Chapter 5: Conditional Bars for Acts in Statutory Period

In addition to the permanent bars to GMC, the INA and corresponding regulations include bars to GMC that are not permanent in nature. 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] See INA 316(a). See 8 CFR 316.10. An offense that does not fall within a permanent or conditional bar to GMC may nonetheless affect an applicant’s ability to establish GMC.^[2] See INA 101(f). See Chapter 1, Purpose and Background.

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 applicant 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.

A. One or More Crimes Involving Moral Turpitude 

1. Crime Involving Moral Turpitude (CIMT)

“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] See Medina v. United States, 259 F.3d 220, 227 (4th Cir. 2001) quoting Matter of Danesh, 19 I&N Dec. 669, 670 (BIA 1988). See Matter of Perez-Contreras, 20 I&N Dec. 615, 618 (BIA 1992). See Matter of Flores, 17 I&N Dec. 225 (BIA 1980) (and cases cited therein).

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] See Matter of Silva-Trevino, 24 I&N Dec. 687, 688, 706 (A.G. 2008).

The officer should consider the nature of the offense in determining whether it is a CIMT.^[5] See Matter of Esfandiary, 16 I&N Dec. 659 (BIA 1979). 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.

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] See Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008).

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 applicant who is convicted of or admits to committing one or more CIMTs during the statutory period cannot establish GMC for naturalization.^[7] See INA 101(f)(3). See 8 CFR 316.10(b)(2)(i). If the applicant 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 applicant 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 applicant has ever committed; 

• The sentence imposed for the offense was six months or less; and

• The maximum possible sentence for the offense does not exceed one year.^[8] See INA 212(a)(2)(A)(ii)(ll).

The petty offense exception does not apply to an applicant 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 applicant who has committed more than one petty offense of which only one is a CIMT may be eligible for the petty offense exception.^[9] See Matter of Garcia-Hernandez, 23 I&N Dec. 590, 594-95 (BIA 2003).

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] See Chapter 2, Adjudicative Factors, Section F, “Purely Political Offense” Exception.

B. Aggregate Sentence of Five Years or More

An applicant 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 five years or more.^[11] See 8 CFR 316.10(b)(2)(ii). 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 five years or more occurred outside of the United States for purely political offenses committed abroad.^[12] See Chapter 2, Adjudicative Factors, Section F, “Purely Political Offense” Exception.

C. Controlled Substance Violation

An applicant cannot establish GMC if he or she has been convicted of or admits to having 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] See INA 101(f)(3) and INA 212(a)(2)(A)(i)(II). See 8 CFR 316.10(b)(2)(iii) and (iv). See Chapter 2, Adjudicative Factors, Section E, Admission of Certain Criminal Acts. This bar to establishing GMC also applies to an admission to committing acts which constitute the essential elements of any controlled substance violation.

Exception for Single Offense of Simple Possession 

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.^[14] See INA 101(f)(3). See 8 CFR 316.10(b)(2)(iii). While an offense for simple possession of 30 grams or less of marijuana is excluded from INA 101(f)(3), it may nonetheless affect GMC under the residual clause of the GMC definition. See INA 101(f). See 8 CFR 316.10(a)(2). 

D. Imprisonment for 180 Days or More

An applicant 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.^[15] See INA 101(f)(7). See 8 CFR 316.10(b)(2)(v). 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.^[16] See Matter of Piroglu, 17 I&N Dec. 578 (BIA 1980).

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 applicant 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.^[17] See Chapter 2, Adjudicative Factors, Section F, “Purely Political Offense” Exception.

E. False Testimony

1. False Testimony in Statutory Period

An applicant who gives false testimony to obtain any immigration benefit during the statutory period cannot establish GMC.^[18] See INA 101(f)(6). See 8 CFR 316.10(b)(2)(vi). False testimony occurs when the applicant 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 applicant’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.^[19] See Matter of R-S-J-, 22 I&N Dec. 863 (BIA 1999).

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:^[20] See Kungys v. United States, 485 U.S. 759, 780-81 (1988). 

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.”^[21] See Matter of L-D-E, 8 I&N Dec. 399 (BIA 1959). However, false information provided orally under oath to an officer in a question-and-answer statement relating to a written application is “testimony.”^[22] See Matter of Ngan, 10 I&N Dec. 725 (BIA 1964). See Matter of G-L-T-, 8 I&N Dec. 403 (BIA 1959). The oral statement must also be an affirmative misrepresentation. The 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.^[23] See Matter of G-, 6 I&N Dec. 208 (BIA 1954). Oral statements to officers that are not under oath do not constitute false testimony. 

Subjective Intent to Obtain an Immigration Benefit

The applicant must be providing the false testimony in order to obtain an immigration benefit. False testimony for any other reason does not preclude the applicant from establishing GMC. 

F. Prostitution

An applicant 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.^[24] See INA 101(f)(3) and INA 212(a)(2)(D)(i) and (ii). See 8 CFR 316.10(b)(2)(vii). The BIA has held that to “engage in” prostitution, one must have engaged in a regular pattern of behavior or conduct.^[25] See Matter of T, 6 I&N Dec. 474 (BIA 1955). The BIA has also determined that a single act of soliciting prostitution on one’s own behalf is not the same as procurement.^[26] See Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008).

G. Smuggling of a Person

An applicant 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.^[27] See INA 101(f)(3) and INA 212(a)(6)(E). See 8 CFR 316.10(b)(2)(viii).

Family Reunification Exception

This bar to GMC does not apply in certain cases where the applicant 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.^[28] See INA 212(a)(6)(E)(ii). See Sec. 301 of the Immigration Act of 1990 (IMMACT90), Pub. L. 101-649 (November 29, 1990).

H. Polygamy

An applicant who has practiced or is practicing polygamy during the statutory period is precluded from establishing GMC.^[29] See INA 101(f)(3) and INA 212(a)(10)(A). See 8 CFR 316.10(b)(2)(ix). Polygamy is the custom of having more than one spouse at the same time.^[30] Polygamy is not the same as bigamy. Bigamy is the crime of marrying a person while being legally married to someone else. An applicant who has committed bigamy may be susceptible to a denial under the “unlawful acts” provision. The officer should review documents in the file and any documents the applicant brings to the interview for information about the applicant’s marital history, to include any visa petitions or applications, marriage and divorce certificates, and birth certificates of children.

I. Gambling

An applicant 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.^[31] See INA 101(f)(5). See 8 CFR 316.10(b)(2)(x) and (xi). The gambling offenses must have been committed within the statutory period.

J. Habitual Drunkard

An applicant who is or was a habitual drunkard during the statutory period is precluded from establishing GMC.^[32] See INA 101(f)(1). See 8 CFR 316.10(b)(2)(xii). 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 applicant is or was a habitual drunkard.

K. Failure to Support Dependents

An applicant who willfully failed or refused to support his or her dependents during the statutory period cannot establish GMC unless the applicant establishes extenuating circumstances.^[33] See 8 CFR 316.10(b)(3)(i). See Hague Convention on the International Recovery of Child Support. The GMC determination for failure to support dependents includes consideration of whether the applicant has complied with his or her child support obligations abroad in cases where it is relevant.^[34] See Convention on the International Recovery of Child Support and Other Forms of Family Maintenance.

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.^[35] See Brukiewicz v. Savoretti, 211 F.2d 541 (5th Cir. 1954). See Petition of Perdiak, 162 F. Supp. 76 (S.D. Cal. 1958). See Petition of Dobric, 189 F. Supp. 638 (D. Minn. 1960). See In re Malaszenko, 204 F. Supp. 744 (D.N.J. 1962) (and cases cited). See Petition of Dobric, 189 F. Supp. 638 (D. Minn. 1960). See In re Huymaier, 345 F. Supp. 339 (E.D. Pa. 1972). See In re Valad, 465 F. Supp. 120 (E.D. Va. 1979). 

An applicant who fails to support dependents may lack GMC if he or she:

• Deserts a minor child;^[36] See U.S. v. Harrison, 180 F.2d 981 (9th Cir. 1950). 

• Fails to pay any support;^[37] See In re Malaszenko, 204 F. Supp. 744 (D.N.J. 1962). See In re Mogus, 73 F. Supp. 150 (W.D. Pa. 1947). or 

• Obviously pays an insufficient amount.^[38] See In re Halas, 274 F. Supp. 604 (E.D. Pa. 1967). See Petition of Dobric, 189 F. Supp. 638 (D. Minn. 1960).

If the applicant has not complied with court-ordered child support and is in arrears, the applicant 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 applicant established GMC.^[39] See 8 CFR 316.10(b)(3)(i). 

Extenuating Circumstances 

If the applicant shows extenuating circumstances, a failure to support dependents should not adversely affect the GMC determination.^[40] See Chapter 2, Adjudicative Factors, Section G, Extenuating Circumstances.

The officer should consider the following circumstances:

• An applicant’s unemployment and financial inability to pay the child support;^[41] See In re Huymaier, 345 F. Supp. 339 (E.D. Pa. 1972).

• 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;^[42] See Petition of Perdiak, 162 F. Supp. 76 (S.D. Cal. 1958).

• Whether the nonpayment was due to an honest but mistaken belief that the duty to support a minor child had terminated;^[43] See In re Valad, 465 F. Supp. 120 (E.D. Va. 1979). and

• Whether the nonpayment was due to a miscalculation of the court-ordered arrears.^[44] See Etape v. Napolitano, 664 F.Supp.2d 498, 517 (D Md 2009).

L. Adultery

An applicant who has an extramarital affair during the statutory period that tended to destroy an existing marriage is precluded from establishing GMC.^[45] See 8 CFR 316.10(b)(3)(ii).

Extenuating Circumstances

If the applicant shows extenuating circumstances, an offense of adultery should not adversely affect the GMC determination.^[46] See Chapter 2, Adjudicative Factors, Section G, Extenuating Circumstances. Extenuating circumstances may include instances where the applicant divorced his or her spouse but later the divorce was deemed invalid or the applicant and the spouse mutually separated and they were unable to obtain a divorce.^[47] See In re Petition of Schroers, 336 F. Supp. 1348 (S.D.N.Y. 1971). See In re Petition of Russo, 259 F. Supp. 230 (S.D.N.Y. 1966). See Dickhoff v. Shaughnessy, 142 F. Supp. 535 (SDNY 1956). 

M. Unlawful Acts

An applicant who has committed, was convicted, or imprisoned for an unlawful act or acts during the GMC period may be found to lack GMC.^[48] See INA 101(f). See 8 CFR 316.10(b)(3)(iii). This provision may apply to cases where an offense is not specifically listed in the other relevant GMC provisions but rises to the level of preventing the applicant from establishing GMC.^[49] See 8 CFR 316.10(b)(1) and (2) (Other relevant GMC regulations). This provision does not require the applicant to have been charged or convicted of the offense.

An “unlawful act” includes any act that is against the law, illegal or against moral or ethical standards of the community. The fact that an act is a crime makes any commission thereof an unlawful act.^[50] See U.S. v. Lekarczyk, 354 F. Supp. 2d 883 (W.D. Wis. 2005). See Jean-Baptiste v. United States, 395 F.3d 1190 (11th Cir.2005). Collateral estoppel bars a defendant who is convicted in a criminal trial from contesting this conviction in a subsequent civil action with respect to issues necessarily decided in the criminal trial. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 157 (1963).

Considering Extenuating Circumstances for Unlawful Acts

If the applicant shows extenuating circumstances, the commission of an unlawful act^[51] See 8 CFR 316.10(b)(3)(iii). or acts should not adversely affect the GMC determination.^[52] See INA 101(f). See 8 CFR 316.10(b)(3)(iii). See Chapter 2, Adjudicative Factors, Section G, Extenuating Circumstances.  An extenuating circumstance must pertain to the unlawful act and must precede or be contemporaneous with the commission of the unlawful act.^[53] See Jean-Baptiste v. United States, 395 F.3d 1190 (11th Cir.2005) citing Rico v. INS, 262 F. Supp.2d 6 (E.D.N.Y.2003).

An officer may not consider conduct or equities (including evidence of reformation or rehabilitation) subsequent to the commission of the unlawful act as an extenuating circumstance. Consequences after the fact and future hardship are not considered extenuating circumstances.^[54] See Jean-Baptiste v. United States, 395 F.3d 1190 (11th Cir.2005). If a jury or a court acquitted the applicant, he or she has not committed an unlawful act.

The factors considered in the determination are included in the denial notices in cases that result in an unfavorable determination. 

Examples of Unlawful Acts

The following are examples of offenses that may be considered under the unlawful acts regulation. Each GMC determination is made on a case-by-case basis, to include determinations involving an “unlawful act” consideration.

1. Unlawful Voting and False Claim to U.S. Citizenship for Voting

An applicant may fail to show GMC if he or she engaged in unlawful voting or falsely claimed U.S. citizenship for voting.^[55] See 18 U.S.C. 611 (Voting by aliens). See 18 U.S.C. 1015(f) (False claim to U.S. citizenship). In September 1996, Congress enacted legislation to address unlawful voting and false claims to U.S. citizenship for purposes of registering to vote or voting.^[56] See INA 212(a)(10)(D)(i) and INA 237(a)(6)(A) (Addressing unlawful voting). See INA 212(a)(6)(C)(ii)(I) and INA 237(a)(3)(D)(i) (Addressing false claims to U.S. citizenship). These provisions were added by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. 104-208 (September 30, 1996).

• A noncitizen who is convicted of unlawful voting may be fined, imprisoned up to one year, or both, and subject to removal.^[57] See 18 U.S.C. 611 (Voting by aliens).

• A noncitizen who is convicted of making a false claim to U.S. citizenship to register to vote or vote may be fined, imprisoned up to five years, or both, and subject to removal.^[58] See 18 U.S.C. 1015(f) (False claim to U.S. citizenship).

The officer may request the applicant to provide a sworn statement regarding his or her testimony on illegal voting or false claim to citizenship for voting. The officer may also require an applicant to obtain any relevant evidence, such as the voter registration card, applicable voter registration form, and voting record from the relevant board of elections commission.

The table below serves as a quick reference guide on the effect on GMC determinations by unlawful voting or for false claims to U.S. citizenship. Further guidance is provided below.

Offenses without Convictions

An officer may find the applicant to lack GMC if the applicant was not convicted of unlawful voting or false claim to citizenship for voting. The officer should consider the totality of the circumstances and weigh all favorable and unfavorable factors of each case, to include whether the applicant qualifies for an exception.

An applicant may only have engaged in unlawful voting if his or her conduct was unlawful under the relevant federal, state, or local election law. The officer should consider the controlling statutes in cases involving potential unlawful voting offenses, because some local municipalities permit lawful permanent residents (LPRs) or other noncitizens to vote in municipal elections.

The officer does not need to focus on the underlying election law for false claims to U.S. citizenship. An applicant may be considered to have made a false claim to U.S. citizenship if the following conditions have been met on or after September 30, 1996.

• The applicant actually falsely represented himself or herself as a U.S. citizen; and

• The applicant made such misrepresentation in order to register to vote or for voting. 

Convictions

A conviction for unlawful voting, by itself, generally should not bar an applicant from establishing GMC because the conviction is unlikely to be a CIMT.^[59] See 18 U.S.C. 611 (Voting by noncitizens). See 8 U.S.C. 1015(f) (False claim to U.S. citizenship). On the other hand, making a false claim to U.S. citizenship in order to register to vote or to vote is a CIMT. An applicant who is convicted of a CIMT is generally precluded from establishing GMC.

A conviction for making a false claim to U.S. citizenship in order to register to vote or for voting is a felony and prevents an applicant from showing GMC unless an exception applies.^[60] See INA 101(f)(3).

Imprisonment

Unless an applicant qualifies for an exception, the applicant is barred from establishing GMC if:

• The applicant was convicted and imprisoned for 180 days or more during the statutory period for unlawful voting or for making a false claim to U.S. citizenship;^[61] See Chapter 5 Conditional Bars for Acts in Statutory Period, Section D, Imprisonment for 180 Days or More. See INA 101(f)(7). or

• The applicant has multiple convictions with an aggregate sentence of five years or more, which include conviction(s) for unlawful voting or making a false claim to U.S. citizenship.^[62] See Chapter 5 Conditional Bars for Acts in Statutory Period, Section B, Aggregate Sentence of Five Years or More. See INA 101(f)(3).

Exceptions

In 2000, Congress added exceptions for GMC determinations and removal of noncitizens for unlawful voting and false claims to U.S. citizenship.^[63] See INA 212(a)(10)(D)(ii) and INA 237(a)(6)(B) (Unlawful voting exception). See INA 212(a)(6)(C)(ii)(I) and INA 237(a)(3)(D)(i) (False claims to U.S. citizenship exception). These provisions were added by the Child Citizenship Act of 2000 (CCA), Pub. L. 106-395 (October 30, 2000). The exceptions only apply to convictions that became final on or after October 30, 2000.^[64] See Section 201(d)(3) of the CCA, Pub. L. 106-395.

An applicant qualifies for an exception if the following conditions are met:

• The applicant’s natural or adoptive parents are or were U.S. citizens at the time of the violation;^[65] As a matter of policy, USCIS has determined that the applicant’s parents had to be U.S. citizens at the time of the illegal voting or false claim to U.S. citizenship in order to meet the first prong of this exception.

• The applicant permanently resided in the United States prior to reaching the age of 16 years; and

• The applicant “reasonably believed” at the time of the violation that he or she was a U.S. citizen.

To assess whether the applicant “reasonably believed” that he or she was a U.S. citizen at the time of the violation, the officer must consider the totality of the circumstances in the case, weighing such factors as the length of time the applicant resided in the United States and the age when the applicant became an LPR.

2. Failure to File Tax Returns or Pay Taxes

An applicant who fails to file tax returns or pay his or her taxes may be precluded from establishing GMC. LPRs are generally taxed in the same way as U.S. citizens. This means that their worldwide income may be subject to U.S. tax and may need to be reported on their U.S. tax return. The income of LPRs is subject to the same graduated tax rates that apply to U.S. citizens.^[66] See IRS Publication 519, U.S. Tax Guide for Aliens.

An applicant who did not originally file tax returns or did not pay the appropriate taxes may be able to establish GMC by submitting a letter from the tax authority indicating that:

• The applicant has filed the appropriate forms and returns; and

• The applicant has paid the required taxes, or has made arrangements for payment.

If the officer uncovers inconsistencies in facts submitted on the application for naturalization and material elements on the applicant’s tax return, such as marital status, number of children, and employment, the applicant may be precluded from establishing GMC due to an attempt to defraud the Internal Revenue Service (IRS) by avoiding taxes.^[67] The following involve defrauding the United States by avoiding taxes (a CIMT). See Matter of M‑, 8 I&N Dec. 535 (BIA 1960). See Matter of E‑, 9 I&N Dec. 421 (BIA 1961). See Carty v. Ashcroft, 395 F.3d 1081 (9th Cir. 2005) (State failure to pay taxes; evasion is same as fraud). See Wittgenstein v. INS, 124 F.3d 1244 (10th Cir. 1997) (State crime).