant will not be found to have good moral character if the applicant has been, “convicted of murder at any time; or convicted of an aggravated felony as defined in section 101(a)(43) of the Act on or after November 29, 1990.” ( 8 CFR 316.10(b)(1)(i)) An applicant who has been convicted of an aggravated felony prior to November 29, 1990, is not permanently barred from naturalization, but the USCIS officer can consider the seriousness of the offense along with the applicant’s present moral character in determining whether the applicant meets the good moral character requirement.

To qualify as an aggravated felony for immigration purposes, some offenses require a minimum term of imprisonment of one year. Term of imprisonment generally refers to an alien’s original criminal sentence, without regard to post-sentencing changes. Post-sentencing orders that change a criminal alien’s original sentence will only be relevant for immigration purposes if they are based on a procedural or substantive defect in the underlying criminal proceeding. Post-sentencing orders will have no effect for immigration purposes if based on, “reasons unrelated to the merits of the underlying criminal proceeding, such as rehabilitation or the avoidance of immigration consequences.” Matter of Thomas and Thompson, 27 I&N Dec. 674 (A.G. 2019)

Conditional Bars to Good Moral Character

Conditional bars are not permanent in nature. A conditional bar to good moral character is triggered by specific acts, offenses, activities, circumstances, or convictions within the statutory period for naturalization, including the period prior to filling and up to the time of the Oath of Allegiance. The Federal code of regulations has enumerated various offenses in 8 CFR 316.10 that will result in a conditional bar to good moral character. Outside of those enumerated offenses the unlawful acts provision encompasses many other acts. “Unless the applicant establishes extenuating circumstances, the applicant shall be found to lack good moral character if, during the statutory period, the applicant: committed unlawful acts that adversely reflect upon the applicant’s moral character, or was convicted or imprisoned for such acts, although the acts do not fall within the purview of §316.10(b) (1) or (2).”

An applicant can prove extenuating circumstances to some offenses to show that good moral character is not adversely affected. An applicant can establish extenuating circumstances if during the statutory period the applicant failed to support dependents, had an extramarital affair during the statutory period that tended to destroy an existing marriage, and committed unlawful acts that adversely reflect upon the applicant’s moral character, or was convicted or imprisoned for such acts, although the acts do not fall within the purview of §316.10(b) (1) or (2).

When an USCIS officer reviews extenuating circumstances under the unlawful acts provision, the burden is on the applicant to show the extenuating circumstances mitigate the effect of the unlawful act on the applicant’s moral character. Extenuating circumstances must pertain to the unlawful act and must precede or be contemporaneous with the commission of the unlawful act. “An officer may not, however, consider conduct or equities (including evidence of reformation or rehabilitation) subsequent to the commission of the unlawful act as an extenuating circumstance. Consequences after the fact and future hardship(s) are not extenuating circumstances.”

Good Moral Character When Conduct is Outside Statutory Period

Good moral character is evaluated on a case by case basis and USCIS can look to an applicant’s conduct before the statutory period. “An applicant’s conduct prior to the good moral character period may affect the applicant’s ability to establish good moral character if the applicant’s present conduct does not reflect a reformation of character or the earlier conduct is relevant to the applicant’s present moral character.”

An officer must consider the totality of the circumstances and assess various factors when assessing an applicant’s current moral character and reformation of character. Some of those factors that may be relevant include:

Family ties and background;
Absence or presence of other criminal history;
Employment history;
Other law-abiding behavior (for example, paying taxes);
Community involvement;
Credibility of the applicant;
Compliance with probation; and
Length of time in United States
Multiple DUI convictions and how it affects Good Moral Character

The term “driving under the influence” (DUI) includes all state and federal impaired-driving offenses, including “driving while intoxicated,” “operating under the influence,” and other offenses that make it unlawful for a person to operate a motor vehicle while impaired. Evidence of two or more convictions for driving under the influence during the relevant period establishes a presumption that a person likely lacks good moral character under the catch-all clause of 8 U.S.C. § 1101(f). Matter of Castillo-Perez 27 I&N Dec. 664 (A.G. 2019)

However, an applicant can establish that multiple convictions were an aberration and can show good moral character. This is a high burden to meet and an applicant’s efforts to reform or rehabilitate himself after multiple convictions, do not themselves demonstrate good moral character during the period that includes the convictions. An applicant will need to show substantial relevant and credible contrary evidence to rebut the presumption that a person lacks good moral character because of multiple DUIs.

Multiple DUI convictions that involve alcohol should also prompt an immigration judge to determine whether the applicant is or was habitual drunkard, which is specially enumerated as a ban to good moral character. An applicant who is or was a habitual drunkard during the statutory period cannot establish good moral character. A habitual drunkard is “a person who regularly drinks alcoholic beverages to excess.” “Certain documents may reveal habitual drunkenness, to include divorce decrees, employment records, and arrest records.” “In addition, termination of employment, unexplained periods of unemployment, and arrests or multiple convictions for public intoxication or driving under the influence may be indicators that the applicant is or was a habitual drunkard.”

By Byron Ramirez

Legal Intern / J.D Candidate 2022

Law Office of Hong-min Jun