Chapter 7: Attachment to the Constitution
A. Attachment to the Constitution
An applicant for naturalization must show that he or she has been and continues to be a person attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the United States during the statutorily prescribed period.[1] See INA 316(a). See 8 CFR 316.11. “Attachment” is a stronger term than “well disposed” and implies a depth of conviction, which would lead to active support of the Constitution.[2] See In re Shanin, 278 F. 739 (1922).
Attachment includes both an understanding and a mental attitude including willingness to be attached to the principles of the Constitution. An applicant who is hostile to the basic form of government of the United States, or who does not believe in the principles of the Constitution, is not eligible for naturalization.[3] See Allan v. U.S., 115 F.2d 804 (1940).
In order to be admitted to citizenship, naturalization applicants must take the Oath of Allegiance in a public ceremony. At that time, an applicant declares his or her attachment to the United States and its Constitution.[4] See INA 337. See 8 CFR 337.1. See Part J, Oath of Allegiance. In order to be admitted to citizenship:
The applicant must understand that he or she is taking the Oath freely without any mental reservation or purpose of evasion;
The applicant must understand that he or she is s incerely and absolutely renouncing all foreign allegiance;
The applicant must understand that he or she is giving true faith and allegiance to the United States, its Constitution and laws;
The applicant must understand that he or she is intending to make the United States his or her permanent home where he or she will fully assume residency; and
The applicant must understand that he or she is discharging all duties and obligations of citizenship including military and civil service when required by the law.
The applicant’s true faith and allegiance to the United States includes supporting and defending the principles of the Constitution by demonstrating an acceptance of the democratic, representational process established by the U.S. Constitution, and the willingness to obey the laws which result from that process.[5] The attachment to the Constitution and oath requirements may be modified for religious objections or waived for applicants with an inability to comprehend the oath. Prior to November 6, 2000, certain disabled applicants were precluded from naturalization because they could not personally express intent or voluntary assent to the oath requirement. However, subsequent legislation authorized USCIS to waive the attachment and the oath requirements for any individual who has a medical condition physical or developmental disability or mental impairment that makes him or her unable to understand or communicate an understanding of the meaning of the oath. See Pub. L. 106-448 (November 6, 2000). See Part J, Oath of Allegiance, Chapter 3, Oath of Allegiance Modifications and Waivers.
B. Selective Service Registration
1. Males Required to Register
In general, males must register with Selective Service within 30 days of their 18th birthday but not after reaching 26 years of age. The U.S. Government suspended the registration in April of 1975 and resumed it in 1980. An applicant who refused to or knowingly and willfully failed to register for Selective Service negates his disposition to the good order and happiness of the United States, attachment to the principles of the Constitution, good moral character, and willingness to bear arms on behalf of the United States.[6] See INA 316(a) and INA 337(a)(5)(A). See the Military Selective Service Act of 1940.
Applicants may register for Selective Service at their local post office, return a Selective Service registration card received by mail, or online at the Selective Service System website.[7] See www.sss.gov. Confirmation of registration may be obtained by calling (847) 688-6888 or online at www.sss.gov. The officer may also accept other persuasive evidence presented by an applicant as proof of registration.
USCIS assists with the registration process by transmitting the appropriate data to the Selective Service System (SSS) for male applicants between the ages of 18 and 26 who apply for adjustment of status.[8] See forthcoming Volume 7, Adjustment of Status. After registering the eligible male, Selective Service will send an acknowledgement to the applicant that can be used as his official proof of Selective Service registration.
2. Failure to Register for Selective Service
USCIS will deny a naturalization application when the applicant refuses to register with Selective Service or has knowingly and willfully failed to register during the statutory period.[9] Failure to register is not a permanent bar to naturalization. The officer may request for the applicant to submit a status information letter and registration acknowledgement card before concluding that he failed to register.
The status information letter will indicate whether a requirement to register existed. The applicant must show by a preponderance of the evidence that his failure to register was not a knowing or willful act.[10] See 50 U.S.C. App. 462. Failure on the part of USCIS or SSS to complete the process on behalf of the applicant, however, will not constitute a willful failure to register on the part of the applicant.
The denial notice in cases where willful failure to register is established may also show that in addition to failing to register, the applicant is not well disposed to the good order and happiness of the United States. This determination depends on the applicant’s age at the time of filing the application and up until the time of the oath:
Applicants Under 26 Years of Age
The applicant is generally ineligible.
Applicants Between 26 and 31 Years of Age
The applicant may be ineligible for naturalization. USCIS will allow the applicant an opportunity to show that he did not knowingly or willfully fail to register, or that he was not required to do so.
Applicants Over 31 Years of Age
The applicant is eligible. This is the case even if the applicant knowingly and willfully failed to register because the applicant’s failure to register would be outside of the statutory period.
3. Males Not Required to Register
The following classes of males are not required to register for Selective Service:
Males over the age of 26
Males who did not live in the United States between the ages of 18 and 26 years
Males who lived in the United States between the ages of 18 and 26 years but who maintained lawful nonimmigrant status for the entire period
Males born after March 29, 1957 and before December 31, 1959[11] See Proc. No. 4771 of July 2, 1980 1-101, 94 Stat. 3775 (1980). See 50 U.S.C. App. 456(a). See Sec. 3(a) of the Military Selective Service Act [50 U.S.C. App. 453(a)].
C. Draft Evaders
In general, the law prohibits draft evaders and deserters from the U.S. armed forces during wartime from naturalizing for lack of attachment to the Constitution and favorable disposition to the good order of the United States.[12] See INA 316(a)(3).
A conviction by a court martial or a court of competent jurisdiction for a military desertion or a departure from the United States to avoid a military draft will preclude naturalization.[13] See INA 314. USCIS may obtain such information from the applicant’s testimony during the naturalization examination (interview), security checks, and from the Request for Certification of Military or Naval Service (Form N-426).[14] See Part I, Military Members and their Families.
An applicant who admits to desertion during wartime, but who has not been convicted of desertion by court martial or court of competent jurisdiction may still be eligible for naturalization.[15] See State v. Symonds, 57 Me. 148 (1869). See Holt v. Holt, 59 Me. 464 (1871). See McCafferty v. Guyer, 59 Pa. 109 (1868). An applicant’s military record may list him or her as a deserter but without a final conviction.
D. Membership in Certain Organizations
The officer will review an applicant’s record and testimony during the interview on the naturalization application to determine whether he or she was ever a member of or in any way associated (either directly or indirectly) with:
The Communist Party;
Any other totalitarian party; or
A terrorist organization.
Current and previous membership in these organizations may indicate a lack of attachment to the Constitution and an indication that the applicant is not well disposed to the good order and happiness of the United States.[16] See INA 313 and INA 316. See 8 CFR 316. Membership in these organizations may also raise issues of lawful admission, good moral character,[17] See Part F, Good Moral Character. or may even render the applicant removable.[18] See INA 237(a)(4).
The burden rests on the applicant to prove that he or she has an attachment to the Constitution and that he or she is well disposed to the good order and happiness of the United States, among the other naturalization requirements. An applicant who refuses to testify or provide documentation relating to membership in such organizations has not met the burden of proof. USCIS may still deny the naturalization application under such grounds in cases where such an applicant was not removed at the end of removal proceedings.[19] See INA 313. See the Legal Decisions and Opinions of the Office of Immigration Litigation Case Summaries - No. 93-380, Price v. U.S. Immigration and Naturalization USCIS, seeking review of Price v. US INS, 962 F.2d. 836 (9th Cir. 1992).
1. Communist Party Affiliation
An applicant cannot naturalize if any of the following are true within ten years immediately preceding his or her filing for naturalization and up until the time of the Oath of Allegiance:
The applicant is or has been a member of or affiliated with the Communist Party or any other totalitarian party;
The applicant is or has advocated communism or the establishment in the United States of a totalitarian dictatorship;
The applicant is or has been a member of or affiliated with an organization that advocates communism or the establishment in the United States of a totalitarian dictatorship, either through its own utterance or through any written or printed matter published by such organization;
The applicant is or has been a subversive, or a member of, or affiliated with, a subversive organization;
The applicant is knowingly publishing or has published any subversive written or printed matter, or written or printed matter advocating communism;
The applicant is knowingly circulating or has circulated, or knowingly possesses or has possessed for the purpose of circulating, subversive written or printed matter, or written or printed matter advocating communism; or
The applicant is or has been a member of, or affiliated with, any organization that publishes or circulates, or that possesses for the purpose of publishing or circulating, any subversive written or printed matter, or any written or printed matter advocating communism.
2. Exemptions to Communist Party Affiliation
The burden is on the applicant to establish eligibility for an exemption. An applicant may be eligible for naturalization if he or she establishes that:
The applicant’s membership or affiliation was involuntary;
The applicant’s membership or affiliation was without awareness of the nature or the aims of the organization, and was discontinued when the applicant became aware of the nature or aims of the organization;
The applicant’s membership or affiliation was terminated prior to his or her attaining the age of 16;
The applicant’s membership or affiliation was terminated more than 10 years prior to the filing for naturalization;
The applicant’s membership or affiliation was by operation of law; or
The applicant’s membership or affiliation was necessary for purposes of obtaining employment, food rations, or other essentials of living.[20] See INA 313(d).
Even if participating without awareness of the nature or the aims of the organization, the applicant’s participation must have been minimal in nature. The applicant must also demonstrate that membership in the covered organization was necessary to obtain the essentials of living like food, shelter, clothing, employment, and an education, which were routinely available to the rest of the population.
For purposes of this exemption, higher education qualifies as an essential of living only if the applicant can establish the existence of special circumstances which convert the need for higher education into a need as basic as the need for food or employment, and that he or she participated only to the minimal extent necessary to receive the essentials of living.
However, unless the applicant can show special circumstances that establish a need for higher education as basic as the need for food or employment, membership to obtain a college education is not excusable for obtaining an essential of living.[21] See Langhammer v. Hamilton, 194 F. Supp. 854, 857 (1961).
3. Nazi Party Affiliation
Applicants who were affiliated with the Nazi Government of Germany or any government occupied by or allied with the Nazi government of Germany, either directly or indirectly, are ineligible for admission into the United States and permanently barred from naturalization.[22] See INA 212(a)(3)(E). The applicant is responsible for providing any evidence or documentation to support a claim that he or she is not ineligible for naturalization based on involvement in the Nazi Party.
4. Persecution and Genocide
An applicant who has engaged in persecution or genocide is permanently barred from naturalization because he or she is precluded from establishing good moral character.[23] See INA 101(a)(42), INA 101(f), and INA 208(b)(2)(A)(i). See Part F, Good Moral Character, Chapter 4, Permanent Bars to GMC, Section C, Persecution, Genocide, Torture, or Severe Violations of Religious Freedom. Additionally, an applicant who engaged in persecution or genocide prior to admission as an LPR would have been inadmissible. Such an applicant would not have lawfully acquired LPR status in accordance with all applicable provisions and would be ineligible for naturalization.[24] See INA 318. See Chapter 2, LPR Admission for Naturalization. Such persons may also be deportable.[25] See INA 212(a)(3)(E).
5. Membership or Affiliation with Terrorist Organizations
Information concerning an applicant’s membership in a terrorist organization implicates national security issues. Such information is important in determining the applicant’s eligibility in terms of the good moral character (GMC) and attachment requirements.