06 Mar Does false testimony constitute a bar to good moral character in naturalization application?
We will discuss false testimony and other conditional bars to good moral character in this article.
Q: Does false testimony constitute bar to good moral character?
A: An applicant who gives false testimony to obtain any immigration benefit during the statutory period cannot establish good moral character (GMC). 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.
Q: What other acts constitute false testimony?
A: 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.
Q: What are the elements that constitute false testimony?
A: 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, namely:
1. 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.” However, false information provided orally under oath to an officer in a question-and-answer statement relating to a written application is “testimony.” The oral statement must also be an affirmative misrepresentation. The Court makes it clear that there is no “false testimony” if facts are merely concealed, to include incomplete but otherwise truthful answers.
2. Oath — The oral statement must be made under oath in order to constitute false testimony. Oral statements to officers that are not under oath do not constitute false testimony.
3. 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.
Q: Does prostitution constitute a conditional bar?
A: 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. The BIA has held that to “engage in” prostitution, one must have engaged in a regular pattern of behavior or conduct. The BIA has also determined that a single act of soliciting prostitution on one’s own behalf is not the same as procurement.
Q: Does smuggling a person constitute a conditional bar?
A: 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 alien to enter or try to enter the United States in violation of law during the statutory period.
Q: Is there an exception to this?
A: 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.
Q: What if I practice polygamy?
A: An applicant who has practiced or is practicing polygamy during the statutory period is precluded from establishing GMC. Polygamy is the custom of having more than one spouse at the same time. 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.
Q: Is gambling also included?
A: 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. The gambling offenses must have been committed within the statutory period.
Q: Can my habitual drinking bar me from GMC?
A: An applicant who is or was a habitual drunkard during the statutory period is precluded from establishing GMC. 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.
Note: This is not a legal advice.