Connecticut Judicial Branch
Common Legal Words
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A
AKA: “Also known as”. Used to list aliases or another name, or another spelling of a name used by a person.
Accelerated Rehabilitation: (PDF) Also called AR. A program that gives persons charged with a crime or motor vehicle violation for the first time a second chance. The person is placed on probation for up to two years. If probation is completed satisfactorily, the charges are dismissed.
Acknowledgment: The signature of a clerk or attorney certifying that the person signing the document has signed by his or her free act and for the purposes set forth therein.
Action: Also called a case or lawsuit. A civil judicial proceeding where one party sues another for a wrong done, or to protect a right or to prevent a wrong.
Adjournment: Postponement of a court session until another time or place.
Adjudication: A decision or sentence imposed by a judge.
Adjudicatory Hearing: Juvenile court proceeding to determine whether the allegations made in a petition are true and whether the child/youth should be subject to orders of the court.
Adult Court Transfer: The transfer of juveniles who are at least fourteen years old to regular criminal dockets in Geographical Area or Judicial District courts. Also involves the transfer from a Juvenile Residential Center to the State Department of Correction.
Adult Probation: A legal status, applied to people 16 years of age and older, who have been convicted of a crime and placed under the supervision of a probation officer for a period of time set by the court.
Affirmation: Declaring something to be true under the penalty of perjury by a person who will not take an oath for religious or other reasons.
Affidavit: A written statement made under oath, swearing to the truth of the contents of a document.
Alcohol Education Program: (PDF) A pre-trial program for first time offenders charged with driving a motor vehicle under the influence of alcohol.
Alford Doctrine: A plea in a criminal case in which the defendant does not admit guilt, but agrees that the state has enough evidence against him or her to get a conviction. Allows the defendant to enter into a plea bargain with the state. If the judge accepts the Alford Plea, a guilty finding is made on the record.
Alimony: Money a court requires one spouse to pay the other spouse for support before and/or after the divorce is granted. If you do not ask for alimony at the final hearing, you can never get it in the future.
Allegation: Saying that something is true. The assertion, declaration or statement of a party in a case, made in a pleading.
Alternate Juror: A juror selected as a substitute in case another juror must leave the jury panel.
Alternative Detention Program: Programs operated by service providers under the Office of Alternative Sanctions used to detain juveniles instead of in a Juvenile Residential Center.
Alternative Dispute Resolution: Also called ADR. Any method used to resolve disputes other than traditional trial proceedings. For example, mediation. ADR programs speed up the disposition of civil cases.
Alternative Incarceration Center: Also called AIC. A community based program that provides monitoring, supervision and services to people who would otherwise be incarcerated.
Alternative Sanctions : Criminal punishment that is less restrictive than incarceration.
Amicus Curiae brief: (PDF) A Latin term meaning “friend of the court.” An Amicus Curiae brief is filed by someone who is not a party to a case but has an interest in its outcome. A person who wants to file an amicus curiae brief usually has to get the court’s permission to do so.
Annulment : A court order declaring that a marriage is invalid.
Answer : A court document, or pleading, in a civil case, by which the defendant responds to the plaintiff’s complaint.
Appeal : Asking a higher court to review the decision or sentence of a trial court because the lower court made an error.
Appeal Bond: Money paid to the court while taking an appeal to cover costs and damages to the other party, if the appeal is not successful.
Appearance: (PDF)The official court form filed with the court clerk which tells the court that you are representing yourself in a lawsuit or criminal case or that an attorney is representing you. All court notices and calendars will be mailed to the address listed on the form. When a defendant in a civil case files an appearance, the person is submitting to the court’s jurisdiction.
Appellant: The party appealing a decision or judgment to a higher court.
Appellee: The party against whom an appeal is taken.
Arbitration: Submitting a case or dispute to designated parties for a decision, instead of using a judge.
Arraignment: (PDF) The first court appearance of a person accused of a crime. The person is advised of his or her rights by a judge and may respond to the criminal charges by entering a plea. Usually happens the morning after a person is arrested.
Arrest: When a person is taken into custody by a police officer and charged with a crime.
Arrearages: (PDF) Money for alimony and/or child support, which is overdue and unpaid.
Assignment List : (PDF) A printed list of cases to be presented to the court for hearing.
Assistant Attorney General: An attorney who represents a state agency in civil cases.
Attachment: A lien on property or assets to hold it to pay or satisfy any final judgment.
Attorney of Record: Attorney whose name appears in the permanent records or files of a case.
Automatic Orders: (PDF) Court orders that take effect when a divorce or custody case is started.
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B
Bail : Also called Bond. Money or property given to the court for the temporary release of a defendant, to ensure that the defendant will return to court.
Bail Bondsperson: A person who lends money to a defendant to pay for bail.
Bail Commissioner : (PDF) A state-appointed person who may set the amount of bond for persons detained at a police station prior to arraignment in court, and who recommends to the court the amount of bond that should be set for the defendant on each criminal case.
Bar: Refers to attorneys as a group.
Best Interest of the Child: (PDF) The standard a judge uses to decide custody and visitation issues.
Bench Warrant: Court papers issued by the judge, “from the bench,” for the arrest of a person.
Bond : Also called bail. Money or property given to the court for the temporary release of a defendant, to ensure that the defendant will return to court. There are two kinds of bonds:
Non-financial bonds:
a) Non-surety bond where the defendant’s signature alone guarantees the amount of bond and the defendant is not required to post any property or retain the services of a professional bail bondsperson as collateral.
b) Promise to appear.
Surety bond: The court requires cash, real estate or a professional bail bondpersons signature as collateral before releasing the defendant back into the community. (The court may allow the defendant to post ten percent of the bond in cash to secure his or her release.)
Bond Forfeiture (calling the Bond): If the defendant fails to appear in court as scheduled, the judge may order the bond forfeited (paid to the state) and the defendant rearrested.
Bond Review: A hearing for a judge to decide if the defendant’s bond amount needs to be changed.
Bondsman: A surety; one who has put up cash or property as collateral before a defendant may be released.
Brief: A written document prepared by a lawyer or party on each side of a dispute and filed with the court in support of their arguments.
Broken Down Irretrievably: The most common reason for granting a divorce. It means there is no hope of the husband and wife getting back together again. Also known as “no-fault” divorce.
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C
Calendar: A list of court cases scheduled for a specific date and time; the civil and family court docket.
Calendar Call: The calling of cases scheduled for the day, usually done at the beginning of each court day.
Capias Mittimus: A civil arrest warrant used to get a person physically into court to respond to a specific case or claim.
Capital Felony: A criminal offense in which the death penalty may be imposed. Effective April 25, 2012, this term was replaced in the General Statutes with murder with special circumstances. (C.G.S. 53a-54b).
Case: A lawsuit or action in a court.
Case Conference: A meeting scheduled by the court to review the case.
Case File: The court file containing papers submitted in a case.
Case Flow Coordinator: A person who keeps track of your case and supervises the scheduling of hearings and trials.
Central Transportation Unit: Persons in the Division of Juvenile Residential Services who provide safe and secure transportation services for juveniles detained at Juvenile Residential Centers, Alternative Detention Program and Girls’ Detention Program.
Certify: To testify in writing; to make known or establish as a fact.
CGS: Abbreviation for Connecticut General Statutes
Challenge: Rejecting a potential juror.
Charge: Formal accusation of a crime.
Charge to Jury: In trial practice, an address delivered by the court to the jury at the close of the case instructing the jury as to what principles of law they are to apply in reaching a decision. Civil | Criminal
Chattels: All property except real property; personal property. For example: jewelry, clothing, furniture, and appliances.
Child: Any person under the age of sixteen (16) years of age.
Child Support : Money paid by a parent to help meet the financial needs of a child.
The “ Chip Smith Charge ” is an instruction to deadlocked jurors in civil and criminal cases, urging those jurors who disagree with the majority vote to reexamine the majority views in an effort to reach a unanimous verdict.
CIP: Children in Placement- a voluntary program in Juvenile Court, which monitors neglect, cases.
Civil Action: A lawsuit other than a criminal case usually filed in a Judicial District courthouse. Includes family actions (divorces, child support, etc) and small claims cases, although these are both separately designated.
Claim: In civil cases, the statement of relief desired.
Classification and Program Officer: Also called CPO. A person who provides classification, program, counseling and recreational services to detained juveniles. May attend certain court hearings in Juvenile Matters and provide reports.
Common Law: Laws that develop through case decisions by judges. Not enacted by legislative bodies.
Community Service: Work that convicted defendants are required to perform in order to repay the community for the harm caused to the community by the crime.
Community Services Coordinator: The person who refers a defendant to community service work and supervises the defendant’s completion of that work.
Community Service Labor Program : (PDF) Also called CSLP. A community service program for persons charged with drug offenses. Upon successful completion of the community service sentence, the criminal case is dismissed.
Complaint: A legal document that tells the court what you want, and is served with a summons on the defendant to begin the case.
Complex Litigation: A specialized docket designed for complex civil cases, where one judge hears the case from beginning to end. Criteria includes: multiple parties, large amounts of money, lengthy trial or complex legal issues.
Conditional Discharge: A disposition, in criminal cases, where the defendant must satisfy certain court-ordered conditions instead of a prison term.
Contempt of Court: A finding that someone disobeyed a court order. Can also mean disrupting court, for example, by being loud or disrespectful in court.
Continuance: The adjournment or postponement of a court case to another day.
Continuance Date: Date on which the case will next be heard in court.
Contract: A legally enforceable agreement between two or more persons or parties.
Conviction: To be found guilty of committing a crime.
Costs: Expenses in prosecuting or defending a case in court. Usually does not include attorney’s fees.
Count: The different parts of a complaint, which could each be a basis or grounds for the lawsuit.
Counter Claim: A claim by the defendant in a civil action that the defendant is entitled to damages or other relief from the plaintiff.
Court-Appointed Attorney: An attorney who is asked by the court (judge) to either represent a party to the case, or to serve in some other capacity that the case requires.
Court Clerk: The person who maintains the official court record of your case. The court clerks’ office receives all court papers and assigns hearing dates.
Court Interpreter : (PDF) The person who translates court hearings from English to another language. Provided at state expense in all criminal cases and in cases enforcing child support orders, if requested. No interpreter is available for divorce or any other civil case.
Court Monitor: The person who prepares a written record of the court hearing for a fee, if requested, from audiotapes made during the hearing.
Court Reporter: The person who records everything said during the court hearing on a stenograph machine and prepares a written record for a fee, if requested.
Court Services Officer: A person who assists the judge and oversees cases as they go through the court.
Court Trial: Trial by a judge, rather than by a jury.
Crime Victim Compensation Program: Awards money to crime victims and their families for medical, mental health, dental, funeral expenses, lost wages and loss of support.
Cross-Examination: Questioning by a party or the attorney of an adverse party or a witness.
Custody : A court order deciding where a child will live and how decisions about the child will be made. Parents may ask for any custody arrangement that they believe is in the best interest of their child.
Custody Affidavit: (PDF) A sworn statement containing facts about a child involved in a case, including full name of the child, date of birth, current and past residences and other information as may be required by law.
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D
Damages: Money a party receives as compensation for a legal wrong.
Day Incarceration Center: Also called DIC. A community based program that provides monitoring, supervision and services to people who would otherwise be incarcerated. Day Incarceration Center clients are supervised during the daytime hours, seven days per week.
Declaration: An unsworn statement of facts made by a party to the transaction, or by one who has an interest in the facts recounted.
Default : To fail to respond or answer to the plaintiff’s claims by filing the required court document; usually an Appearance or an Answer.
Defendant: In civil cases, the person who is given court papers, also called a respondent. In criminal cases, the person who is arrested and charged with a crime.
Delinquent: In civil or family cases, failing to pay an amount of money when due: In juvenile cases, a child who violated a law, local ordinance, or an order of the Superior Court.
Deposition: Testimony of a witness taken, under oath, in response to another party’s questions. Testimony given outside the courtroom, usually in a lawyer’s office. A word for word account (transcript) is made of the testimony.
Detention Hearing or Detention Release Hearing: A hearing on the first business day after a juvenile is admitted to a Juvenile Residential Center concerning the legality and appropriateness of continued detention of the juvenile. The detention decision must be reviewed at least every fifteen days.
Discovery: A formal request by one party in a lawsuit to disclose information or facts known by other parties or witnesses.
Dismissal: A judge’s decision to end the case.
Dismissal Without Prejudice: A judges decision to end the case which permits the complainant or prosecutor to renew the case later. In contrast, dismissal “with prejudice” prevents the complainant or prosecutor to bring or maintain the same claim or action again.
Dispose: Ending a legal case or a judicial proceeding.
Disposition: The manner in which a case is settled or resolved.
Dissolution:The legal end of a marriage, also called a divorce.
Diversionary Programs : (PDF) Community based programs that are used to keep eligible, convicted criminal offenders out of prison.
Docket: A list of cases scheduled to be heard in court on a specific day or week.
Docket Number: A unique number the court clerk assigns to a case. It must be used on all future papers filed in the court case. Each docket number starts with two letters that tell the type of case. CI = criminal infraction; CR = criminal case; CV = civil case; FA = family case; MI = motor vehicle infraction; MV= motor vehicle case; SC = small claims.
Domicile: The permanent home of a person. A person may have several residences, but only one domicile.
Drug Court: A Special Session of the Superior Court that is responsible for hearing cases involving charges of drug offenses.
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E
Education Program: (PDF) A program for family violence offenders that, if granted and successfully completed, results in dismissal of criminal charges (C.G.S. §46b-38c).
Ejectment: A legal case filed against someone who is a holdover tenant (someone who remains after the expiration of a lease).
Electronic Monitoring: An electronic system that provides the Probation Officer or Bail Commissioner a report about whether the offender has left home during the time when the offender was required to remain at his or her home.
Emancipated Minor: A person under the legal majority age of 18 who is granted most rights and legal privileges of an adult (C.G.S.§46b-150, et seq.).
Emancipation: The release of a youth from the legal authority and control of the youth’s parents and the corresponding release of the youth’s parents from their obligations to the youth.
Eminent Domain: The legal process by which private property is taken for public use without the consent of the owner.
Eviction: Legally forcing a tenant out of rented property. ( Housing Publications )
Evidence : (PDF) Testimony, documents or objects presented at a trial to prove a fact.
Ex Parte: Done for, or at the request of, one side in a case only, without prior notice to the other side.
Execution Suspended: A prison sentence that is suspended in whole or in part provided certain conditions of probation or conditional discharge are met by the defendant.
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F
Failure to Appear: In a civil case, failing to file an Appearance form. In a criminal case, failing to come to court for a scheduled hearing.
Family Relations Counselor: A person who mediates disagreements and negotiates agreements in custody, visitation and divorce cases. At the request of the judge, a family relations counselor may evaluate a family situation by interviewing each parent and the children in the family. The family relations counselor then writes a report for the judge, making recommendations about custody and visitation. Works in the Family Services Office.
Family Support Magistrate : A person who decides cases involving child support and paternity. Can also enforce court orders involving paternity, child support and alimony.
Family Violence Education Program : (PDF) A program for family violence offenders that if successfully completed, results in the dismissal of criminal charges.
Family Violence Victim Advocate: A person who works with domestic violence victims to determine their needs and inform them of their rights and resources available to them.
Family With Service Needs: Also called FWSN. A family that includes a child, who (a) runs away without just cause, (b) is beyond the control of his/her parents/guardian, (c) has engaged in indecent or immoral conduct, and/or (d) is a truant or continuously defiant of school rules and regulations.
Felony: Any criminal offense for which a person may be sentenced to a term of imprisonment of more than one year.
Felony Murder: A murder committed while the person is also committing a felony.
Filing: Giving the court clerk legal papers which become part of the case file.
Financial Affidavit: Short (PDF) | Long (PDF) – A sworn statement of income, expenses, property (called assets) and debts (called liabilities).
Finding: The court’s or jury’s decision on issues of fact.
Foreclosure: A court order ending the legal ownership of property.
Foreman : An elected member of a jury who delivers the verdict to the court.
Chapter 5 – Conditional Bars for Acts in Statutory Period
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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 and the alien may be able to later naturalize if able to establish good moral character. 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 alien’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 alien 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.
| 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.
| 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 alien who is convicted of or admits to committing one or more CIMTs during the statutory period cannot establish GMC for naturalization.[7] If the alien 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 alien 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 alien 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 alien 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 alien 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 alien 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 alien 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 alien 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 alien’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 alien 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 alien, may preclude a finding of GMC for the alien 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 alien 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 alien 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 alien 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 alien who gives false testimony to obtain any immigration benefit during the statutory period cannot establish GMC.[33] False testimony occurs when the alien 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 alien’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 alien must be providing the false testimony in order to obtain an immigration benefit. False testimony for any other reason does not preclude the alien from establishing GMC.
F. Prostitution
An alien 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 alien 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.[42]
Family Reunification Exception
This bar to GMC does not apply in certain cases where the alien 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 alien 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 alien brings to the interview for information about the alien’s marital history, to include any visa petitions or applications, marriage and divorce certificates, and birth certificates of children.
I. Gambling
An alien 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 alien 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 alien 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 alien 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 alien lacks GMC.[51] The rebuttable presumption may be overcome[52] if the alien 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 alien’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 alien who willfully failed or refused to support his or her dependents during the statutory period cannot establish GMC unless the alien establishes extenuating circumstances.[54] The GMC determination for failure to support dependents includes consideration of whether the alien 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 alien 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 alien has not complied with court-ordered child support and is in arrears, the alien 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 alien established GMC.[60]
Extenuating Circumstances
If the alien shows extenuating circumstances, a failure to support dependents should not adversely affect the GMC determination.[61]
The officer should consider the following circumstances:
- An alien’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]
