15 Feb Drug Addiction and Good Moral Character Measures in Immigration Law
During my third year in law school, I had to begin the process of applying to the California Bar. Whether or not I would eventually be licensed to practice law in the state depended largely on my ability to pass the dreaded California Bar Exam, where average pass rates hover between fifty and sixty percent.
However, even if I were to successfully pass the Bar Exam, I still had to convince the powers that be that I was a person of good moral character. California Bar applicants who cannot prove that they are of good moral character will not be allowed to practice law here.
So, what characteristics epitomize good moral character for California lawyers? Unfortunately, there is no set standard and each applicant is evaluated on a case-by-case basis. Further, despite the name, the burden of proof is not to show good moral character but rather that you do not have bad moral character. Some issues, such as criminal history, poor financial management, and mental health issues (including alcoholism or drug addiction) may cause an in-depth study into one’s moral fiber. Thus, there are likely a number of lawyers who have neither good moral character nor bad moral character but, because proving good moral character to any degree of certainty is impossible, were given a bar card anyway.
I believe a moral character determination prior to giving an individual a license to practice law is extremely important, especially since it is almost impossible to fully regulate the character of California’s almost quarter-million attorneys after they become licensed. I wish more state bar regulators realized the value of preventing harm from happening, rather than simply reacting to unethical lawyers only after a client has been harmed.
The United States government also worries about moral character, but not with regard to US lawyers. United States immigration laws have been drafted with an eye toward ensuring that the less savory of the planet’s occupants never set foot on US soil or, if they are already here, get ejected as quickly as possible.
If you are already a United States citizen, do not fret. Your nationality cannot be stripped simply because you do not possess good moral character (unless, of course, you are a naturalized citizen and lied during the immigration process). Although we may sometimes wish to load all of the dangerous criminal US citizens on a deportation flight bound for Antartica, the Fourteenth Amendment currently does not provide for that. Instead, the United States focuses on the moral character of those who are not yet US citizens.
Prior to entering the United States, and even when applying for certain immigration benefits while here, a foreign national is screened by consular or immigration officials in an effort to ensure that they are not inadmissible to the United States. Section 212 of the Immigration & Nationality Act (INA) bars admission for certain individuals, such as criminals, controlled substance violators, prostitutes, those with communicable diseases, those which are likely to become a public burden, those with prior immigration violations, and even those who suffer from drug addiction or alcoholism. An argument can be made that at least some of the inadmissibility grounds speak to a foreign nation’s moral character and act to weed out those bad seeds right up front. However, an applicant for admission to the US has no affirmative duty to prove that they are of good moral character.
Once a foreign national has gained admission to the US, he or she is constantly under the treat of being ejected for bad behavior. Differences exist as to how or when the US government will discover that a person has engaged in deportable behavior, but chances are good that a foreign national’s misdeeds will eventually come to light. For some issues, such as committing one crime of moral turpitude, the longer the individual has remained in the United States without behaving badly the better their chances of not being deported (deportation for certain crimes involving moral turpitude only if committed within the first five years of arrival); for other issues, such as controlled substance violations, length of time in the United States is irrelevant. However, a foreign national has no affirmative duty to prove that they are of good moral character in order to remain in the United States.
Although the grounds of inadmissibility and deportability arguably attempt to regulate people of bad moral character, they do little to ensure the good moral character of foreign nationals in the US. Perhaps this is because, like when applying to the California bar, it is difficult to prove your good moral character objectively. Does someone who donates to charity automatically have good moral character? Does someone who does not donate to charity lack good moral character? Like prospective lawyers who are applying to the bar in California, there are likely huge numbers of foreign nationals who are allowed to come to the US and remain who have neither good moral character nor demonstrably bad moral character.
That is not to say, however, that the US government never requires an immigrant to prove good moral character. While US citizens need not worry about proving their worth in order to maintain citizenship, those applying for US citizenship through naturalization must prove to the naturalization officer that they have good moral character (whatever that means). Again, much like with the lawyer example, the term is rather misleading as there is typically no affirmative duty to show good moral character. Rather, the duty is to overcome evidence of bad moral character. Good moral character is a question of fact and does not require an unblemished background. Unlike with other burdens of proof in the immigration setting, the standard for good moral character puts the onus on the applicant; any doubts about an applicant’s character and the government wins. Those without obvious moral character issues will be held to the standard of the average person in the applicant’s community. I’ll let the reader decide how close the "average person" standard comes to being indicative of good moral character.
Millie Anne Cavanaugh, Esq. is a Los Angeles immigration attorney and former insurance defense attorney. She is licensed to practice law in California and Massachusetts. The information contained herein is provided for informational purposes only, and should not be construed as a solicitation for your business or as legal advice on any subject matter. You should not act or refrain from acting on the basis of this information without seeking independent legal advice.
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