According to the legal opinion, issued by General Counsel Paul V. Virtue on Apr. 27, 1998, applicants who should have registered for Selective Service are barred from naturalization only if they knowingly and willfully failed to register during the period for which they must establish good moral character.  If an applicant’s knowing and willful failure to register occurred outside of that period, it does not result in an absolute bar to naturalization.  However, the INS may consider the failure to register in assessing an applicant’s eligibility to naturalize.

Among the conditions an applicant for naturalization must satisfy is the requirement, at section 316(a)(3) of the Immigration and Nationality Act, that he or she be "a person of good moral character."  As stated in the opinion, the period during which an applicant must demonstrate he or she has good moral character begins five years before the applicant files the naturalization application and continues through the date of admission to citizenship.  In addition, applicants must be willing "to bear arms on behalf of the United States when required by the law."  With the exception of aliens maintaining lawful nonimmigrant status, all males born after 1959 and residing in the U.S. must register for Selective Service when they reach their 18th birthday.  The obligation continues until their 26th birthday.

Although the INA does not make compliance with the Selective Service requirement a condition for naturalization, the memo notes that the INS would nevertheless be "fully justified" in finding that a man who refuses to comply is unwilling to bear arms when the law requires.  Such a finding would support the further inference that the applicant "is not disposed to the good order and happiness" of the U.S.  Accordingly, naturalization applicants who fall within the relevant age range and refuse to register for Selective Service should be denied, the opinion instructs.

Once the applicant has turned 26, the situation changes because, though he once had the duty to register, he no longer has such a duty.  However, the opinion adds that the INS may still find the applicant ineligible to naturalize on the basis of his failure to have registered unless he can establish that he did not knowingly and willfully fail to do so.  The burden of proof rests with the applicant, and unless he can prove the contrary by a "preponderance of the evidence," the INS may presume his failure to register to have been knowing and willful.

The day after the applicant’s 31st birthday, the situation changes again, because if he files his naturalization application on that date, or later, his failure to register will have occurred outside the period during which he must demonstrate good moral character.  In such cases, the opinion instructs, the agency should first determine whether the failure to register was knowing and willful.  If it was not, the INS should conclude that the applicant has satisfied the good moral character requirement, unless other adverse factors are present.  And even if the applicant’s failure were knowing and willful, he would not be absolutely barred from eligibility for naturalization.  As long as the INS is satisfied that the applicant now meets the INA’s good moral character requirement, naturalization could be granted even if he once may not have been able to satisfy it.

The opinion advises that the INS need not automatically disregard failures to register in the cases of applicants who are at least 31 years old and reiterates that the agency is entitled to consider improper conduct that occurred outside the statutory period.  If the INS does make an adverse finding regarding an applicant’s eligibility based on both a failure to register and other adverse factors that occurred outside the statutory period, the agency is instructed to explain in its decision why such factors combine to prove ineligibility for naturalization under INA section 316(a)(3).  In reviewing such a decision, the opinion notes, a district court would have the legal authority to decide the matter de novo and make its own judgement as to the effect of a failure to register on the applicant’s eligibility for naturalization.

In closing, the opinion rejects the argument that the permanent bars to naturalization contained in INA sections 314 and 315 should be extended to individuals who knowingly and willfully fail to register for Selective Service.  Although Congress specifically enacted those provisions to permanently bar convicted deserters, persons convicted of departing to avoid the draft, and those who obtain an exemption from induction on the basis of their alien status, it did not enact a similar provision for persons who fail to register for the draft. Only under INA section 316(a)(3), if at all, would failure to register for Selective Service warrant a denial of naturalization.

A memo to all INS regional directors dated Mar. 23, 1999, addresses a different aspect of naturalization denials.  It notes that naturalization denials have increased in nearly every regional office, prompting many congressional offices, community groups, and the media to contact the INS for an explanation.  Specifically, those groups have raised the possibility that some applicants may have been improperly denied for failure to appear at a fingerprint appointment, interview, or ceremony because the INS did not send relevant notices to the applicants’ current addresses.

According to the memo, the agency is attempting to solve the problem by setting up a toll-free "800" number through which address changes can be centralized and developing uniform procedural guidance INS offices should follow in the cases of individual applicants who claim to have been denied in error.

In the interim, the INS should "reopen on service motion" the applications of individuals who both claim that they were improperly denied and present a good faith claim to have notified the INS of an address change.  The memo concludes with the statement that additional guidance outlining procedures for any necessary data collection will follow under separate cover.