Under section 240A of the Immigration and Nationality Act (INA), to be eligible for cancellation of removal, the cancellation-of-removal applicant has the burden of showing himself or herself to be of good moral character for a certain period of time.
As might be expected, the standards of good moral character fluctuate from immigration judge to immigration judge. That being said, the INA defines “good moral character.” The INA defines the phrase only through listing groups of noncitizens who are considered to not have good moral character. Such noncitizens include the following groups:
- Habitual drunkards;
- Those who have committed adultery during the period for which it is necessary to establish good moral character;
- Polygamists, prostitutes, those who live off prostitution, smugglers of aliens, and those who come to the United States to engage in immoral sex acts;
- Those persons who have been convicted of a crime of moral turpitude, of a narcotics violation, or of two crimes, regardless of whether they involved moral turpitude, for which the aggregate sentences actually imposed were five years of more;
- Those whose incomes are principally derived from gambling activities;
- Those who have been convicted of two or more gambling offenses committed during the requisite statutory period;
- Those who have given false testimony for the purpose of obtaining any benefit under the INA (arguably, “testimony” must be oral utterances of witnesses under oath, as opposed to, for example, written statements in an application; however, the false testimony does not need to be material in order to bar the establishment of good moral character);
- Those who during the statutory period, as a result of a conviction, have been confined in a penal institution for 180 days or more;
- Those who at any time have been convicted of an aggravated felony as defined at § 101(a)(43) of the INA; and
- Those who at any time have engaged in conduct described in INA § 212(a)(3)(E) (relating to assistance in Nazi persecution, participation in genocide, or commission of acts of torture or extrajudicial killings) or INA § 212(a)(2)(G) (relating to severe violations of religious freedom).
It is important to note that the fact that an applicant is not a member of one of the precluded classes does not ensure a finding of good moral character.
It is also important to note a few things about the period of time during which a noncitizen must show good moral character:
- The period during which good moral character must be established ends with the entry of a final administrative decision by the immigration judge (IJ) or the BIA;
- Behavior prior to the requisite statutory period may be considered in establishing good moral character within the statutory period.