By Cyrus D. Mehta and Kaitlyn Field*
The Trump Administration has been creatively discovering methods to place obstacles within the path of individuals making use of for US citizenship and different immigration advantages. On this newest impediment, broad and amorphous phrases equivalent to “anti-Americanism” and “good ethical character” have been deployed as methods to guage, and maybe deny, a declare to citizenship, everlasting residence or one other immigration profit.
Heightened Good Ethical Character Commonplace
On August 19, 2025, USCIS issued a Coverage Alert modifying the usual for analysis of excellent ethical character within the naturalization context to embody a “holistic evaluation of an alien’s conduct, adherence to societal norms, and optimistic contributions that affirmatively show good ethical character”. The Coverage Alert emphasizes that USCIS officers should now “account for an alien’s optimistic attributes and never merely the absence of misconduct”, and “place larger emphasis on an alien’s optimistic attributes and contributions in GMC determinations”, together with:
- Sustained group involvement and contributions in the USA.
- Household caregiving, duty, and ties in the USA.
- Academic attainment.
- Secure and lawful employment historical past and achievements.
- Size of lawful residence in the USA.
- Compliance with tax obligations and monetary duty in the USA.
This coverage shift is a major departure from the earlier USCIS coverage regarding good ethical character. Though the INA doesn’t particularly defines good ethical character, however USCIS had beforehand held naturalization candidates to the usual of a mean U.S. citizen, quite than requiring them to supply proof of exemplary character or contributions. See In re Mogus, 73 F.Supp. 150 (W.D. Pa. 1947); Petition of De Leo, 75 F. Supp. 896 (W.D. Pa. 1948); and Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019). Holding naturalization purposes to the usual of a mean U.S. citizen is in step with 8 C.F.R. § 316.10(a)(2), which additionally additionally explicitly states that U.S. Citizenship and Immigration Companies (USCIS) should contemplate “the requirements of the typical citizen in the neighborhood of residence” when assessing an applicant’s declare of excellent ethical character. The USCIS evaluated good ethical character based mostly on the absence of sure prison convictions and different critical offenses. Not so anymore after the coverage shift. Candidates for citizenship won’t must be ready to supply optimistic proof of excellent ethical character at a naturalization interview. This may make it extra onerous for candidates to incorporate quite a few paperwork to make sure that the examiner is glad with good ethical character.
Certainly, USCIS appears to be elevating the usual that will not be contemplated within the INA or the rules. For example, USCIS spokesman Matthew J. Tragesser advised Newsweek: “U.S. citizenship is the gold commonplace of citizenship—it ought to solely be supplied to the world’s better of the perfect. Right this moment, USCIS is including a brand new component to the naturalization course of that ensures America’s latest residents not solely embrace America’s tradition, historical past, and language however who additionally show Good Ethical Character. This memo ensures that USCIS officers are accounting for an alien’s optimistic contributions to American society—together with group involvement, achievements, and monetary duty quite than the absence of their misconduct. USCIS will proceed to revive integrity within the nation’s immigration system—particularly on the subject of the distinguished privilege of citizenship.”
In keeping with the authors, it isn’t applicable for the USCIS to require that an applicant show that they’re the “world’s better of the perfect.” There’s a separate class for immigration classification termed because the “particular person of extraordinary capacity” pursuant to INA 203(b)(1)(A). If a naturalization applicant should show that they’re the “world’s better of the perfect” Congress ought to have required this within the INA and that’s not the case. An applicant who’s in any other case eligible for naturalization and haven’t been convicted of a disqualifying offense ought to be capable of grow to be a citizen even when they will not be the “world’s better of the perfect.”
One could presently be unemployed as a result of they can’t discover a job or they’ve retired, however that shouldn’t be used in opposition to them for not having secure employment. Equally, one could also be regulation abiding however could not have sustained group involvement and contributions to the US. A naturalization applicant needs to be judged to the usual of a mean US citizen and to not the “world’s better of the perfect.”
Anti-Americanism
On the identical day, USCIS promulgated a second Coverage Alert emphasizing that officers ought to assess whether or not a noncitizen has “endorsed, promoted, supported, or in any other case espoused the views of a terrorist group or group, together with those that help or promote anti-American ideologies or actions, antisemitic terrorism, antisemitic terrorist organizations, and antisemitic ideologies, in any case involving an train of discretion”. The Coverage Alert highlights a number of case varieties the place USCIS workout routines discretion, together with nationwide curiosity waivers, requests for extension of keep, adjustments of standing, reinstatement of F or M nonimmigrant standing, and sure “EB-5 investor petitions and purposes in instances involving threats to the nationwide curiosity, fraud, deceit, misrepresentation, and prison misuse”. “Anti-American ideologies or actions” aren’t outlined within the Coverage Alert, which raises considerations that the time period might be utilized in a approach that’s overbroad or punishes noncitizens for speech that’s political or essential of the Trump administration.
The Coverage Alert additionally references INA § 313(a) which supplies {that a} noncitizen “(1) who advocates or teaches, or who’s a member of or affiliated with any group that advocates or teaches, opposition to all organized authorities; or (2) who’s a member of or affiliated with (A) the Communist Get together of the USA; (B) another totalitarian occasion of the USA; (C) the Communist Political Affiliation; (D) the Communist or different totalitarian occasion of any State of the USA, of any overseas state, or of any political or geographical subdivision of any overseas state; (E) any part, subsidiary, department, affiliate, or subdivision of any such affiliation or occasion…” shouldn’t be eligible for naturalization.
INA§ 313(a), nevertheless, applies within the naturalization context, the place good ethical is assessed extra critically. This commonplace shouldn’t be used to find out whether or not a noncitizen’s actions are anti-American and represent a foundation for denying an software for adjustment or reinstatement of standing. That is very true if a noncitizen’s opposition to, for instance, the Trump administration’s tariffs or Israel’s conflict in Gaza might be interpreted as anti-American exterior the naturalization context.
The Trump Administration officers are consistently reminding noncitizens that being on a visa within the US or on a inexperienced card is a privilege and never a proper, and noncitizens must observe the regulation to make sure that they keep out of bother. We beg to disagree. How does the USCIS outline “anti-Americanism.” Being essential of the Trump administration or for that matter any administration shouldn’t be deemed as anti-American. Certainly, it needs to be thought-about a virtuous exercise to be essential of America or its administration as it’s by means of criticism and dissent that we will mirror on all factors of view, self-correct, develop and evolve.
The First Modification supplies that “Congress shall make no regulation … abridging the liberty of speech, or of the press.” The Supreme Court docket has made clear the Structure’s “freedom of speech and of press is accorded aliens residing on this nation.” Wixon, 326 U.S. at 148 (citing Bridges, 314 U.S. 252). The First Modification doesn’t “acknowledge[] any distinction between residents and resident aliens.” Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n.5 (1953)
; see additionally Wixon, 326 U.S. at 161 (Murphy, J., concurring) (“[O]nce an alien lawfully enters and resides on this nation he turns into invested with the rights assured by the Structure to all individuals inside our borders … together with these protected by the First Modification.” (cleaned up)).
This has been established regulation for greater than 70 years. See, e.g., Am.-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1065 (ninth Cir. 1995)
; Rafeedie v. I.N.S., 795 F. Supp. 13, 22 (D.D.C. 1992)
(“It has lengthy been settled that aliens inside the USA benefit from the safety of the First Modification ….”) (footnote and citations omitted). That’s as a result of the First Modification operates as a restraint on authorities subjecting these beneath its energy to disfavored remedy based mostly on their opinions. See typically Pahls v. Thomas, 718 F.3d 1210, 1239 (tenth Cir. 2013).
The Trump Administration can not broadly use anti-Americanism as a cudgel to punish noncitizens for speech it disfavors. That is antithetical to the ideas set forth within the First Modification. Deploying anti-Americanism as a weapon to punish noncitizens or can be entrants to the US would additionally diminish America’s standing on the earth and would place it on par with a pariah totalitarian state.
*Kaitlyn Field is a Associate at Cyrus D. Mehta & Companions PLLC.
