Reforming the Good Moral Character Requirement for U.S. Citizenship

This Article explores the impact of the convergence of criminal law and immigration law on the most valued government benefit in the land: citizenship. Specifically, it examines how criminal history influences the opportunity to naturalize through the good moral character requirement for U.S. citizenship. Since 1790, naturalization applicants have been required to prove their good moral character. Enacted to ensure that applicants were fit for membership and would not be disruptive or destructive to the community, the character requirement also allowed for the reformation and eventual naturalization of those guilty of past misconduct. This Article shows that recent changes in immigration law and the handling of naturalization petitions by the United States Citizenship and Immigration Services (USCIS) have turned the good moral character requirement into a powerful exclusionary device. Since 1990, Congress has added hundreds of permanent, irrebuttable statutory bars to a good moral character finding based on criminal conduct. Where no bar applies, examiners may still deny an applicant on character grounds in their discretion, which they are doing with management encouragement and increasing frequency. The effect is the creation of bars to citizenship not found in the statute, subverting the statutory and regulatory scheme governing naturalization. The expressively punitive nature of the current good moral character provision and USCIS’s misguided priorities in handling naturalization applications force legal resident immigrants with criminal histories to permanently live in the shadows of full membership, never able to possess the full rights, privileges, and respect that citizenship can bring. The Article argues that a robust, inclusive notion of citizenship remains necessary despite its apparent diminishment in the twenty-first century world. Informed by insights from sociological research on community cohesion and criminological findings on desistance, it shows why there must be space for those residents with a criminal past to demonstrate their current fitness for membership. It urges statutory and agency reforms that would realign the good moral character requirement with its historical purpose and understanding and promote a naturalization scheme that, at no cost to public safety, promotes social cohesion and advances democracy and equality by making redemptive citizenship possible