8 CFR 316.10

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§ 316.6

8 CFR Ch. I (1–1–12 Edition)

of approval, Form N–472, shall identify
the family members so covered.
(iii) An applicant whose Form N–470
application under section 316(b) of the
Act has been approved, but who voluntarily claims nonresident alien status
to qualify for special exemptions from
income tax liability, raises a rebuttable presumption that the applicant has
relinquished a claim of having retained
lawful permanent resident status while
abroad. The applicant’s family members who were covered under section
316(b) of the Act and who were listed on
the applicant’s Form N–472 will also be
subject to the rebuttable presumption
that they have relinquished their
claims to lawful permanent resident
status.
(2) Preservation of residence under section 317 of the Act. An application for
the residence and physical presence
benefits of section 317 of the Act to
cover any absences from the United
States, whether before or after December 24, 1952, shall be submitted to the
Service on Form N–470 with the required fee, in accordance with the
form’s instructions. The application
may be filed either before or after the
applicant’s absence from the United
States or the performance of the functions or services described in section
317 of the Act.
(3) Approval, denial, and appeal. The
applicant under paragraphs (d)(1) or
(d)(2) of this section shall be notified of
the Service’s disposition of the application on Form N–472. If the application
is denied, the Service shall specify the
reasons for the denial, and shall inform
the applicant of the right to appeal in
accordance with the provisions of part
103 of this chapter.

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[56 FR 50484, Oct. 7, 1991, as amended at 56 FR
50487, Oct. 7, 1991; 58 FR 49913, Sept. 24, 1993;
60 FR 6651, Feb. 3, 1995; 62 FR 10394, Mar. 6,
1997; 76 FR 53798, Aug. 29, 2011]

§ 316.6 Physical presence for certain
spouses of military personnel.
Pursuant to section 319(e) of the Act,
any period of time the spouse of a
United States citizen resides abroad
will be treated as physical presence in
any State or district of the United
States for purposes of naturalization
under section 316(a) or 319(a) of the Act
if, during the period of time abroad,

the applicant establishes that he or she
was:
(a) The spouse of a member of the
Armed Forces;
(b) Authorized to accompany and reside abroad with that member of the
Armed Forces pursuant to the member’s official orders; and
(c)
Accompanying
and
residing
abroad with that member of the Armed
Forces in marital union in accordance
with 8 CFR 319.1(b).
[76 FR 53798, Aug. 29, 2011]

§§ 316.7–316.9
§ 316.10

[Reserved]

Good moral character.

(a) Requirement of good moral character
during the statutory period. (1) An applicant for naturalization bears the burden of demonstrating that, during the
statutorily prescribed period, he or she
has been and continues to be a person
of good moral character. This includes
the period between the examination
and the administration of the oath of
allegiance.
(2) In accordance with section 101(f)
of the Act, the Service shall evaluate
claims of good moral character on a
case-by-case basis taking into account
the elements enumerated in this section and the standards of the average
citizen in the community of residence.
The Service is not limited to reviewing
the applicant’s conduct during the five
years immediately preceding the filing
of the application, but may take into
consideration, as a basis for its determination, the applicant’s conduct and
acts at any time prior to that period, if
the conduct of the applicant during the
statutory period does not reflect that
there has been reform of character
from an earlier period or if the earlier
conduct and acts appear relevant to a
determination
of
the
applicant’s
present moral character.
(b) Finding of a lack of good moral
character. (1) An applicant shall be
found to lack good moral character, if
the applicant has been:
(i) Convicted of murder at any time;
or
(ii) Convicted of an aggravated felony
as defined in section 101(a)(43) of the
Act on or after November 29, 1990.

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pmangrum on DSK3VPTVN1PROD with CFR

Department of Homeland Security

§ 316.10

(2) An applicant shall be found to
lack good moral character if during the
statutory period the applicant:
(i) Committed one or more crimes involving moral turpitude, other than a
purely political offense, for which the
applicant was convicted, except as
specified in section 212(a)(2)(ii)(II) of
the Act;
(ii) Committed two or more offenses
for which the applicant was convicted
and the aggregate sentence actually
imposed was five years or more, provided that, if the offense was committed outside the United States, it
was not a purely political offense;
(iii) Violated any law of the United
States, any State, or any foreign country relating to a controlled substance,
provided that the violation was not a
single offense for simple possession of
30 grams or less of marijuana;
(iv) Admits committing any criminal
act covered by paragraphs (b)(2) (i), (ii),
or (iii) of this section for which there
was never a formal charge, indictment,
arrest, or conviction, whether committed in the United States or any
other country;
(v) Is or was confined to a penal institution for an aggregate of 180 days pursuant to a conviction or convictions
(provided that such confinement was
not outside the United States due to a
conviction outside the United States
for a purely political offense);
(vi) Has given false testimony to obtain any benefit from the Act, if the
testimony was made under oath or affirmation and with an intent to obtain
an immigration benefit; this prohibition applies regardless of whether the
information provided in the false testimony was material, in the sense that if
given truthfully it would have rendered
ineligible for benefits either the applicant or the person on whose behalf the
applicant sought the benefit;
(vii) Is or was involved in prostitution or commercialized vice as described in section 212(a)(2)(D) of the
Act;
(viii) Is or was involved in the smuggling of a person or persons into the
United States as described in section
212(a)(6)(E) of the Act;
(ix) Has practiced or is practicing polygamy;

(x) Committed two or more gambling
offenses for which the applicant was
convicted;
(xi) Earns his or her income principally from illegal gambling activities; or
(xii) Is or was a habitual drunkard.
(3) Unless the applicant establishes
extenuating circumstances, the applicant shall be found to lack good moral
character if, during the statutory period, the applicant:
(i) Willfully failed or refused to support dependents;
(ii) Had an extramarital affair which
tended to destroy an existing marriage;
or
(iii) Committed unlawful acts that
adversely reflect upon the applicant’s
moral character, or was convicted or
imprisoned for such acts, although the
acts do not fall within the purview of
§ 316.10(b) (1) or (2).
(c) Proof of good moral character in certain cases—(1) Effect of probation or parole. An applicant who has been on probation, parole, or suspended sentence
during all or part of the statutory period is not thereby precluded from establishing good moral character, but
such probation, parole, or suspended
sentence may be considered by the
Service in determining good moral
character. An application will not be
approved until after the probation, parole, or suspended sentence has been
completed.
(2) Full and unconditional executive
pardon—(i) Before the statutory period.
An applicant who has received a full
and unconditional executive pardon
prior to the beginning of the statutory
period is not precluded by § 316.10(b)(1)
from establishing good moral character
provided the applicant demonstrates
that reformation and rehabilitation occurred prior to the beginning of the
statutory period.
(ii) During the statutory period. An applicant who receives a full and unconditional executive pardon during the
statutory period is not precluded by
§ 316.10(b)(2) (i) and (ii) from establishing good moral character, provided
the applicant can demonstrate that extenuating and/or exonerating circumstances exist that would establish
his or her good moral character.

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§ 316.11

8 CFR Ch. I (1–1–12 Edition)

(3) Record expungement—(i) Drug offenses. Where an applicant has had his
or her record expunged relating to one
of the narcotics offenses under section
212(a)(2)(A)(i)(II)
and
section
241(a)(2)(B) of the Act, that applicant
shall be considered as having been
‘‘convicted’’ within the meaning of
§ 316.10(b)(2)(ii), or, if confined, as having been confined as a result of ‘‘conviction’’
for
purposes
of
§ 316.10(b)(2)(iv).
(ii) Moral turpitude. An applicant who
has committed or admits the commission of two or more crimes involving
moral turpitude during the statutory
period is precluded from establishing
good moral character, even though the
conviction record of one such offense
has been expunged.
[56 FR 50484, Oct. 7, 1991, as amended at 58 FR
49913, Sept. 24, 1993]

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§ 316.11 Attachment to the Constitution; favorable disposition towards
the good order and happiness.
(a) General. An applicant for naturalization must establish that during
the statutorily prescribed period, he or
she has been and continues to be attached to the principles of the Constitution of the United States and favorably disposed toward the good order
and happiness of the United States. Attachment implies a depth of conviction
which would lead to active support of
the Constitution. Attachment and favorable disposition relate to mental attitude, and contemplate the exclusion
from citizenship of applicants who are
hostile to the basic form of government
of the United States, or who disbelieve
in the principles of the Constitution.
(b) Advocacy of peaceful change. At a
minimum, the applicant shall satisfy
the general standard of paragraph (a)
of this section by demonstrating an acceptance of the democratic, representational process established by the Constitution, a willingness to obey the
laws which may result from that process, and an understanding of the means
for change which are prescribed by the
Constitution. The right to work for political change shall be consistent with
the standards in paragraph (a) of this
section only if the changes advocated
would not abrogate the current Gov-

ernment and establish an entirely different form of government.
(c) Membership in the Communist Party
or any other totalitarian organization. An
applicant who is or has been a member
of or affiliated with the Communist
Party or any other totalitarian organization shall be ineligible for naturalization, unless the applicant’s membership meets the exceptions in sections 313 and 335 of the Act and § 313.4
of this chapter.
§ 316.12 Applicant’s
legal
incompetency during statutory period.
(a) General. An applicant who is legally competent at the time of the examination on the naturalization application and of the administration of the
oath of allegiance may be admitted to
citizenship, provided that the applicant
fully understands the purpose and responsibilities of the naturalization procedures.
(b) Legal incompetence. Naturalization
is not precluded if, during part of the
statutory period, the applicant was legally incompetent or confined to a
mental institution.
(1) There is a presumption that the
applicant’s good moral character, attachment, and favorable disposition
which existed prior to the period of
legal incompetency continued through
that period. The Service may, however,
consider an applicant’s actions during
a period of legal incompetence, as evidence tending to rebut this presumption.
(2) If the applicant has been declared
legally incompetent, the applicant has
the burden of establishing that legal
competency has been restored. The applicant shall submit legal and medical
evidence to determine and establish
the claim of legal competency.
(3) The applicant shall bear the burden of establishing that any crimes
committed, regardless of whether the
applicant was convicted, occurred
while the applicant was declared legally incompetent.
§ 316.13

[Reserved]

§ 316.14 Adjudication—examination,
grant, denial.
(a) Examination. The examination on
an application for naturalization shall

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