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.  

Section 212(h) Waiver Only Available In Conjunction with an Adjustment Application

The Board of Immigration Appeals (BIA) held that a waiver of inadmissibility under Section 212(h) of the Immigration and Nationality Act can not be filed by itself in removal proceedings without a concurrently filed application for adjustment of status, and a waiver may not be granted nunc pro tunc (after the fact) to avoid the requirement that the alien must establish eligibility for adjustment. Matter of Giovanny RIVAS, 26 I&N Dec. 130 (BIA 2013).

Section 212(h) Waiver

Section 212(h) of the Immigration and Nationality Act (INA) may waive certain criminal convictions when a person is applying for admission into the United States or when a person is applying for adjustment of status in the United States.  (For a discussion of when a lawful permanent resident is considered seeking admission to the United States, follow this link.)

For example, Section 212(h)(1)(A) waives certain criminal activities (e.g., crimes involving moral turpitude, or "CIMT") which are 15 year old before the date of a foreigner application for a visa, admission, or adjustment of status, if the admission would not be contrary to the national welfare, safety, or security of the U.S. and if the foreigner has been rehabilitated. Section 212(h)(1)(B) waives crimes involving moral turpitude in the case of foreigner or lawful resident who demonstrates that his removal from the United States would result in extreme hardship to his United States citizen or lawful resident parent, spouse, son, or daughter.

Background of RIVAS

The respondent in RIVAS is a native and citizen of Colombia who was admitted to the United States as a lawful permanent resident on August 11, 1998. In 2001, he was convicted of two petite larcenies in Florida and was found deportable by virtue of his having been convicted of two CIMTs not arising out of a single scheme of criminal misconduct.  He applied for a waiver of inadmissibility under section 212(h). The respondent left the United States on several occasions after his 2001 convictions, reentered the country, and applied for 212(h) waiver in removal proceedings.  The immigration judge found the respondent inadmissible for reentry, but granted him 212(h) waiver nunc pro tunc pursuant to Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980).

The DHS argues that the respondent can only qualify for a section 212(h) waiver if he also applies for adjustment of status, and since he is not eligible to adjust status, he is ineligible for the waiver. The issue is whether the immigration judge erred in granting the respondent a nunc pro tunc section 212(h) waiver on a “stand alone” basis  without a concurrently filed I-485 adjustment application.

BIA Decision

BIA held that the respondent is statutorily ineligible for the waiver because he is neither an arriving alien seeking to waive a ground of inadmissibility nor one seeking to waive inadmissibility in conjunction with an application for adjustment of status. The respondent’s situation is different from that of the alien in Sanchez because he does not have a pending application for adjustment of status. 

The Immigration Act of 1990 amended Section 212(h) by restricting the waiver to foreign nationals who are applying or reapplying “for a visa, for admission to the United States, or adjustment of status.”

On appeal, the respondent also cites Matter of Abosi, 24 I&N Dec. 204 (BIA 2007) to support his eligibility for a 212(h) waiver.  However, BIA noted that since the respondent in Abosi was an arriving alien seeking readmission, he did not have to establish eligibility for adjustment of status. The respondent in RIVAS, however, is in the country in removal proceedings and therefore must file a concurrent adjustment application in order to seek a waiver of the grounds of removal.

Other Federal Circuits including the Fifth Circuit, the Seventh Circuit and the Eleventh Circuit also support the BIA position as a reasonable statutory interpretation of the law.  These federal courts reason that, because of the rights and privileges lawful permanent residents enjoy, it is proper to hold them to a higher standard and level of responsibility than unlawful foreigners. Therefore a waiver is not available to them unless they are also otherwise eligible to apply for adjustment.

Criminal Grounds of Inadmissibility (or Non-Admission) in Immigration Law

Section 212 of the Immigration and Nationality Act (“INA”) makes certain classes of foreigners ineligible to receive U.S. visas or to be admitted into the country.  Some major grounds for non-admission or “inadmissibility” include health-related grounds, criminal and related grounds, security and related grounds, public charge, foreign labor lacking certification by Labor Department, illegal entrants and violators, etc.  This article will focus on the issue of criminal grounds of inadmissibility.  Foreigners who have a criminal background are bound to encounter obstacles when applying for admission into the United States either as immigrants or temporary visitors.  Although there are some exceptions and waivers available to alleviate the negative consequences of minor offenses, serious criminal convictions can be a permanent bar to admission for foreign nationals. 

Foreigners subject to the Grounds of Non-Admission

Who exactly are subject to these grounds of inadmissibility?  Foreigners who are subject to grounds of inadmissibility include individuals who are applying for admission at a U.S. port of entry as well as permanent residents (green card holders) who are seeking readmission after foreign travel.  Even individuals who are physically present in the U.S. may still be subject to the grounds of inadmissibility.  For instance, noncitizens who entered the U.S. without having been inspected by an immigration officer (e.g., by crossing the border) are subject to all grounds of inadmissibility.   Intending immigrants present in the U.S. who are seeking to adjust their status to become permanent residents must also establish that they are admissible under the law.    

Major Criminal Grounds of Inadmissibility

Under §212(a)(2) of the INA, the following classes of foreign aliens are subject to the criminal grounds of inadmissibility:     Foreigners convicted of, who admits having committed, or who admits the essential elements of a crime involving moral turpitude (CIMT) or  a controlled substance violation;   Foreigners convicted of two or more offenses for which the aggregate sentences to confinement were five years or more;   Foreigners whom a consular officer or the attorney general knows or has reason to believe is a drug trafficker;  Foreigners coming to the U.S. to engage in prostitution or commercialized vice;   Foreigners engaged in human trafficking;  Foreigners whom a consular officer or the attorney general knows, or has reason to believe, to be money launders or who are coming to engage in money laundering in the U.S.

Exceptions to Crimes involving Moral Turpitude

Crimes involving moral turpitude remains to be the most common reasons for foreigners to be refused admission to the U.S. However, the statute provides two exceptions to the CIMT ground of criminal inadmissibility, namely, juvenile exception and the petty offense exception.  The juvenile exception applies if the offender committed the crime under the age of 18 and, if a term of imprisonment was imposed, the offender was released more than five years before the date of application for a visa or admission.  The petty offense exception applies when the maximum penalty possible for the crime did not exceed one year of imprisonment and, if the offender was convicted of such crime, he or she was not sentenced to more than 6 months of imprisonment.  

Note: These exceptions only apply to the CIMT ground of inadmissibility but not to the other grounds.

What constitutes Crimes involving Moral Turpitude

While no clear definition exists within the law for CIMTs, the term has been held by the courts to include that demonstrate “baseness, vileness, and depravity” on the part of the perpetrator.  CIMTs usually require the perpetrator to have an evil mind such as an intent to defraud or an intent to harm another person.  The most common CIMTs include fraud, misrepresentation, theft, and other crimes against property.  Most crimes of violence involving intent, such as murder, voluntary manslaughter, mayhem, robbery, rape, etc., also are CIMTs. 

On the other hand, simple assault usually is not classified as a CIMT without aggravating circumstances.  Similarly, driving under influence (DUI) is not considered a crime of moral turpitude unless the driver harbors some sort of unlawful intent.  For example, Under Arizona law, the offense of aggravated driving under the influence, which requires the driver to know that he or she is prohibited from driving under any circumstances, is a crime involving moral turpitude.  

One’s Admission to the Crime is Enough

It is important to note that a criminal conviction is not needed for the CIMT ground of inadmissibility to apply.  If one admits having committed the acts or the essential elements of a crime involving moral turpitude, than he or she can be found inadmissible under the immigration law.  Therefore, it’s very important for foreigners with criminal background to consult with a qualified immigration attorney before applying for U.S. admission or permanent resident status.