A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Monday, November 4, 2019

DUIs Will Affect Eligibility for Naturalization and Other Benefits

Certain forms of immigration benefits or relief, including naturalization and cancellation of removal, will only be granted to those that demonstrate "good moral character".

Cancellation of removal is available to those undergoing deportation who have shown good moral character in the 10 years leading up to the decision, among other requirements. The Attorney General can grant the applicant relief and confer permanent resident status to him/her.

Recently, an Attorney General decision, Matter of Castillo-Perez, held that having 2 or more DUI convictions presumes lack of good moral character for cancellation of removal.  Although an applicant can rebut this presumption with strong evidence showing that the DUIs are "aberrations" of their otherwise good moral character, it is unclear from the decision what such contrary evidence can be.

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The term "good moral character" is somewhat abstract. The statute INA 101(f) lists some behaviors and conditions that would preclude a finding of good moral character. Someone who is a habitual drunkard or whose income is from illegal gambling lacks good moral character. Someone who has been convicted of a serious criminal offense during the relevant period, who gave false testimony to gain immigration benefits, or who participated in things like genocide, torture, and killing does not have good moral character. Notably, someone who has been jailed for a total of at least 180 days during the relevant period is also determined not to have good moral character. Outside of these conditions, however, law officials have discretion to judge a person's good moral character. 

The Attorney General's decision introduces another level of complexity to what constitutes "good moral character". The decision counts all state and federal convictions of DUI against the applicant. Yet, the definition of DUI differs with jurisdiction. All 50 states have their own definition, some relatively lax and some harsh. New Jersey, for example, does not classify a DUI as an indictable offense but as a traffic violation. Statutes in different jurisdictions also have different elements and defenses regarding DUI offenses.  Consequently, the decision in Matter of Castillo-Perez covers a broad range of behaviors that have different levels of culpability.

Although the relief sought in the case is cancellation of removal, its impact will be felt in other applications, especially naturalization applications, which require applicants to have at least 5 years of good moral character.

It is noteworthy to know that the courts have held that simple DUIs are not "crimes involving moral turpitude," and they do not bar a foreigner from applying for a U.S. visa or render a person deportable from the U.S. The Attorney General clearly intends to further tighten the requirements for immigration benefits by this decision.

It is uncertain how future decisions involving DUIs and good moral character will play out. For now, if you have one or more DUI convictions, you should first consult with a qualified immigration attorney before submitting an immigration petition.  

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