Citizenship is a coveted status that provides many benefits, such as the right to vote, obtain a passport, and live permanently in a country. For immigrants seeking citizenship, moral character is an important consideration in the naturalization process. This raises the question – does committing adultery prevent someone from becoming a citizen?
What is adultery?
Adultery refers to a married person having sexual relations with someone other than their spouse. It is considered a moral transgression and a sin in many cultures and religions. Some countries even criminalize adultery, though prosecution is rare. In the United States, most states have abolished laws against adultery but it can still be grounds for divorce.
Adultery and US citizenship
When applying for US citizenship, the applicant must demonstrate “good moral character” for a period of 3-5 years leading up to their naturalization application. Immigration officials have wide discretion to determine if an applicant meets this requirement.
In guidance to immigration officers, adultery is listed as one behavior that could preclude a finding of good moral character. However, adultery alone does not automatically disqualify an applicant. Officers are instructed to consider:
- The nature, circumstance, extent, and recentness of the conduct
- The applicant’s overall moral character
- Evidence of reform and rehabilitation
So in cases of adultery, officers are supposed to weigh multiple factors in making an individual determination on the applicant’s moral character. A one-time act of adultery committed several years in the past is unlikely to be disqualifying by itself, whereas a recent pattern of cheating may call an applicant’s character into question.
Adultery-related denials
There are very few published cases where US citizenship applications were denied solely because of adultery. More often, adultery is one factor cited along with other concerns such as multiple arrests, tax issues, lying during immigration procedures, or failure to support dependents.
For example, in Brea-Lozano v. Ashcroft (2004), the 9th Circuit upheld a denial where the applicant had committed adultery, fathered a child out of wedlock, and failed to support his children financially. The court found multiple grounds to conclude he lacked good moral character.
Likewise in Santamaria-Ames v. INS (1996), the 4th Circuit affirmed a denial where the applicant had committed adultery, provided false information to immigration officers, and was arrested multiple times for driving while intoxicated. Again, adultery was just one adverse factor among others.
These cases illustrate that adultery alone is rarely, if ever, the sole basis for denying citizenship on moral character grounds. It may, however, be cited as one piece of evidence that an applicant lacks good character.
Adultery laws around the world
While adultery is not commonly prosecuted in the United States, it remains a crime in many other countries. What implications could an adultery prosecution abroad have for someone seeking U.S. citizenship?
Adultery and good moral character
As discussed above, U.S. immigration officials have wide latitude to determine whether an applicant demonstrates good moral character. An adultery conviction in another country could potentially be relevant to that evaluation.
However, officers are again required to consider the totality of the circumstances. A single adultery conviction abroad would likely not be dispositive on its own, but could raise concerns in combination with other adverse factors.
Effect of foreign pardons
If an applicant received a pardon or expungement for the adultery conviction from the foreign country, that would strengthen their case for good moral character. Immigration officers may give less weight to foreign convictions that have been formally nullified or forgiven under that country’s laws.
For example, in Hajro v. Barrett (1987), a federal court overturned the denial of naturalization for an applicant who had an adultery conviction in Yugoslavia. The court noted that he had received an amnesty/pardon from the Yugoslavian government, and therefore the conviction could not be the sole basis for finding lack of good moral character.
Adultery and unlawful acts
Apart from good moral character, adultery convictions abroad could also pose concerns related to the “unlawful acts” bar to naturalization. This provides that an applicant is ineligible if they have committed a crime involving moral turpitude during the previous 5 years.
Whether adultery qualifies as a crime involving moral turpitude depends on the specifics of the foreign law in question. Adultery laws motivated by morality and religion are more likely to trigger the unlawful acts bar compared to laws intending to protect the sanctity of marriage.
This nuance was discussed in Marcantonio v. U.S. (1950), where the court found that adultery under Italian law did not involve moral turpitude. The court held that applicant’s Italian adultery conviction did not preclude naturalization.
So in sum, adultery convictions abroad may raise concerns but do not create an automatic bar if the applicant has demonstrated reform or received a pardon. Immigration officers have to evaluate each case individually.
Options if denied due to adultery
What recourse does an applicant have if their naturalization application is denied due to adultery or an adultery-related conviction?
Appeal the decision
After receiving a denial, the applicant can file an administrative appeal with U.S. Citizenship and Immigration Services (USCIS). This requests a hearing with an immigration officer to review and reconsider the decision.
To support their appeal, the applicant can provide evidence of mitigating circumstances around the adultery, proof of good character from family/friends, and documentation of rehabilitation such as therapy or counseling.
Reapply for citizenship
If the administrative appeal is unsuccessful, the applicant can reapply for naturalization after a waiting period, typically one year. In the time before refiling, the applicant should document evidence of good moral character and community service to strengthen their new application.
Seek a waiver
In some cases, it may be possible to obtain a waiver for the good moral character requirement from USCIS. This is granted at the agency’s discretion on a case-by-case basis.
The applicant must convince USCIS that their adultery was an isolated incident and they have demonstrated exemplary conduct and civic contributions in the years since. Supporting documentation should highlight the applicant’s remorse, rehabilitation, and consistent moral character over a long period.
Waivers for the good moral character requirement are difficult to obtain and only granted in a small fraction of cases. But it provides a last option if denied citizenship specifically due to adultery.
Conclusion
In summary, adultery alone is very unlikely to result in denial of U.S. citizenship, but may be a contributing factor considered along with other concerns. Adultery convictions in other countries may trigger a bar to naturalization in some cases, but can potentially be mitigated by a pardon or other evidence of reform.
Applicants denied due to adultery-related reasons have the option to appeal, reapply at a later date, or in limited cases seek a waiver. While adultery raises moral concerns, immigration officers are required to evaluate each applicant holistically based on the totality of the evidence.
