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Interpretation 316.1 (g)
Good moral character under section 101(f)
Congressional intent that moral character standards be uniform
. Uniformity of good moral character standards to the extent possible was considered desirable by the framers of the current statute,
/ who included in section 101(f) provisions which conclusiverly preclude a finding of good moral character in the event of certain specified behavior or criminal misconduct.
Congressional intent that misconduct not invoking the section's bar may nonetheless be considered in determining good moral character
. The last sentence of section 101(f) denotes a congressional intent that the same misconduct deemed insufficient to invoke the bar of that section may nevertheless be considered in determining whether good moral character is lacking for naturalization and other purposes. Thus the respondent in a deportation proceeding was denied the privilege of voluntary departure when he refused to state whether he had ever filed an income tax return on his earnings. A Court of Appeals, in affirming the administrative ru
ling, held that the non-filing of income tax returns would have a definite bearing on the question of good moral character.
/ Also, where it was assumed in a section 245 case that illicit sexual intercourse did not amount to adultery within the meaning of former section 101(f)(2), and that the section's bar did not apply, the applicant was found to lack good moral character upon the basis of such sexual misconduct.
Preface. Prior to Act of December 29, 1981
. Prior to its repeal
/ this section mandatorily precluded a finding of good moral character required to obtain certain benefits under the current statute, if the person seeking such benefits had committed adultery during the relevant statutory period.
/ As viewed by the courts between 1952 and 1981 this apparently simple proposition became complicated as a result of various decisions construing section 101(f)(2). These decisions must be considered in every case involving possible adultery. However, while the Service will apply such decisions only to the extent indicated in the paragraphs which follow, decisions contra to the Service position shall also be brought to the attention of the courts. (
Law applied in determining whether a sexual act was adultery
. The Immigration and Nationality Act of 1952 did not define the term "adultery," or specify the method to be used in determining that a sexual act was adulterous for purposes of section 101(f)(2).
/ It was the administrative position, supported by judicial authority, that in the absence of a federal law defining adultery, that the law of the state in which the sexual act was committed would determine whether such act constituted adultery, as defined in those laws and the judicial interpretations thereof.
/ It has been noted that there was nothing in the legislative history of the statute to indicate Congressional intent to depart from past judicial rulings relying upon state law.
/ As to whether a finding of the commission of adultery under state law, of itself, invoked the provisions of section 101(f)(2), see subdivisions (v), (vi), and (vii) hereinafter. (
Definitions of adultery under state law differ
. The definitions of adultery under the laws of the various states are even today not uniform. Primarily, however, the difference in definition pertains to the crime of adultery as distinguished from adultery for civil purposes. (
Under common law, extra-marital intercourse did not constitute civil adultery unless the female participant was married, in which event the other party to the act, whether married or not, committed civil adultery.
/ Generally, throughout the United States, statutes or decisions have defined civil adultery as the sexual intercourse between any married male or female and a person other than the lawful spouse. Married participants in the sexual intercourse, without regard to their sex, commit adultery in its civil context under prevailing state law.
Adultery was not a crime under common law.
/ It has been defined for criminal purposes in some jurisdictions as the voluntary sexual intercourse of two persons, either of whom is married to a third person.
/ However, under another state statute, such sexual intercourse must amount to cohabitation in order to be criminally adulterous.
/ In a third state, criminal adultery also requires cohabitation with the sexual intercourse or, alternatively, that the sexual intercourse be habitual.
/ Sexual intercourse by a married person with one other than the lawful husband or wife constitutes the crime of adultery in a fourth state, provided there is open and notorious cohabitation.
State statutes defining criminal adultery also differ in the extent to which an unmarried participant in the sexual intercourse may be guilty of the crime.
/ Where both participants are lawfully married, each to another person, both participants are criminally culpable.
/ In some states, an unmarried partner will also be guilty of adultery
/ while, in other jurisdictions, he or she will not be considered criminally liable.
/ The penal laws in a few states.
/ also have defined criminal adultery in terms of the common-law definition of civil adultery and, in these jurisdictions, the single or married male participant in the sexual act, as well as the married female will be guilty of the crime of adultery.
The administrative viewpoint that, in the first instance, the laws of the individual states, whether statutory or decisional, had to be consulted to determine whether adultery had been committed, was supported by some courts.
/ However, most authorities rejected this view in favor of a judicially created meaning of the term "adultery" for section 101(f)(2) purposes. Those courts, declining to rely upon different definitions prevailing in the several states because they allegedly promoted a lack of uniformity in application, evolved "uniform federal standards" in the interpretation of section 101(f)(2).
Thus, it was held that Congress, in using the word "adultery," was expressing concern over extramarital intercourse which tended to destroy an existing, viable marriage and which represented a threat to public morality, and that where adultery was shown, but without the presence of these elements, section 101(f)(2) did not preclude a showing of good moral character.
Similarly, with some modification of the "federal standard," it was held that the misconduct which tended to destroy an existing, viable marriage, had to evidence disregard of marital vows and responsibilities, rather than requiring that it had been coupled with a threat to the public morality, so that isolated acts of intercourse which did not amount to cohabitation, and occurred after that person's spouse had unjustifiably abandoned the marital relationship, did not constitute adultery, as that term was
used in section 101(f)(2).
The distinction between criminal and civil adultery was not a decisive factor in determining whether section's bar attached
. The Board of Immigration Appeals held that adultery, for purposes of section 101(f)(2) did not have to meet the test of criminal adultery, and that it was sufficient if the sexual acts were within the definition of civil adultery.
/ relying in part upon the California adultery statute, implied that only criminal adultery fell within the ambit of section 101(f)(2), thereby raising the possibility that, in that circuit, the distinction between criminal and civil adultery may have been crucial in determining whether the bar of section101(f)(2) applied.
/ On the other hand, it was held that only civil, rather than criminal, adultery invoked the section's bar.
/ The Service adhered to the view that either civil or criminal adultery came within section 101(f)(2). (
However, in a case involving adultery constituting cohabitation and, therefore, criminal adultery under California law, a majority of the Board, within the framework of
, did not regard that fact as sufficient to invoke the section's bar, in the absence of other circumstances.
/ The same position was taken by a Federal court.
/ Accordingly, the fact that sexual misconduct which amounted to criminal adultery, standing alone, could not be regarded as decisive of the issue. (
Section's bar was inapplicable to certain types of technical adultery
. Although sexual acts amounted to adultery under state statutes in some cases, the special circumstances surrounding their commission prompted the courts and administrative authority to classify such acts as "technical adultery," and regarded a participant as a person of good moral character notwithstanding the bar of section 101(f)(2). (
Accordingly, the Service held that where a party contacted a marriage in good faith, without knowledge that the other party thereto was still married to another person, the section's bar did not attach to the innocent party, even though the ensuing marital relationship was adulterous because of the earlier existing marriage.
Similarly, the Service did not apply the bar to a party who married in the honest belief that a prior marriage of the other party thereto had been previously dissolved by divorce, even though the subsequent marriage proved to be an adulterous relationship because there had been no actual dissolution of the earlier marriage by divorce.
Finally, the Service did not invoke the bar when the adultery was incidental to an invalid marriage which was contracted in the honest belief that a divorce decree terminating a prior marriage of one of the parties was valid and left them free to marry when, in fact, the divorce decree lacked legal validity.
Moreover, the rulings set forth in the three preceding paragraphs were not altered by the fact that, after learning of the impediment, the parties continued the relationship and did not remarry when they could. (
Again, unless the specifications in (vi) and (vii) below required a contrary ruling, adultery did not preclude a finding of good moral character if an unmarried petitioner honestly believed he was having intercourse with a divorced person
/ or widow,
/ based upon the other party's misrepresentations as to marital status, or if a petitioner believed in good faith that he (she) and the other party to the adultery were unmarried, by reason of a limited or interlocutory decree of divorce relating to a previous lawful marriage.
Section's bar applied if adultery tended to destroy a viable intact marriage
. As stated in subdivision (ii), whether adultery had been committed was determined under state law. Upon a determination that it was committed, the court in
/ and text thereto) declared fatal solely that extramarital intercourse which tended to destroy an existing marriage; which evidenced disregard of marital vows and responsibilities.
/ This approach was adopted by a number of courts in attempting to construe section 101(f) less harshly,
/, although the decision was criticized and rejected by the 3rd
as having read section 101(f) out of the Act because it recognized only that behavior which was unquestionably inconsistent with good moral character. (
The Service followed the views expressed in
. Accordingly, civil or criminal adultery, with or without cohabitation, invoked the section's bar, where the existing lawful marriage was viable or intact when the act was committed, for such adultery evidenced disregard of marital obligations and tended to destroy the marriage. (
Furthermore, the above rule applied when an unmarried petitioner committed adultery with full knowledge of and willful disregard for the fact that an existing lawful marriage of the other party was then viable and intact, since such adultery was regarded as extramarital intercourse which tended to destroy the other party's marriage. (
Finally, the rules in the two preceding paragraphs applied without regard to whether such misconduct actually did
/ or did not
/ disrupt or destroy the marriage; or whether the innocent spouse was aware or ignorant of the misconduct; or whether the parties to the adultery thereafter married, for, in such instances, the tendency to destroy the marriage was not erased.
Based upon majority opinion,
/ the Service further held that, where the lawful marriage referred to above had ceased to be viable and intact before the commission of the adultery, such sexual misconduct without cohabitation was not regarded as adultery tending to destroy an existing marriage and that, therefore, the section's bar did not apply upon such basis.
However, as implied above, a different rule governed where the sexual conduct amounted to adulterous cohabitation. The California court in Wadman regarded the absence of cohabitation to be material in its determination that adultery after disruption of the relevant marriage did not activate section101(f)(2).
/ Moreover, while the Board of Immigration Appeals in two later cases involving previously disrupted marriages failed to recognize cohabitation as a decisive factor,
/ the Board's earlier
/ and latter
/ decision, as well as other court rulings in jurisdictions outside California,
/ applied the bar of section 101(f)(2) to adultery with cohabitation - even though the relevant marriages had been previously disrupted. (
Accordingly, based upon the above precedents, the Service held that adultery with cohabitation - even in the absence of a viable intact marriage - invoked the bar of section 101(f)(2), unless the parties to the adultery were lawfully married subsequent to the commission thereof,
/ or the adulterous relationship amounted to "technical adultery" as described in (v), supra. (
Other factors which invoked the section's bar
. Without exception, the section's bar was applied by the Service if the petitioner actually had been convicted of the crime of adultery, as the result of one or more adulterous acts committed during the statutory period. (
Without exception, where there existed civil or criminal adultery during the statutory period the Service invoked the section's bar if it was grossly incestuous, as between parent and child, or brother and sister; or if it was commercialized, as where the petitioner prostitutes herself; or if it was flaunted openly with a willful disregard for the proprities, causing publicized notoriety and public scandal; or if it was committed in the home under circumstances contributing to the delinquency of minor child
ren; or if illegitimate children were begotten, and became public charges supported by public funds, or if the frequency of the adulterous acts, the number of different persons involved, the number illegitimate children born, and any other circumstances were such as to collectively indicate the petitioner's disregard for any standard of sexual morality. (
Service position after repeal of adultery - Section 101(f)(2)
. Although adultery is no longer a mandatory bar to establishing "good moral character"
/ nonetheless the position of the Service continues to be that where civil or criminal adultery comes to the attention of the designated examiner which destroys a viable marriage, is grossly incestuous, as between parent and child, or brother and sister; or if it is commercialized, as where the petitioner prostitutes herself; or if it is flaunted openly with a willful disregard for the proprieties, causing publicized notoriety and public scandal; or if it is committed in the home under circumstances contrib
uting to the delinquency of minor children; or if illegitimate children are begotten, and become public charges supported by public funds, or if the frequency of the adulterous acts, the number of different persons involved, the number of illegitimate children born and any other circumstances are such as to collectively indicate the petitioner's disregard for any standard of sexual morality, a finding of lack of good moral character shall be advanced to the naturalization court. (
False testimony (section 101(f)(6))
Under former law
. Although no provision comparable to section 101(f)(6) was contained in the Nationality Act of 1940 or earlier legislation, other than provisions penal in nature,
/ petitions filed thereunder were generally denied by the courts when the petitioners knowingly furnished false testimony with the intention to deceive the government and thereby facilitate their naturalization. Under these circumstances, the petitioners were deemed lacking in the good moral character required by the statute. Petitioners were denied upon this premise even where the falsification related to events occurring outside the statutory period,
/ or concerned facts which, if honestly disclosed, would not in themselves have disqualified the petitioners.
Moreover, the citizenship of persons naturalized under the conditions last described above was canceled by the courts. These decisions rejected the theory that one may deliberately engage in falsehood during naturalization proceedings so long as the truth, had it been revealed, would not in itself have been a basis for denial of citizenship. The rationale employed held that such falsification amounted to concealment of a materiel fact because it forestalled investigation which would otherwise have been cond
ucted, thereby having the effect of denying the government its rightful opportunity to fully investigate the petitioners' qualifications for naturalization and the facts relating thereto.
False testimony under section 101(f)(6)
. Section 101(f)(6) has broadened the scope of disqualification to include petitioners who furnish false testimony during the pertinent statutory period for the purpose of obtaining "any benefit" under the Act. Furthermore, guided by the rationale of the courts in naturalization cases arising under the earlier law, applied in three Federal Judicial Circuits,
/ and decisions under the current statute,
/ the Service has adopted the view that a petition shall be recommended for denial under the section, even though the falsification concerns facts which, if fully and truthfully disclosed, would not be material in the sense that they would not directly or indirectly bar the petitioner from receiving the benefit sought. It is sufficient if the facts constitute information which will assist the Service in its investigation and determination of the petitioner's eligibility for naturalization or other benefit a
nd are, therefore, facts concerning which the government has statutory right to inquire and be told the whole truth.
Thus, under the above view, when a petitioner knowingly conceals an arrest which occurred outside or within the statutory period, believing that its disclosure would bar his naturalization, the disqualification of the section will attach even though the arrest may relate to an offense of a minor nature which would not have an adverse effect upon his eligibility. In its essence, the proscription flows from the petitioner's deliberate, calculated intention or purpose to deceive the government while under oat
h in order to attain citizenship which, in itself, denotes a lack of good moral character and may be present whether the facts falsified or concealed are material or immaterial in the usual sense.
/ While certain language in the cancellation case of Chaunt v. U.S.,
/ has influenced a few lower courts 83b/ to apply a materiality test in disagreement with the Service view, these decisions have been completely discredited by later authoritative decisions.
The Supreme Court in Berenyi v. Immigration Director,
/ held that Berenyi's failure to answer truthfully a general question concerning his membership in, and association with, the Communist Party - a question which did not specifically ask whether he had been "meaningfully associated" with the Party - constituted false testimony within the meaning of section 101(f)(6). Significantly, the court observed that the government is entitled to know of any facts that may bear on an applicant's statutory eligibility for naturalization; that even if Berenyi had not been
an actual member of the Party, or had been a nominal member only, and even assuming that citizenship may be denied only when there is membership amounting to "meaningful association," his negative answer to the question would have justified a finding by the court below that he had not been truthful; and, finally, that Berenyi was not denied citizenship because of his Party membership, but because he did not tell the truth while under oath.
Again, even more recently, a decision granting naturalization to a petitioner who falsely testified that she was unmarried was reversed upon appeal. The court below, applying the materiality formula in Chaunt, granted the petition because it found that the facts concealed would not have been a barrier to naturalization or useful in investigation leading to the discovery of other facts warranting a denial of citizenship.
/ However, the appellate court expressly declined to read into section 101(f)(6) an exception based upon the immateriality of the facts falsified, and concluded that the section is not concerned with the significance or materiality of a particular question, but rather (citing Berenyi), "intends that naturalization be denied to one who gives false testimony to facilitate naturalization."
/ The decision specifically states that, where the government asks a question which it deems significant to determine the qualifications of one seeking citizenship, the government is entitled to a full disclosure, and that even if the question appears innocuous on its face, a false answer will activate the section's bar.
"Testimony" for purposes of section 101(f) (6) must be oral
. Contrary to the previous administrative view,
and guided by court reasoning,
it is now the Service position that section 101(f)(6) relates only to oral utterances or evidence given under oath. Therefore, false statements in an application, whether or not under oath, do not constitute "testimony;"
/however, false statements under oath given orally in support of an application are within the purview of the statute.
Furthermore, the statutory meaning of "testimony" is not restricted to statements made in an administrative, judicial, or quasi-judicial proceeding but is equally applicable to statements made under oath during the course of routine question-and-answer interviews conducted by Service officers.
Effect of pardon, record expungement, or petty offense
. Except in the case of a narcotics offense described in section 241(a)(11),
/ a petitioner who was confined for six or more months during the statutory period as a result of his having been convicted of a criminal offense is not precluded from establishing good moral character by reason of section 101(f)(7), if he has been granted a full, unconditional, executive pardon for the offense.
Moreover, save where the conviction is for a narcotics offense described in section 212(a)(23),
a petitioner who has been convicted of an offense described in section 101(f)(3) is precluded from establishing good moral character under the latter section, provided he has received a full, unconditional, executive pardon for the offense.
Applying the reasoning of the decisions cited in footnotes
, and various court rulings,
the Service also takes the position that a finding of good moral character is not precluded under section 101(f)(8), when a full and unconditional executive pardon has been granted prior to the beginning of the statutory period.
Some courts have declined to accept the Service viewpoint expressed above and have denied naturalization even though the pardon was granted without the statutory period and the evidence clearly established the reformation and rehabilitation of the petitioners.
However, dicta-wise, two of these courts appear to consider the section's absolute bar inapplicable where the pardon is based upon finding that the petitioner was improperly convicted at his original trial,
and a third court has granted naturalization upon that premise.
The Service also originally held that, even where the pardon was granted during the statutory period, a finding of good moral character was not precluded by section 101(f)(8). However, in
Petition of Ramsay
, naturalization was denied because the pardon grant fell within the period.
/ Additionally, the only appellate court to consider this question affirmed a similar adverse decision in
the petitioner had been convicted of murder and released from prison outside the statutory period, but the pardon was within the period. The court stated that the petitioner had been a convicted murderer within the five-year period preceding the petition because the pardon had been granted only 15 months before the petition was filed, and that even by the most liberal construction he was unable to establish his good moral character for the five-year period required by section 316(a) as supplemented by sec
court also denied citizenship to another petitioner who received a pardon within the period,
/ as did three other courts in later decisions.
/Upon the basis of these precedents, the Service is abandoning its original position and henceforth will recommend "denial" when the pardon is granted within the application statutory period. (
. If a record of conviction, other than for a narcotics offense described in sections 212(a)(23) and 241(a)(11), had been expunged under section 1203.4 of the California Penal Code, a showing of good moral character is not precluded under section 101(f)(3) by reason of such conviction,
/ or under section 101(f)(7) by reason of confinement resulting from such conviction.
/ Moreover, since the bar of these sections is invoked when there has been a "conviction," decisions holding that the said expungement wipes out the "conviction" required to sustain certain deportation or exclusion charges
are regarded as lending some support to this rule.
However, deportation cases also hold that, where the record expunged under California law relates to a conviction of a narcotics offense specified in section 241(a)(11), the "conviction" is not erased by the expungement. Based upon the reasoning in these cases,
/ it is the Service position that where the expunged record relates to one of the narcotics offenses in section 212(a)(23), which are identical with those listed in section 241(a)(11), a petitioner shall be regarded as having been "convicted" within the meaning of section 101(f)(3) and, if confined, as having been confined as a result of "conviction" for purposes of section 101(f)(7). Accordingly, in these circumstances, the bars of the sections shall be imposed as otherwise applicable and appropriate.
. If an alien has committed only a single offense involving moral turpitude which under the provisions of section 4 of the Act of September 3, 1954,
/ or under the like statutory provisions which succeeded section 4,
is classifiable as a petty offense, his conviction therefor is not regarded as a conviction which would make him excludable from entry into the United States under current section 212(a)(9). Also, under such circumstances, a finding of good moral character is not precluded by current section 101(f)(3).
The "petty offense" relief described above is not available to an alien who has in fact committed two such offenses involving moral turpitude, even though the conviction record of one such offense has been expunged under section 1203.4 of the California Penal Code (see (ii), supra)
/. However, the single offense requirement refers solely to an offense involving moral turpitude, and the alien's eligibility for the relief is unaffected by additional offenses which do not fall within such classification.
To be classifiable as "petty," the offense must be a misdemeanor as distinguished from a felony under definitions in the United States Code,
/ and the punishment actually imposed must not exceed 6 months' imprisonment or $500 fine, or both.
/ When an offense arising under a domestic statute is punishable by death or imprisonment in excess of one year, the offense is a felony by Code definition irrespective of the punishment actually imposed, and cannot be classified as a petty offense,
/ unless (1) the statute includes within it scope both a felony and a misdemeanor, as defined in the Code, (2) is so drawn that each classification is defined in divisible portions of the statute, and (3) an examination of the conviction record shows that the conviction occurred and the sentence was imposed under the divisible portion of the statute relating to the misdemeanor.
The Attorney General has held that where an offense arises under a foreign statute, United States' standards shall determine whether the offense is a misdemeanor and whether, as such, it is classifiable as a petty offense.
/ Otherwise expressed, when a foreign statute is involved, first 18 U.S.C., and then if necessary Title 22 of the District of Columbia Code, shall be searched
/ for an offense which is factually the same as or similar to the foreign offense, and the punishment provided therein shall be evaluated in the light of 18 U.S.C. 1(1) and (2) to determine whether the foreign offense is a felony or a misdemeanor. When in the latter classification, the offense will be "petty" if the foreign conviction record discloses that the punishment actually imposed did not exceed 6 months' imprisonment or $500 fine, or both, as specified in 18 U.S.C. 1(3).
/ Moreover, where the execution of a sentence imposing a penalty beyond these limitations is suspended, the punishment actually imposed is not regarded as being in excess thereof, and the offense is considered "petty."
As it was the intention of Congress in enacting section 4 of the 1954 statute to relieve the alien of all disabilities flowing from the conviction, section 4 is to be given as comprehensive a legal effect as the granting of a full pardon or the expungement of a record of conviction.
/ Therefore, a finding of good moral character is also not precluded by current section 101(f)(7) because of confinement during the statutory period pursuant to such a conviction. This rule applies equally in situations involving the similar petty offense portion of current section 212(a)(9). (
Subdiv. (iii) revised
Pardoned, expunged, or petty offenses remain relevant to determination of good moral character
. With regard to all the situations in (i), (ii), and (iii) above, whether a pardon has been granted, or the record has been expunged, or the offense is a petty offense under the applicable statutory provisions-although the conviction and confinement are no longer conclusive statutory bars to a finding of good moral character, the unlawful acts are not obliterated and the question of their commission is still relevant to the determination of whether good moral character has been established. For example, w
here independent evidence in the naturalization record establishes the commission of the unlawful act which formed the basis for the criminal proceedings, such act may be properly considered in determining the question of good moral
character, even though the record of the criminal proceedings has been expunged under the California law;
/ also, extenuating circumstances and exculpatory statements may be considered in evaluating the effect of the turpitudinous acts on the establishment of good moral character.
Subpar. (4) revised
Attachment; favorable disposition
. The generality of the substantially similar language used in this and former statutes to express the requirement of attachment and favorable disposition has prompted the judicial conclusion that Congress intended an elastic test which should no be circumscribed by attempts at precise definition.
Members of Communist groups
. Lacking definite standards in the area of attachment and favorable disposition,
/ courts frequently reached different conclusions concerning the applicability of the statutory prohibitions. While the current requisite is still phrased in general terms,
/ other current provisions which must be considered in conjunction therewith have made academic some of the perplexing questions of the past.
An example of the above statutory development is noted in the fact that naturalization is now specifically denied members of certain Communist groups identified by name in the statute,
/ and petitions may be disposed of on that ground, without regard to the attachment issue. Formerly, it was held that proscription based upon lack of attachment arising out of membership in a dubious organization did not extend to a person unless it was established that the aims and purposes of the organization were inconsistent with the requisite attachment and that the individual, himself, personally subscribed to and supported the prohibited objectives.
Registration proceedings pending
. The difficulty in proving lack of attachment was also alleviated somewhat by legislation
/ amending the Nationality Act of 1940,
/ under which membership in Communist-front organizations registered in accordance with the Subversive Activities Control Act of 1950
/ was declared to be prima facie evidence of lack of attachment.
While no provision similar to that above is contained in the current law, section 316(f) thereof prohibits the naturalization of a member or affiliate of an organization against which are pending proceedings to compel its registration under section 13 or 14 of the Subversive Activities Control Act of 1950. This prohibition does not apply if membership or affiliation has terminated prior to the final hearing of the petition for naturalization.
Prima facie evidence for denaturalization
. For denaturalization purposes under the present law, prima facie ineligibility predicated upon lack of attachment, retroactive to the time of admission to citizenship may be established, based upon membership in organizations proscribed under section 313 of the Act, provided such membership occurs within a specified period subsequent to naturalization.
This provision reenacts in somewhat similar form, section 305(d) which was added to the 1940 enactment by the 1950 legislation.
Required mental attitudes
. Attachment and favorable disposition as used in the statutes relate to mental attitudes,
/ and contemplate the exclusion from citizenship of persons who are hostile to the basic form of government of the United States, or who disbelieve in the principles of the Constitution.
/ Such principles include not only that which permits change of the Constitution by prescribed methods, but also others, such as those which protect civil rights, liberty and property, assure representative government, and are hostile to dictatorship and minority rule.
"Attachment" is a stronger term than "well disposed" and implies a depth of conviction which would lead to active support of the Constitution.
Advocacy of peaceful change
. Prior to the current statute, the United States Supreme Court ruled that the requisite attachment does not circumscribe liberty of political thought, and thus sanctions the advocacy of changes of the Constitution by peaceful and constitutional means.
The above point of view was applied in 1957 and 1958, when a United States district court in Cleveland and Los Angeles, respectively, held in unreported cases that membership in the Socialist Labor Party of America and advocacy of peaceful changes in the Constitution of the United States to accord with principles of that party were not necessarily inconsistent with attachment to the principles of the Constitution. In determining the attachment of such a petitioner, the test of attachment proposed by the Gov
ernment in the Schneiderman case, supra, and the limitation on changes there expressed, particularly those relating to inviolable rights and freedoms, should be considered.
Some courts have held, however, that the right to work for a constitutional amendment does not extend to aliens;
/ or, that such right is consistent with attachment only if the changes advocated do not involve fundamentals to the extent that an entirely different form of government would be established.
One appellate court has stated that patriotism is not a condition of naturalization; that attachment is not addressed to the heart, demands no affection for or even approval of a democratic system of government, but merely an acceptance of the fundamental political habits and attitudes which here prevail, and a willingness to obey the laws which may result from them.
Advocacy of government overthrow by force and violence is not within any interpretation of the right to work for change;
/ nor is the advocacy of Nazism.
Evidence of lack of required attitude
. Under the broad interpretation of the attachment and favorable-disposition requisites, citizenship has been denied in the past to aliens who had been granted exemption from military service on account of their status as such;
/ to aliens who had committed serious crimes;
to aliens who lacked knowledge of the Constitution;
/ and to aliens who were unwilling to bear arms in defense of the United States because of religious or pacifist beliefs.
The above requirements like that of good moral character must be established during the requisite statutory period,
/ but the terms of the current provision permit an examination of prior acts and conduct for the purpose of determining whether the petitioner has been attached and well disposed.
Unwillingness to vote, serve on jury, or otherwise participate in government because of religious training and belief
. Compliance with the attachment and favorable-disposition requirements generally contemplates, among other things, a willingness to vote, serve on juries, hold public office, or otherwise participate in the affairs of government. The lower courts are evenly divided on the proposition that a petitioner for naturalization who refuses to perform these normal obligations of citizenship can nonetheless be regarded as attached to the principles of the Constitution and well disposed to the good order and happines
s of the United States, if his attitude is sincerely and strongly held as a result of religious training and belief.
However, supporting the affirmative of the above proposition is Welsh v. U.S.,
/ which held that a conscientious objector status under the conscription law may not only be based upon sincere, deeply held beliefs having their origin in traditional concepts of religion, but also upon beliefs which are purely ethical or moral in their source. Moreover, the court embraced this view even though the conscription statute expressly limits the exemption to one whose conscientious objection is premised upon "religious training and belief," and specifically states that the quoted term does not i
nclude a merely personal moral code. Thus, Welsh makes it abundantly clear that a basic policy of our law is to recognize and protect sincere, conscientious beliefs which are so premised, and to construe statutory provisions in a manner which will achieve that purpose. Accordingly, based upon Welsh, the Service holds that a petitioner's unwillingness to assume the duties of citizenship described in the paragraph just above, because of "religious training and belief," in its orthodox meaning or as broadly de
fined in Seeger,
/ does not preclude him from establishing the requisite attachment and favorable disposition in some other manner. If a petitioner is able to affirmatively establish that he is otherwise attached and well disposed, the case may be presented to the court with a Grant-Facts recommendation.
However, when a petitioner not only refuses to perform the above-mentioned normal obligations of citizenship, but expresses as intention to disobey any law, irrespective of the nature or subject matter thereof, which in his opinion contravenes his religious beliefs, he is thereby precluded from taking the oath of allegiance without mental reservation respecting the pledge therein to support the laws of the United States. He is further disqualified from naturalization, as lacking in attachment and in favorab
le disposition, since he clearly manifests an intention to obey only those laws which he decides for himself he can conscientiously obey, and to disobey those which he considers as in conflict with his religious beliefs. Such a position is inconsistent with that of a law-abiding citizen and in consequence, violates a basic tenet of what is contemplated in the terms "attachment" and "favorable disposition." Denial on all three grounds shall be made in such cases.
Requirements as affected by petitioner's legal incompetency during statutory period
. If a petitioner is legally competent at the time of filing his petition and at the final hearing, his naturalization is not precluded because during part of the statutory period he was legally incompetent or confined to a mental hospital; there is a presumption in such a case of continuance of the good moral character, attachment, and favorable disposition which existed prior to the period of legal incompetency.