Chapter 5 - Conditional Bars for Acts in Statutory Period

In addition to the permanent bars to good moral character (GMC), the Immigration and Nationality Act (INA) and corresponding regulations include bars to GMC that are not permanent in nature. USCIS refers to these bars as “conditional bars.” These bars are triggered by specific acts, offenses, activities, circumstances, or convictions within the statutory period for naturalization, including the period prior to filing and up to the time of the Oath of Allegiance.^[1] An offense that does not fall within a permanent or conditional bar to GMC may nonetheless affect an applicant’s ability to establish GMC.^[2]

With regard to bars to GMC requiring a conviction, the officer reviews the relevant federal or state law or regulation of the United States, or law or regulation of any foreign country to determine whether the applicant can establish GMC.

The table below serves as a quick reference guide on the general conditional bars to establishing GMC for acts occurring during the statutory period. The sections and paragraphs that follow the table provide further guidance on each bar and offense.

Conditional Bars to GMC for Acts Committed in Statutory Period

Offense	Citation	Description
One or More Crimes Involving Moral Turpitude (CIMTs)	INA 101(f)(3) 8 CFR 316.10(b)(2)(i), (iv)	Conviction or admission of one or more CIMTs (other than political offense), except for one petty offense
Aggregate Sentence of 5 Years or More	INA 101(f)(3) 8 CFR 316.10(b)(2)(ii), (iv)	Conviction of two or more offenses with combined sentence of 5 years or more (other than political offense)
Controlled Substance Violation	INA 101(f)(3) 8 CFR 316.10(b)(2)(iii), (iv)	Violation of any law on controlled substances, except for simple possession of 30g or less of marijuana
Incarceration for 180 Days	INA 101(f)(7) 8 CFR 316.10(b)(2)(v)	Incarceration for a total period of 180 days or more, except political offense and ensuing confinement abroad
False Testimony under Oath	INA 101(f)(6) 8 CFR 316.10(b)(2)(vi)	False testimony for the purpose of obtaining any immigration benefit
Prostitution Offenses	INA 101(f)(3) 8 CFR 316.10(b)(2)(vii)	Engaged in prostitution, attempted or procured to import prostitution, or received proceeds from prostitution
Smuggling of a Person	INA 101(f)(3) 8 CFR 316.10(b)(2)(viii)	Involved in smuggling of a person to enter or try to enter the United States in violation of law
Polygamy	INA 101(f)(3) 8 CFR 316.10(b)(2)(ix)	Practiced or is practicing polygamy (the custom of having more than one spouse at the same time)
Gambling Offenses	INA 101(f)(4)–(5) 8 CFR 316.10(b)(2)(x)–(xi)	Two or more gambling offenses or derives income principally from illegal gambling activities
Habitual Drunkard	INA 101(f)(1) 8 CFR 316.10(b)(2)(xii)	Is or was a habitual drunkard
Two or More Convictions for Driving Under the Influence (DUI)	INA 101(f)	Two or more convictions for driving under the influence during the statutory period
Failure to Support Dependents	INA 101(f) 8 CFR 316.10(b)(3)(i)	Willful failure or refusal to support dependents, unless extenuating circumstances are established
Adultery	INA 101(f) 8 CFR 316.10(b)(3)(ii)	Extramarital affair tending to destroy existing marriage, unless extenuating circumstances are established
Unlawful Acts	INA 101(f) 8 CFR 316.10(b)(3)(iii)	Unlawful acts that adversely reflect upon GMC, unless extenuating circumstances are established

A. One or More Crimes Involving Moral Turpitude

1. Crime Involving Moral Turpitude

“Crime involving moral turpitude” (CIMT) is a term used in the immigration context that has no statutory definition. Extensive case law, however, has provided sufficient guidance on whether an offense rises to the level of a CIMT. The courts have held that moral turpitude “refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.”^[3]

Whether an offense is a CIMT is largely based on whether the offense involves willful conduct that is morally reprehensible and intrinsically wrong, the essence of which is a reckless, evil or malicious intent. The Attorney General has decreed that a finding of “moral turpitude” requires that the perpetrator committed a reprehensible act with some form of guilty knowledge.^[4]

The officer should consider the nature of the offense in determining whether it is a CIMT.^[5] In many cases, the CIMT determination depends on whether the relevant state statute includes one of the elements that involves moral turpitude. For example, an offense or crime may be a CIMT in one state, but a similarly named crime in another state may not be a CIMT because of differences in the definition of the crime or offense. The officer may rely on local USCIS counsel in cases where there is a question about whether a particular offense is a CIMT.

The table below serves as a quick reference guide on the general categories of CIMTs and their respective elements or determining factors. The paragraphs that follow the table provide further guidance on each category.

General Categories of Crimes Involving Moral Turpitude (CIMTs)

CIMT Category	Elements of Crime
Crimes Against a Person	Criminal intent or recklessness, or is defined as morally reprehensible by state (may include statutory rape)
Crimes Against Property	Involving fraud against the government or an individual (may include theft, forgery, robbery)
Sexual and Family Crimes	No one set of principles or elements; see further explanation below (may include spousal or child abuse)
Crimes Against Authority of the Government	Presence of fraud is the main determining factor (may include offering a bribe, counterfeiting)

Crimes Against a Person

Crimes against a person involve moral turpitude when the offense contains criminal intent or recklessness or when the crime is defined as morally reprehensible by state statute. Criminal intent or recklessness may be inferred from the presence of unjustified violence or the use of a dangerous weapon. For example, aggravated battery is usually, if not always, a CIMT. Simple assault and battery is not usually considered a CIMT.

Crimes Against Property

Moral turpitude attaches to any crime against property which involves fraud, whether it entails fraud against the government or against an individual. Certain crimes against property may require guilty knowledge or intent to permanently take property. Petty theft, grand theft, forgery, and robbery are CIMTs in some states.

Sexual and Family Crimes

It is difficult to discern a distinguishing set of principles that the courts apply to determine whether a particular offense involving sexual and family crimes is a CIMT. In some cases, the presence or absence of violence seems to be an important factor. The presence or absence of criminal intent may also be a determining factor. The CIMT determination depends upon state statutes and the controlling case law and must be considered on a case-by-case basis.

Offenses such as spousal or child abuse may rise to the level of a CIMT, while an offense involving a domestic simple assault generally does not. An offense relating to indecent exposure or abandonment of a minor child may or may not rise to the level of a CIMT. In general, if the person knew or should have known that the victim was a minor, any intentional sexual contact with a child involves moral turpitude.^[6]

Crimes Against the Authority of the Government

The presence of fraud primarily determines the presence of moral turpitude in crimes against the authority of the government. Offering a bribe to a government official and offenses relating to counterfeiting are generally CIMTs. Offenses relating to possession of counterfeit securities without intent and contempt of court, however, are not generally CIMTs.

2. Committing One or More CIMTs in Statutory Period

An applicant who is convicted of or admits to committing one or more CIMTs during the statutory period cannot establish GMC for naturalization.^[7] If the applicant has only been convicted of (or admits to) one CIMT, the CIMT must have been committed within the statutory period as well. In cases of multiple CIMTs, only the commission and conviction (or admission) of one CIMT needs to be within the statutory period.

Petty Offense Exception

An applicant who has committed only one CIMT that is a considered a “petty offense,” such as petty theft, may be eligible for an exception if all of the following conditions are met:

• The “petty offense” is the only CIMT the applicant has ever committed;​

• The sentence imposed for the offense was 6 months or less; and​

• The maximum possible sentence for the offense does not exceed one year.^[8]

The petty offense exception does not apply to an applicant who has been convicted of or who admits to committing more than one CIMT even if only one of the CIMTs was committed during the statutory period. An applicant who has committed more than one petty offense of which only one is a CIMT may be eligible for the petty offense exception.^[9]

Purely Political Offense Exception

This bar to GMC does not apply to a conviction for a CIMT occurring outside of the United States for a purely political offense committed abroad.^[10]

B. Aggregate Sentence of 5 Years or More

An applicant may not establish GMC if he or she has been convicted of two or more offenses during the statutory period for which the combined, imposed sentence was 5 years or more.^[11] The underlying offenses must have been committed within the statutory period.

Purely Political Offense Exception

The GMC bar for having two or more convictions does not apply if the convictions and resulting sentence or imprisonment of 5 years or more occurred outside of the United States for purely political offenses committed abroad.^[12]

C. Controlled Substance Violation

1. Controlled Substance Violations

An applicant cannot establish good moral character (GMC) if he or she has violated any controlled substance-related federal or state law or regulation of the United States or law or regulation of any foreign country during the statutory period.^[13] This includes conspiring to violate or aiding and abetting another person to violate such laws or regulations.

This conditional bar to establishing GMC applies to a conviction for such an offense or an admission to such an offense, or an admission to committing acts that constitute the essential elements of a violation of any controlled substance law.^[14] Furthermore, a conviction or admission that the applicant has been a trafficker in a controlled substance, or benefited financially from a spouse or parent’s trafficking is also a conditional bar.^[15]

Controlled substance is defined in the Controlled Substances Act (CSA) as a “drug or other substance, or immediate precursor” that is included in the schedule or attachments in the CSA.^[16] The substance underlying the applicant’s state law conviction or admission must be listed in the CSA.^[17] Possession of controlled substance related paraphernalia may also constitute an offense “relating to a controlled substance” and may preclude the applicant from establishing GMC.^[18]

2. Conditional GMC Bar Applies Regardless of State Law Decriminalizing Marijuana

A number of states and the District of Columbia (D.C.) have enacted laws permitting “medical”^[19] or “recreational”^[20] use of marijuana.^[21] Marijuana, however, remains classified as a “Schedule I” controlled substance under the federal CSA.^[22] Schedule I substances have no accepted medical use pursuant to the CSA.^[23] Classification of marijuana as a Schedule I controlled substance under federal law means that certain conduct involving marijuana, which is in violation of the CSA, continues to constitute a conditional bar to GMC for naturalization eligibility, even where such activity is not a criminal offense under state law.^[24]

Such an offense under federal law may include, but is not limited to, possession, manufacture or production, or distribution or dispensing of marijuana.^[25] For example, possession of marijuana for recreational or medical purposes or employment in the marijuana industry may constitute conduct that violates federal controlled substance laws. Depending on the specific facts of the case, these activities, whether established by a conviction or an admission by the applicant, may preclude a finding of GMC for the applicant during the statutory period. An admission must meet the long held requirements for a valid “admission” of an offense.^[26] Note that even if an applicant does not have a conviction or make a valid admission to a marijuana-related offense, he or she may be unable to meet the burden of proof to show that he or she has not committed such an offense.

3. Exception for Single Offense of Simple Possession^[27]

The conditional bar to GMC for a controlled substance violation does not apply if the violation was for a single offense of simple possession of 30 grams or less of marijuana.^[28] This exception is also applicable to paraphernalia offenses involving controlled substances as long as the paraphernalia offense is “related to” simple possession of 30 grams or less of marijuana.^[29]

D. Imprisonment for 180 Days or More

An applicant cannot establish GMC if he or she is or was imprisoned for an aggregate period of 180 days or more during the statutory period based on a conviction.^[30] This bar to GMC does not apply if the conviction resulted only in a sentence to a period of probation with no sentence of incarceration for 180 days or more. This bar applies regardless of the reason for the conviction. For example, this bar still applies if the term of imprisonment results from a violation of probation rather than from the original sentence.^[31]

The commission of the offense resulting in conviction and confinement does not need to have occurred during the statutory period for this bar to apply. Only the confinement needs to be within the statutory period for the applicant to be precluded from establishing GMC.

Purely Political Offense Exception

This bar to GMC does not apply to a conviction and resulting confinement of 180 days or more occurring outside of the United States for a purely political offense committed abroad.^[32]

E. False Testimony

1. False Testimony in Statutory Period

An applicant who gives false testimony to obtain any immigration benefit during the statutory period cannot establish GMC.^[33] False testimony occurs when the applicant deliberately intends to deceive the U.S. Government while under oath in order to obtain an immigration benefit. This holds true regardless of whether the information provided in the false testimony would have impacted the applicant’s eligibility. The statute does not require that the benefit be obtained, only that the false testimony is given in an attempt to obtain the benefit.^[34]

While the most common occurrence of false testimony is failure to disclose a criminal or other adverse record, false testimony can occur in other areas. False testimony may include, but is not limited to, facts about lawful admission, absences, residence, marital status or infidelity, employment, organizational membership, or tax filing information. 

2. Three Elements of False Testimony

There are three elements of false testimony established by the Supreme Court that must exist for a naturalization application to be denied on false testimony grounds:^[35]

Oral Statements

The “testimony” must be oral. False statements in a written application and falsified documents, whether or not under oath, do not constitute “testimony.”^[36] However, false information provided orally under oath to an officer in a question-and-answer statement relating to a written application is “testimony.”^[37] The oral statement must also be an affirmative misrepresentation. The Supreme Court makes it clear that there is no “false testimony” if facts are merely concealed, to include incomplete but otherwise truthful answers.

Oath

The oral statement must be made under oath in order to constitute false testimony.^[38] Oral statements to officers that are not under oath do not constitute false testimony. 

Subjective Intent to Obtain an Immigration Benefit

The applicant must be providing the false testimony in order to obtain an immigration benefit. False testimony for any other reason does not preclude the applicant from establishing GMC. 

F. Prostitution

An applicant may not establish GMC if he or she has engaged in prostitution, procured or attempted to procure or to import prostitutes or persons for the purpose of prostitution, or received proceeds from prostitution during the statutory period.^[39] The Board of Immigration Appeals (BIA) has held that to “engage in” prostitution, one must have engaged in a regular pattern of behavior or conduct.^[40] The BIA has also determined that a single act of soliciting prostitution on one’s own behalf is not the same as procurement.^[41]

G. Smuggling of a Person

An applicant is prohibited from establishing GMC if he or she is or was involved in the smuggling of a person or persons by encouraging, inducing, assisting, abetting or aiding any noncitizen to enter or try to enter the United States in violation of law during the statutory period.^[42]

Family Reunification Exception

This bar to GMC does not apply in certain cases where the applicant was involved in the smuggling of his or her spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law before May 5, 1988.^[43]

H. Polygamy

An applicant who has practiced or is practicing polygamy during the statutory period is precluded from establishing GMC.^[44] Polygamy is the custom of having more than one spouse at the same time.^[45] The officer should review documents in the file and any documents the applicant brings to the interview for information about the applicant’s marital history, to include any visa petitions or applications, marriage and divorce certificates, and birth certificates of children.

I. Gambling

An applicant who has been convicted of committing two or more gambling offenses or who derives his or her income principally from illegal gambling activities during the statutory period is precluded from establishing GMC.^[46] The gambling offenses must have been committed within the statutory period.

J. Habitual Drunkard

An applicant who is or was a habitual drunkard during the statutory period is precluded from establishing GMC.^[47] 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.

K. Certain Acts in Statutory Period

Although the INA provides a list of specific bars to good moral character,^[48] the INA also allows a finding that “for other reasons” a person lacks good moral character, even if none of the specific statutory bars applies.^[49] The following sections provide examples of acts that may lead to a finding that an applicant lacks GMC “for other reasons.”^[50]

1. Driving Under the Influence

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. This term does not include lesser included offenses, such as negligent driving, that do not require proof of impairment. 

Evidence of two or more DUI convictions during the statutory period establishes a rebuttable presumption that an applicant lacks GMC.^[51] The rebuttable presumption may be overcome^[52] if the applicant is able to provide “substantial relevant and credible contrary evidence” that he or she “had good moral character even during the period within which he [or she] committed the DUI offenses,” and that the “convictions were an aberration.”^[53] An applicant’s efforts to reform or rehabilitate himself or herself after multiple DUI convictions do not in and of themselves demonstrate GMC during the period that includes the convictions. 

2. Failure to Support Dependents

An applicant who willfully failed or refused to support his or her dependents during the statutory period cannot establish GMC unless the applicant establishes extenuating circumstances.^[54] The GMC determination for failure to support dependents includes consideration of whether the applicant has complied with his or her child support obligations abroad in cases where it is relevant.^[55]

Even if there is no court-ordered child support, the courts have concluded that parents have a moral and legal obligation to provide support for their minor children, and a willful failure to provide such support demonstrates that the individual lacks GMC.^[56]

An applicant who fails to support dependents may lack GMC if he or she:

• Deserts a minor child;^[57]​

• Fails to pay any support;^[58] or​

• Obviously pays an insufficient amount.^[59]

If the applicant has not complied with court-ordered child support and is in arrears, the applicant must identify the length of time of non-payment and the circumstances for the non-payment. An officer should review all court records regarding child support, and non-payment if applicable, in order to determine whether the applicant established GMC.^[60]

Extenuating Circumstances 

If the applicant shows extenuating circumstances, a failure to support dependents should not adversely affect the GMC determination.^[61]

The officer should consider the following circumstances:

• An applicant’s unemployment and financial inability to pay the child support;^[62]​

• Cause of the unemployment and financial inability to support dependents;​

• Evidence of a good-faith effort to reasonably provide for the support of the child;^[63]​

• Whether the nonpayment was due to an honest but mistaken belief that the duty to support a minor child had terminated;^[64] and​

• Whether the nonpayment was due to a miscalculation of the court-ordered arrears.^[65]

3. Adultery

An applicant who has an extramarital affair during the statutory period that tended to destroy an existing marriage is precluded from establishing GMC.^[66]

Extenuating Circumstances

If the applicant shows extenuating circumstances, an offense of adultery should not adversely affect the GMC determination.^[67] Extenuating circumstances may include instances where the applicant divorced his or her spouse but later the divorce was deemed invalid or the applicant and the spouse mutually separated and they were unable to obtain a divorce.^[68]

L. Unlawful Acts

1. Unlawful Acts Provision

An applicant who has committed, was convicted of, or was imprisoned for an unlawful act during the statutory period may be found to lack GMC if the act adversely reflects on his or her moral character, unless the applicant can demonstrate extenuating circumstances.^[69] An act is unlawful if it violates a criminal or civil law of the jurisdiction where it was committed. The provision addressing “unlawful acts” does not require the applicant to have been charged with or convicted of the offense.^[70] The fact that none of the statutorily enumerated bars to GMC applies does not preclude a finding under this provision that the applicant lacks the GMC required for naturalization.^[71]

2. Case-by-Case Analysis

USCIS officers determine on a case-by-case basis whether an unlawful act committed during the statutory period is one that adversely reflects on moral character.^[72] The officer may make a finding that an applicant did not have GMC due to the commission of an unlawful act evidenced through admission, conviction, or other relevant, reliable evidence in the record.^[73] The case-by-case analysis must address whether:

• The act is unlawful (meaning the act violates a criminal or civil law in the jurisdiction where committed);

• The act was committed or the person was convicted of or imprisoned for the act during the statutory period;

• The act adversely reflects on the person’s moral character; and

• There is evidence of any extenuating circumstances.^[74]

In addition, in cases under the jurisdiction of the Ninth Circuit, the officer’s analysis must also consider any counterbalancing factors that bear on the applicant’s moral character.^[75]

The following steps provide officers with further guidance on making GMC determinations based on the unlawful acts provision.

Step 1 – Determine Whether the Applicant Committed, Was Convicted of, or Was Imprisoned for an Unlawful Act during the Statutory Period

The officer should determine if the applicant committed, was convicted of, or was imprisoned for any unlawful acts during the statutory period. To determine if an act qualifies as an unlawful act, the officer should identify the applicable law, then look to whether the act violated the relevant law regardless of whether criminal or civil proceedings were initiated or concluded during the statutory period.^[76]

Officers should only conclude that a person committed the acts in question based on a conviction record, an admission to the elements of the criminal or civil offense, or other relevant, reliable evidence in the record showing commission of the unlawful act.^[77]

Step 2 – Determine Whether the Unlawful Act Adversely Reflects on GMC

The officer should evaluate whether the unlawful act adversely reflects on the moral character of the applicant. Unlawful acts that reflect adversely on moral character are not limited to conduct that would be classified as a CIMT.^[78] In general, an act that is classified as a CIMT^[79] would be an unlawful act that adversely reflects on the applicant’s moral character.^[80] An officer should also consider whether the act is against the standards of an average member of the community. For example, mere technical or regulatory violations may not be against the standards of an average member of the community.^[81]

Step 3 – Review for Extenuating Circumstances

The officer should review whether the applicant has shown extenuating circumstances which render the crime less reprehensible than it otherwise would be or the actor less culpable than he or she otherwise would be.^[82] Extenuating circumstances must pertain to the unlawful act and must precede or be contemporaneous with the commission of the unlawful act.^[83] It is the applicant’s burden to show extenuating circumstances that mitigate the effect of the unlawful act on the applicant’s moral character.^[84]

If the applicant meets his or her burden of proof to demonstrate extenuating circumstances, the officer may find that commission of the unlawful act^[85] does not preclude the applicant from establishing GMC.^[86] 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.^[87]

3. Examples of Unlawful Acts

There is no comprehensive list of unlawful acts in the INA or regulations. Examples of unlawful acts recognized by case law as barring GMC include, but are not limited to the following:

• Bail jumping;^[88]

• Bank fraud;^[89]

• Conspiracy to distribute a controlled substance;^[90]

• Failure to file or pay taxes (discussed below);

• Falsification of records;^[91]

• False claim to U.S. citizenship;^[92]

• Forgery-uttering;^[93]

• Insurance fraud;^[94]

• Obstruction of justice;^[95]

• Sexual assault;^[96]

• Social Security fraud;^[97]

• Unlawful harassment;^[98]

• Unlawfully registering to vote (discussed below);

• Unlawful voting (discussed below); and

• Violating a U.S. embargo.^[99]

Despite these examples, officers must still perform the case-by-case analysis described above, including whether the act adversely reflects on one’s moral character and the existence of any extenuating circumstances, in every case.^[100]

Failure to File Tax Returns or Pay Taxes in Accordance with Tax Authority

An applicant who fails to file tax returns, if required to do so, or fully pay his or her tax liability, as required under the relevant tax laws, may be precluded from establishing GMC. If there are inconsistencies^[101] between the record and the applicant’s tax returns, the applicant may be precluded from establishing GMC due to the commission of an unlawful act.^[102] Once the failure to file tax returns or pay taxes and the relevant law has been identified, the officer must assess on a case-by-case basis whether the applicant is ineligible for naturalization under the unlawful acts provision. If the officer determines that the unlawful conduct violates the standards of an average member of the community, the applicant will not be able to establish GMC. However, recognizing the complexities of filing taxes, there may be instances where the officer may determine that the applicant’s conduct regarding his or her tax return or tax payment did not violate the standards of an average member of the community, or that the applicant established extenuating circumstances. In such cases, the applicant may establish GMC by showing that he or she has corrected all inconsistencies or errors. An example of when an applicant may not be prevented from establishing GMC despite filing taxes incorrectly could be where the applicant is divorced and mistakenly claimed a child as a dependent on his or her tax return for a tax year that the former spouse was entitled to claim the child as a dependent based on the terms of the divorce.

Examples of corrections of such inconsistencies or errors might include a letter from the tax authority indicating that:

• The applicant has filed the appropriate forms and returns; and

• The applicant has paid the required taxes, or has made arrangements for payment and is doing so in accordance with the pertinent tax authority.

M. Unlawful Acts: False Claim to U.S. Citizenship, Unlawful Voter Registration, and Unlawful Voting

An applicant may fail to show GMC if he or she committed or was convicted or imprisoned for any of the following unlawful acts during the statutory period:^[103]

• Knowingly making any false statement or claim that he or she is a citizen of the United States in order to register to vote or to vote in any federal, state, or local election (including an initiative, recall, or referendum);^[104]

• Knowingly making any false statement or claim that he or she is or has been a U.S. citizen or national of the United States, with the intent to obtain on behalf of himself or herself, or any other person, any federal or state benefit or service, or to engage unlawfully in employment in the United States;^[105]

• Registering to vote in violation of any state or local law;^[106] or

• Voting in a federal election while the applicant was a noncitizen.^[107]

1. False Claims to U.S. Citizenship

An applicant commits an unlawful act if he or she knowingly makes any false statement or claim that he or she is or has been a U.S. citizen or national of the United States, with the intent to obtain on behalf of himself or herself, or any other person, any federal or state benefit or service, or to engage unlawfully in employment in the United States.^[108]

An applicant may lack GMC under this basis if he or she claims to be a U.S. citizen in oral interviews, submitted applications, or submitted evidence. The false claim does not need to be made under oath. The applicant can make the claim to any federal, state, or local official, or even to a private person, such as an employer.^[109]

False claims of U.S. citizenship in order to register to vote or to vote in any federal, state, or local election, or with the intent to obtain any other federal or state benefit or service, may affect an applicant’s GMC as an unlawful act^[110] or as a CIMT.^[111]

USCIS considers an applicant to have falsely claimed to be a U.S. citizen in violation of 18 U.S.C. 1015(f), which may qualify as an unlawful act, in cases where the applicant knowingly^[112] answered “yes” to a question asking whether he or she is a U.S. citizen in order to register to vote. This may apply even if the applicant’s registration to vote was done simultaneously with the process of a driver’s license or identification (ID) card application, or an application for other state benefits. 

However, USCIS does not consider an applicant to have made a false claim to U.S. citizenship in order to register to vote if the applicant was unaware that the false claim would result in his or her voter registration. In addition, an applicant who makes a false claim in a driver’s license or state benefit application, where unconnected to voter registration, does not commit an unlawful act under 18 U.S.C. 1015(f). This is because a violation of 18 U.S.C. 1015(f) requires the applicant to have made a false claim “in order to register to vote or to vote in any Federal, State, or local election.” However, the applicant may have violated 18 U.S.C. 1015(e) or an applicable state law.

USCIS does not consider an applicant to have unlawfully claimed to be a U.S. citizen if the applicant did not affirmatively indicate that he or she is a U.S. citizen. However, if the applicant registered to vote, the applicant has the burden to prove that the registration form did not contain a question about whether the applicant is a U.S. citizen or that the applicant did not indicate, in response to such a question, that he or she is a U.S. citizen.

2. Unlawful Registration to Vote

An applicant who knowingly or willfully registers to vote when the applicant knows that he or she is not eligible to vote may fail to show GMC due to an unlawful act depending on the applicable state law.^[113] 

The National Voter Registration Act of 1993 (NVRA)^[114] directs states^[115] to provide eligible voters with the opportunity to register to vote at the same time they apply for a driver’s license or ID card^[116] at the state’s motor vehicle authority.^[117]

Consequently, the voter registration application has been incorporated into many states’ motor vehicle authority applications for a new or renewed driver’s license or state ID card.^[118] The NVRA also requires states to provide citizens with an opportunity to register to vote when applying to other designated state and local offices, including those that provide public assistance and services to persons with disabilities.^[119]

The portion of the driver’s license, ID card, or other benefit application that permits a person to register to vote generally includes a question asking whether the person is a U.S. citizen and instructions or warnings that indicate a person should not register to vote if he or she is not a U.S. citizen.

Further, the registration form may note that if the person answered “no” to the citizenship question, he or she should not complete the form, as the person is not eligible to register to vote.^[120] Because of these safeguards, ineligible voters are generally not registered to vote, unless they confirm that they are eligible to vote by claiming to be a U.S. citizen.

USCIS does not consider an applicant to have unlawfully registered to vote if the applicant does not complete or sign the voter registration section (including electronic signature, if applicable) in the motor vehicle or other state benefit application.^[121]

In some jurisdictions, noncitizen residents may register to vote and vote in some local elections.^[122] These registrations, however, are made in different applications from the general election registration applications,^[123] and do not require a claim to citizenship. Further, registering to vote on a local voter registration application is not an unlawful act if the applicant is eligible to vote under the relevant law.

3. Unlawful Voting

An applicant commits an unlawful act if he or she votes unlawfully. For unlawful voting, the applicant’s conduct must be unlawful under the relevant federal, state, or local election law.^[124] Voting in a local election is not an unlawful act if the applicant is eligible to vote under the relevant law.

Voting by noncitizens in federal elections is unlawful under 18 U.S.C. 611, unless the election was held partly for some other purpose, noncitizens were authorized to vote for such other purpose under a state or local law, and voting for the other purpose was conducted independently of voting for a candidate for federal office.

4. Documentation and Evidence

Where appropriate, the officer may take a sworn statement regarding the applicant’s false claim to U.S. citizenship, unlawful registration to vote, or unlawful voting. The officer may also request any relevant evidence, including the following:

• The voter registration card;

• Applicable voter registration form or application (in some cases this is part of the application for a driver’s license or state ID);

• Request to be removed from the voter list (if applicable);

• Proof of removal from the voter list (if applicable); and

• Voting record from the relevant board of elections or other authority.

When there is evidence of one of the aforementioned unlawful acts, as with all unlawful acts, the officer must make an assessment regarding whether the act reflects adversely on moral character and must consider any extenuating circumstances. This is in addition to the below exception for false claims to U.S. citizenship and unlawful registration or voting.^[125]

5. GMC Exception for False Claims to U.S. Citizenship and Unlawful Registration or Voting

In 2000, Congress added an exception for GMC determinations for false claims to U.S. citizenship, unlawful registration to vote, and unlawful voting.^[126] An applicant qualifies for an exception if all of the following conditions are met:

• The applicant’s natural or adoptive parents are or were U.S. citizens at the time of the violation;^[127]

• The applicant permanently resided in the United States before reaching the age of 16 years; and

• The applicant “reasonably believed” at the time of the violation that he or she was a U.S. citizen.

To assess whether the applicant “reasonably believed” that he or she was a U.S. citizen at the time of the violation, the officer must consider the totality of the circumstances in the case. This includes weighing such factors as the length of time the applicant resided in the United States and the age when the applicant became a lawful permanent resident (LPR).

Footnotes

---

[^ 1] See INA 316(a). See 8 CFR 316.10.

[^ 2] See INA 101(f). See Chapter 1, Purpose and Background [12 USCIS-PM F.1].

[^ 3] See Medina v. United States, 259 F.3d 220, 227 (4th Cir. 2001), quoting Matter of Danesh (PDF), 19 I&N Dec. 669, 670 (BIA 1988). See Matter of Perez-Contreras (PDF), 20 I&N Dec. 615, 618 (BIA 1992). See Matter of Flores (PDF), 17 I&N Dec. 225 (BIA 1980) (and cases cited therein).

[^ 4] See Matter of Silva-Trevino (PDF), 24 I&N Dec. 687, 688, 706 (A.G. 2008).

[^ 5] See Matter of Esfandiary (PDF), 16 I&N Dec. 659 (BIA 1979).

[^ 6] See Matter of Silva-Trevino (PDF), 24 I&N Dec. 687 (A.G. 2008).

[^ 7] See INA 101(f)(3). See 8 CFR 316.10(b)(2)(i).

[^ 8] See INA 212(a)(2)(A)(ii)(ll).

[^ 9] See Matter of Garcia-Hernandez (PDF), 23 I&N Dec. 590, 594-95 (BIA 2003).

[^ 10] See Chapter 2, Adjudicative Factors, Section F, “Purely Political Offense” Exception [12 USCIS-PM F.2(F)].

[^ 11] See 8 CFR 316.10(b)(2)(ii).

[^ 12] See Chapter 2, Adjudicative Factors, Section F, “Purely Political Offense” Exception [12 USCIS-PM F.2(F)].

[^ 13] See 21 U.S.C. 802 for federal definition of “controlled substance.” For good moral character provisions, see INA 101(f)(3), INA 212(a)(2)(A)(i)(II), and INA 212(a)(2)(C). Also, see 8 CFR 316.10(b)(2)(iii) and (iv). Note that the conditional bar to GMC for a controlled substance violation does not apply if the violation was for a single offense of simple possession of 30 grams or less of marijuana. See Subsection 3, Exception for Single Offense of Simple Possession [12 USCIS-PM F.5(C)(3)].

[^ 14] An admission must comply with the requirements outlined in Matter of K (PDF), 7 I&N Dec 594 (BIA 1957) (establishing requirements for a valid “admission” of an offense); See Chapter 2, Adjudicative Factors, Section E, Admission of Certain Criminal Acts [12 USCIS-PM F.2(E)].

[^ 15] See INA 101(f)(3) and INA 212(a)(2)(C). 

[^ 16] See 21 U.S.C. 802(6). The term “controlled substance” does not include distilled spirits, wine, malt beverages, or tobacco, as those terms are defined or used in subtitle E of the Internal Revenue Code of 1986.

[^ 17] See 21 U.S.C. 802(6). See also Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078 (9th Cir. 2007); Matter of Hernandez-Ponce (PDF), 19 I&N Dec. 613, 616 (BIA 1988); Matter of Mena (PDF), 17 I&N Dec. 38, 39 (BIA 1979); Matter of Paulus (PDF), 11 I&N Dec. 274, 275-76 (BIA 1965).

[^ 18] The paraphernalia offense must be connected to a drug defined in 21 U.S.C. 802. See Mellouli v. Lynch, 135 S.Ct. 1980 (2015). Conviction for, or an admission to the essential elements of a trafficking offense may be considered a Crime Involving Moral Turpitude, which may trigger a bar to a finding of GMC. See INA 101(f)(3). See 8 CFR 316.10(b)(2)(i). See Section A, One or More Crimes Involving Moral Turpitude [12 USCIS-PM F.5(A)].

[^ 19] See, for example, Cal. Health & Safety Code section 11362.5; Colo. Rev. Stat. 44-11-101, et. seq.; Haw. Rev. Stat. sections 329-121 to 329-128; Me. Rev. Stat. Ann., Tit. 22, 2383-B(5); Nev. Rev. Stat. sections 453A.010-453A.810; Ore. Rev. Stat. sections 475.300-475.346.

[^ 20] See, for example, Washington Initiative 502 at section 20, amending RCW 69.50.4013 and 2003 c 53 s 334; Colorado Amendment 64, Amending Colo. Const. Art. XVIII 16(3), Colo Rev. State. Sections 44-12-101, et. seq. These laws are commonly known as permitting certain “recreational use” of marijuana and may include conduct such as use, possession, purchase, transport, and consumption. See, for example, Washington Initiative 502 at section 20, amending RCW 69.50.4013 and 2003 c 53 s 334; Colorado Amendment 64, Amending Colo. Const. Art. XVIII 16(3).

[^ 21] “Marihuana” is defined by the Controlled Substances Act (21 U.S.C. 802(16)):

(A) Subject to subparagraph (B), the term “marihuana” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.

(B) The term “marihuana” does not include –

(i) hemp, as defined in section 297A of the Agricultural Marketing Act of 1946; or

(ii) the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.

[^ 22] See 21 U.S.C. 812(c).

[^ 23] See 21 U.S.C. 812(b)(1)(B).

[^ 24] See 21 U.S.C. 812(b)(1)(B). See 21 U.S.C. 844(a).

[^ 25] See 21 U.S.C. 841(a) (“unlawful for any person knowingly or intentionally…to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.”). See 21 U.S.C. 844 (simple possession). See 21 U.S.C. 802(15) (defining manufacture) and 8 U.S.C. 802(22) (defining production).

[^ 26] See Chapter 2, Adjudicative Factors, Section E, Admission of Certain Criminal Acts [12 USCIS-PM F.2(E)]. See Matter of K- (PDF), 7 I&N Dec. 594 (BIA 1957) (establishing requirements for a valid “admission” of an offense).

[^ 27] The BIA defined “offense” in INA 212(h) as “refer[ring] to the specific unlawful acts that made the alien inadmissible, rather than to any generic crime.” Matter of Martinez Espinoza (PDF), 25 I&N Dec. 118, 124 (2009). Multiple offenses that are parts of a single act and are committed simultaneously may be considered a “single offense.” Matter of Davey (PDF), 26 I&N Dec. 37 (BIA 2012).

[^ 28] See INA 101(f)(3). See 8 CFR 316.10(b)(2)(iii). As explained in subsection 2, the decriminalization of certain activities involving marijuana in certain states and the District of Columbia (D.C.) does not affect the applicability of the controlled substances violation conditional bar to establishing GMC.

[^ 29] See Matter of Martinez Espinoza, 25 I&N Dec. 118 (BIA 2009), abrogated on other grounds by Mellouli v. Lynch, 135 S.Ct. 1980 (U.S. 2015).

[^ 30] See INA 101(f)(7). See 8 CFR 316.10(b)(2)(v).

[^ 31] See Matter of Piroglu (PDF), 17 I&N Dec. 578 (BIA 1980).

[^ 32] See Chapter 2, Adjudicative Factors, Section F, “Purely Political Offense” Exception [12 USCIS-PM F.2(F)].

[^ 33] See INA 101(f)(6). See 8 CFR 316.10(b)(2)(vi).

[^ 34] See Matter of R-S-J-, 22 I&N Dec. 863 (BIA 1999).

[^ 35] See Kungys v. United States, 485 U.S. 759, 780-81 (1988).

[^ 36] See Matter of L-D-E, 8 I&N Dec. 399 (BIA 1959).

[^ 37] See Matter of Ngan, 10 I&N Dec. 725 (BIA 1964). See Matter of G-L-T-, 8 I&N Dec. 403 (BIA 1959).

[^ 38] See Matter of G-, 6 I&N Dec. 208 (BIA 1954).

[^ 39] See INA 101(f)(3) and INA 212(a)(2)(D)(i) and INA 212(a)(2)(D)(ii). See 8 CFR 316.10(b)(2)(vii).

[^ 40] See Matter of T, 6 I&N Dec. 474 (BIA 1955).

[^ 41] See Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008).

[^ 42] See INA 101(f)(3) and INA 212(a)(6)(E). See 8 CFR 316.10(b)(2)(viii).

[^ 43] See INA 212(a)(6)(E)(ii). See Section 301 of the Immigration Act of 1990 (IMMACT90), Pub. L. 101-649 (PDF), 104 Stat. 4978, 5029 (November 29, 1990).

[^ 44] See INA 101(f)(3) and INA 212(a)(10)(A). See 8 CFR 316.10(b)(2)(ix).

[^ 45] Polygamy is not the same as bigamy. Bigamy is the crime of marrying a person while being legally married to someone else. An applicant who has committed bigamy may be susceptible to a denial under the “unlawful acts” provision.

[^ 46] See INA 101(f)(5). See 8 CFR 316.10(b)(2)(x) and 8 CFR 316.10(b)(2)(xi).

[^ 47] See INA 101(f)(1). See 8 CFR 316.10(b)(2)(xii).

[^ 48] See INA 101(f).

[^ 49] See INA 101(f).

[^ 50] For information on “unlawful acts” under 8 CFR 316.10(c)(iii), see Section L, Unlawful Acts [12 USCIS-PM F.5(L)]. As is the case for finding a person lacks GMC “for other reasons,” the statutory authority for the conditional bar to GMC for “unlawful acts” is the last paragraph of INA 101(f).

[^ 51] See INA 101(f). See Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019).

[^ 52] For specific questions on whether the applicant may overcome the presumption, officers should consult the Office of the Chief Counsel.

[^ 53] See Matter of Castillo-Perez, 27 I&N Dec. 664, 671 (A.G. 2019).

[^ 54] See 8 CFR 316.10(b)(3)(i). See Hague Convention on the International Recovery of Child Support.

[^ 55] See Convention on the International Recovery of Child Support and Other Forms of Family Maintenance.

[^ 56] See Brukiewicz v. Savoretti, 211 F.2d 541 (5th Cir. 1954). See Petition of Perdiak, 162 F.Supp. 76 (S.D. Cal. 1958). See Petition of Dobric, 189F.Supp. 638 (D. Minn. 1960). See In re Malaszenko, 204 F.Supp. 744 (D.N.J. 1962) (and cases cited). See Petition of Dobric, 189 F.Supp. 638 (D. Minn. 1960). See In re Huymaier, 345 F.Supp. 339 (E.D. Pa. 1972). See In re Valad, 465 F.Supp. 120 (E.D. Va. 1979). 

[^ 57] See United States. v. Harrison, 180 F.2d 981 (9th Cir. 1950).

[^ 58] See In re Malaszenko, 204 F.Supp. 744 (D. N.J. 1962). See In re Mogus, 73 F.Supp. 150 (W.D. Pa. 1947).

[^ 59] See In re Halas, 274 F.Supp. 604 (E.D. Pa. 1967). See Petition of Dobric, 189 F.Supp. 638 (D. Minn. 1960).

[^ 60] See 8 CFR 316.10(b)(3)(i). 

[^ 61] See Chapter 2, Adjudicative Factors, Section G, Extenuating Circumstances [12 USCIS-PM F.2(G)].

[^ 62] See In re Huymaier, 345 F.Supp. 339 (E.D. Pa. 1972).

[^ 63] See Petition of Perdiak, 162 F.Supp. 76 (S.D. Cal. 1958).

[^ 64] See In re Valad, 465 F.Supp. 120 (E.D. Va. 1979).

[^ 65] See Etape v. Napolitano, 664 F.Supp.2d 498, 517 (D. Md. 2009).

[^ 66] See 8 CFR 316.10(b)(3)(ii).

[^ 67] See Chapter 2, Adjudicative Factors, Section G, Extenuating Circumstances [12 USCIS-PM F.2(G)].

[^ 68] See In re Petition of Schroers, 336 F.Supp. 1348 (S.D.N.Y. 1971). See In re Petition of Russo, 259 F.Supp. 230 (S.D.N.Y. 1966). See Dickhoff v. Shaughnessy, 142 F.Supp. 535 (S.D.N.Y. 1956).     

[^ 69] See INA 101(f). See 8 CFR 316.10(b)(3)(iii). For cases arising in the Ninth Circuit, in addition to extenuating circumstances, USCIS must also consider and weigh all factors relevant to the determination of GMC, which include education, family background, employment history, financial status, and lack of criminal record. See Hussein v. Barrett, 820 F.3d 1083 (9th Cir. 2016).

[^ 70] See United States v. Jean-Baptiste, 395 F.3d 1190 (11th Cir. 2005) (finding that even where a conviction for a crime occurs after naturalization, the applicant lacked the good moral character for naturalization when the crime was committed during the statutory period). Likewise, if the unlawful act is committed outside the statutory period, but the applicant is convicted or imprisoned for the unlawful act during the statutory period, they will be barred from establishing good moral character.

[^ 71] See INA 101(f). See 8 CFR 316.10(b)(3)(iii), 8 CFR 316.10(b)(1), and 8 CFR 316.10(b)(2) (other relevant GMC regulations). See United States v. Jean-Baptiste, 395 F.3d 1190 (11th Cir. 2005).

[^ 72] See INA 101(f) and INA 316(a)(3). See 8 CFR 316.10(b)(3)(iii). 

[^ 73] An admission must comply with the requirements outlined in Matter of K (PDF), 7 I&N Dec 594 (BIA 1957) (establishing requirements for a valid “admission” of an offense). See Chapter 2, Adjudicative Factors, Section C, Definition of Conviction [12 USCIS-PM F.2(C)] and Section E, Admission of Certain Criminal Acts [12 USCIS-PM F.2(E)]. See INA 101(f). See 8 CFR 316.10(b)(3)(iii). Other significant evidence, for example, includes but is not limited to a fine, civil judgment, guilty plea which was later withdrawn after completion of rehabilitation program, voting records, or unexplained discrepancies on tax filings.

[^ 74] See, generally, United States v. Jean-Baptiste, 395 F.3d 1190, 1195 (11th Cir. 2005). 

[^ 75] See Hussein v. Barrett, 820 F.3d 1083 (9th Cir. 2016). 

[^ 76] See Etape v. Napolitano, 664 F. Supp.2d 498, 507 (D. Md. 2009). See Meyersiek v. USCIS, 445 F. Supp.2d 202, 205–06 (D.R.I. 2006) (“Although the words ‘unlawful acts’ are not further defined, the Court interprets them to mean bad acts that would rise to the level of criminality, regardless of whether a criminal prosecution was actually initiated.”). See United States v. Jean-Baptiste, 395 F.3d 1190, 1193 (11th Cir. 2005).

[^ 77] See 8 CFR 316.10(b)(3)(iii). See Chapter 2, Adjudicative Factors, Section E, Admission of Certain Criminal Acts [12 USCIS-PM F.2(E)]. Other relevant, reliable evidence, for example, includes but is not limited to a fine, civil judgment, guilty plea which was later withdrawn after completion of rehabilitation program, voting records, or unexplained discrepancies on tax filings.

[^ 78] See Khamooshpour v. Holder, 781 F.Supp.2d 888, 896 (D. Ariz 2011). See Agarwal v. Napolitano, 663 F.Supp.2d 528, 542 (W.D. Tex 2009).

[^ 79] See Section A, One or More Crimes Involving Moral Turpitude, Subsection 1, Crime Involving Moral Turpitude [12 USCIS-PM F.5(A)(1)].

[^ 80] See United States v. Teng Jiao Zhou, 815 F.3d 639 (9th Cir. 2016) (finding that first degree robbery under California Penal Code, Section 211 was a CIMT and therefore an unlawful act that adversely reflected on one’s moral character). 

[^ 81] See 8 CFR 316.10(a)(2). See Abdi v. U.S. Citizenship and Immigration Services, 923 F.Supp.2d 1160, 1166 (D. Minn. 2013).

[^ 82] See 8 CFR 316.10(b)(3)(iii). See INA 101(f). See Chapter 2, Adjudicative Factors, Section G, Extenuating Circumstances [12 USCIS-PM F.2(G)]. See United States v. Suarez, 664 F.3d 655, 662 (7th Cir. 2011). See United States. v. Lekarczyk, 354 F.Supp.2d 883 (W.D. Wis. 2005).

[^ 83] See United States v. Jean-Baptiste, 395 F.3d 1190, 1195 (11th Cir. 2005) (citing Rico v. INS, 262 F.Supp.2d 6 (E.D.N.Y. 2003).

[^ 84] See United States v. Lekarczyk, 354 F.Supp.2d 883 (W.D. Wis. 2005).

[^ 85] See 8 CFR 316.10(b)(3)(iii).

[^ 86] See INA 101(f). See 8 CFR 316.10(b)(3)(iii). See Chapter 2, Adjudicative Factors, Section G, Extenuating Circumstances [12 USCIS-PM F.2(G)]. For cases under the jurisdiction of the Ninth Circuit Court of Appeals, however, the officer must also consider and weigh the applicant’s evidence relevant to moral character beyond that which precedes or is contemporaneous with and applies directly to the unlawful act. See Hussein v. Barrett, 820 F.3d 1083, 1089-90 (9th Cir. 2016) (finding that the officer must consider all of the applicant’s evidence on factors relevant to the GMC determination to determine if the catch-all provision in the statute precludes the applicant from establishing GMC). In the Ninth Circuit, positive additional factors counterbalance an unlawful act committed in the statutory period if the factors are sufficient to overcome the weight of the negative act.

[^ 87] See United States v. Jean-Baptiste, 395 F.3d 1190, 1195 (11th Cir. 2005).

[^ 88] See United States v. Lekarczyk, 354 F.Supp.2d 883, 887 (W.D. Wis 2005).

[^ 89] See United States v. Lekarczyk, 354 F.Supp.2d 883, 887 (W.D. Wis 2005).

[^ 90] See United States v. Jean-Baptiste, 395 F.3d 1190 (11th Cir. 2005).

[^ 91] See Etape v. Napolitano, 664 F.Supp.2d 498 (D. Md. 2009).

[^ 92] See, for example, 18 U.S.C. 1001.

[^ 93] See United States v. Lekarczyk, 354 F.Supp.2d 883, 887 (W.D. Wis 2005).

[^ 94] See United States v. Salama, 891 F.Supp.2d 1132, 1140-41 (E.D. Cal. 2012).

[^ 95] See Etape v. Napolitano, 664 F.Supp.2d 498 (D. Md. 2009).

[^ 96] See United States v. Okeke, 671 F.Supp.2d 744 (D. Md. 2009).

[^ 97] See Etape v. Napolitano, 664 F.Supp.2d 498 (D. Md. 2009).

[^ 98] See Sabbaghi v. Napolitano, 2009 WL 4927901 (W.D. Wash. 2009) (unpublished).

[^ 99] See Khamooshpour v. Holder, 781 F.Supp.2d 888, 896-97 (D. Ariz 2011).

[^ 100] See Subsection 2, Case-by-Case Analysis [12 USCIS-PM F.5(L)(2)]. See Hussein v. Barrett, 820 F.3d 1083 (9th Cir. 2016).

[^ 101] Examples of material facts include marital status, number of dependents, and income.

[^ 102] Examples of such unlawful acts include attempt to defraud the IRS by avoiding taxes in violation of 26 U.S.C. 7201 or 26 U.S.C. 6663 or filing a false document under penalties of perjury in violation of 26 U.S.C. 7206(1). See Carty v. Ashcroft, 395 F.3d 1081 (9th Cir. 2005) (state failure to pay taxes; evasion is same as fraud). See Wittgenstein v. INS, 124 F.3d 1244 (10th Cir. 1997) (state crime). See Matter of M‑ (PDF), 8 I&N Dec. 535 (BIA 1960) (conspiracy to defraud the U.S. government by avoiding taxes is a CIMT). See Matter of E‑ (PDF), 9 I&N Dec. 421 (BIA 1961).

[^ 103] For information regarding exceptions, see Subsection 5, GMC Exception for False Claims to U.S. Citizenship and Unlawful Registration or Voting [12 USCIS-PM F.5(M)(5)].

[^ 104] See 18 U.S.C. 1015(f), which requires the applicant to have made a false claim “in order to register to vote or to vote in any Federal, State, or local election.” Falsely claiming U.S. citizenship for purposes other than voting or registering to vote may be an unlawful act only if a federal or state law applies to make the conduct unlawful. See 18 U.S.C. 1015(e) (false claims to citizenship with the intent to obtain any federal or state benefit or service, or to engage unlawfully in employment in the United States).

[^ 105] See 18 U.S.C. 1015(e).

[^ 106] For example, see the laws of Arizona (Arizona 16-182), Mississippi (Miss. Code. Ann. 97-13-25), New Jersey (N.J. Stat. Ann. 19:34-1), Puerto Rico (16 L.P.R.A. 4248), and Utah (Utah Code Ann. 20A-2-401). Officers should consult with USCIS counsel for any questions concerning whether an applicant has committed an unlawful act by registering to vote.

[^ 107] USCIS defines noncitizen as a person without U.S. citizenship or nationality. See USCIS Glossary (defining noncitizen as “[a] person without U.S. citizenship or nationality (may include a stateless person). This term is synonymous with “alien” as defined in INA 101(a)(3) (8 U.S.C. 1101(a)(3)).”). It is unlawful for a noncitizen to vote in a federal election unless the election was held partly for some other purpose, noncitizens were authorized to vote for such other purpose under a state or local law, and voting for the other purpose was conducted independently of voting for a candidate for federal office. See 18 U.S.C. 611 (voting by noncitizens for federal offices).

[^ 108] See 18 U.S.C. 1015(e).

[^ 109] For example, the applicant could make a false claim to U.S. citizenship to comply with the employment verification requirements under INA 274A or for tax credit purposes.

[^ 110] See 18 U.S.C. 1015(f) (false claim to U.S. citizenship to vote or register to vote). For exceptions see Subsection 5, GMC Exception for False Claims to U.S. Citizenship and Unlawful Registration or Voting [12 USCIS-PM F.5(M)(5)].

[^ 111] See 18 U.S.C. 1015(e) and 18 U.S.C. 1015(f). See INA 101(f)(3) (one or more CIMTs), as discussed in Section A, One or More Crimes Involving Moral Turpitude [12 USCIS-PM F.5(A)].

[^ 112] In contrast to a false claim to U.S. citizenship under the unlawful acts analysis, where the false claim must be “knowing,” a noncitizen may be inadmissible or removable based on a false claim to U.S. citizenship even if the noncitizen mistakenly believed he was a U.S. citizen. See Matter of Zhang, 27 I&N Dec. 569 (BIA 2019). For more information, see Volume 8, Admissibility, Part K, False Claim to U.S. Citizenship [8 USCIS-PM K].

[^ 113] For example, see the laws of Arizona (Arizona 16-182), Mississippi (Miss. Code. Ann. 97-13-25), New Jersey (N.J. Stat. Ann. 19:34-1), Puerto Rico (16 L.P.R.A. 4248), and Utah (Utah Code Ann. 20A-2-401). Officers should consult with USCIS counsel for any questions concerning whether an applicant has committed an unlawful act by registering to vote.

[^ 114] See Pub. L. 103-31 (PDF), 107 Stat. 77 (May 20, 1993) (codified at 52 U.S.C. 20501-20511). For more information about the NVRA, see the U.S. Department of Justice (DOJ)’s About the National Voter Registration Act webpage.

[^ 115] The NVRA applies to 44 States. Certain states (Idaho, Minnesota, New Hampshire, North Dakota, Wisconsin, and Wyoming) and territories (Puerto Rico, Guam, Virgin Islands, American Samoa) are exempt from the NVRA. For more information, see DOJ’s About the National Voter Registration Act webpage.

[^ 116] See 52 U.S.C. 20504 (Section 5 of the NVRA).

[^ 117] This includes departments of motor vehicles or equivalent state agencies. Because of the requirement for motor vehicle authorities to participate in voter registration, the NVRA is often referred to as the “Motor Voter” law.

[^ 118] See, for example, California’s Driver License Renewal (PDF) and New York’s Application for Permit, Driver License or Non-driver ID Card (PDF).

[^ 119] See 52 U.S.C. 20506 (Section 7 of the NVRA). See, for example, New York’s Apply for SNAP webpage.

[^ 120] See, for example, New Jersey Voter Registration Application (PDF) webpage and Colorado’s Driver License or ID Card Renewal by Mail and Voter Registration (PDF) webpage.

[^ 121] If a person was registered to vote as a result of their application for a driver’s license, ID card, or other state benefit, and did not complete or sign a voter registration section in the application, this may be an indication that the registration to vote was not done knowingly or willfully.

[^ 122] See, for example, Maryland municipalities of College Park, Hyattsville, Mount Rainier, and Takoma Park, which allow noncitizens to vote in municipal elections. See City of College Park, MD’s City Elections webpage. Also, the city of San Francisco, CA allows noncitizens to vote in school board elections. See San Francisco Municipal Elections Code, Article X, Sections 1001-1005.

[^ 123] See, for example, City of Takoma Park, MD’s Voter Registration Application (PDF).

[^ 124] The officer should consider the controlling statutes in cases involving potential unlawful voting offenses, as some local municipalities permit LPRs or other noncitizens to vote in municipal elections.

[^ 125] See 8 CFR 316.10(b)(3)(iii). See United States v. Suarez, 664 F.3d 655, 662 (7th Cir. 2011). See United States v. Lekarczyk, 354 F.Supp.2d 883 (W.D. Wis. 2005). See INA 101(f). See Chapter 2, Adjudicative Factors, Section G, Extenuating Circumstances [12 USCIS-PM F.2(G)].

[^ 126] See INA 101(f). These provisions were added by the Child Citizenship Act of 2000 (CCA), but they apply to all applications filed on or after September 30, 1996. See Section 201(a)(2) of the CCA, Pub. L. 106-395 (PDF), 114 Stat. 1631, 1636 (October 30, 2000).

[^ 127] As a matter of policy, USCIS has determined that the applicant’s parents had to be U.S. citizens at the time of the false claim to U.S. citizenship, unlawful registration, or unlawful voting in order to meet the first prong of this exception.