The Deport Report – USCIS moves the moral compass on “Good Moral Character” requirement

Under INA 212(a)(2) and INA 237(a), immigration laws have outlined the immigration consequences associated with criminal acts. Such criminal activity may render an applicant inadmissible or deportable or ineligible for the immigration benefit being sought. In addition, certain immigration benefits require an applicant to demonstrate that he or she has Good Moral Character (GMC) in order to demonstrate eligibility for the benefit. An alien’s criminal convictions can impact this GMC determination. 

Prior to October 25, 2019 the tests for determination of an alien’s GMC was based in Matter of Cota-Vargas (2005), Matter of Song (2018), and Matter of Estrada (2013). On May 28, 2019 Attorney General (AG) Whitaker directed the Board of Immigration Appeals (BIA) to refer Matter of Thomas and Thompson (2019) to his office for review. On October 25, 2019 AG Whitaker held: 

• The tests set forth in Matter of Cota-Vargas, Matter of Song, and Matter of Estrada will no longer govern the effect of state-court orders that modify, clarify, or otherwise alter a criminal alien’s sentence. 

• Such state-court orders will be given effect for immigration purposes only if based on a procedural or substantive defect in the underlying criminal proceeding; these 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.

This meant that a “term of imprisonment or a sentence” now refers to the alien’s original criminal sentence without regard to post-sentencing alterations for reasons other than a procedural or substantive defect in the underlying criminal proceeding.

On the same day AG Whitaker also released a decision on Matter of Castillo-Perez:

• Evidence of two or more convictions for driving under the influence during the relevant period establishes a presumption that an alien lacks good moral character under INA § 101(f), 8 U.S.C. § 1101(f).

• Because only aliens who possessed good moral character for a 10-year period are eligible for cancellation of removal under section 240A(b) of the INA, 8 U.S.C. § 1229b(b), such evidence also presumptively establishes that the alien’s application for that discretionary relief should be denied.

This means that evidence of two or more DUI convictions during the relevant statutory period establishes a rebuttable presumption of a lack of GMC and would disqualify an alien from seeking certain reliefs like 240A(b) Cancellation of Removal for certain legal permanent residents.