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The Effect of DUI on Cancellation of Removal

When an individual who is physically present in a foreign country applies for an immigrant or nonimmigrant visa abroad, the grounds of inadmissibility codified in the INA apply to him or her. If the alien has been convicted of a DUI with or without an aggravated factor, he or she might be denied an immigrant visa.

In the visa renewal or revalidation context, an applicant may be denied visa renewal as a result of the DUI conviction if the conviction falls within the definition of crimes of violence or crimes of moral turpitude under state law. An individual who falls under the purview of one or more of the grounds of inadmissibility will be denied the visa, unless he or she qualifies for and receives a waiver.

The phrase “crime of moral turpitude” is not clearly defined in the Immigration and Nationality Act (the “I.N.A.”). The phrase “moral turpitude” refers to an interpretation of conduct contrary to the accepted rules, morality, and duties owed between persons or to society. The acts which involve moral turpitude are the acts accompanied by a vicious motive or corrupt mind.

Generally, to determine whether a conviction qualifies as one involving moral turpitude, the courts look at the language of the statute, and not at more subliminal factors. Intent required by the statute under which the petitioner is convicted is critical to a finding of moral turpitude. Although moral turpitude is typically found in crimes committed intentionally or knowingly, the courts have held that reckless conduct may also be sufficient, especially if an aggravating factor is present. Evidence of two or more convictions for driving under the influence during a relevant period could also establish a presumption that an alien lacks good moral character under INA.

The good moral character standard has grown rapidly throughout the INA and is now a prerequisite to eligibility for numerous forms of immigration relief, and an alien’s criminal record is considered highly probative of whether he or she possesses good moral character. At the same time, a criminal record is not an absolute prerequisite to concluding that an alien lacks good moral character. Congress has identified “habitual dunks”, for example, as people who lack good moral character even when they have no criminal convictions.

Further, if an immigrant visa applicant has a driving under the influence conviction that does not fall within the definition of crimes of moral turpitude or crimes of violence, a U.S. consulate abroad may refer the applicant to a panel physician for further review. If the applicant is determined to be an alcoholic, then he/she will receive a Class A determination from the Panel Physician. In this case, the consulate must defer to the Panel Physician’s recommendation.

The INA also grants the Attorney General discretion to cancel the removal and adjust the status of an inadmissible or deportable alien who shows that his family, and, among other things, that he has been “a person of good moral character” for the 10 years preceding his application.

In 2018, the Board of Immigration Appeals to referred the Matter of CASTILLO-PEREZ, Respondent to the Attorney General for review. In this case, the immigration judge granted the respondent’s application for cancellation of removal despite the respondent’s multiple convictions for driving under the influence (“DUI”) and other criminal histories.

In an early written opinion, the immigration judge concluded that the respondent had shown good moral character. While he claimed that he was “troubled by [the respondent’s] alcohol-related convictions,” they were outweighed by his work history, his support for his family, and especially his “rehabilitation efforts” related to previous alcohol abuse. The immigration judge further held that the respondent satisfied the other statutory requirements for cancellation of removal and warranted relief as a matter of discretion.

On appeal, the Board of Immigration Appeals vacated the immigration judge’s decision and ordered the respondent removed to Mexico. Acting Attorney General Matthew G. Whitaker subsequently directed the Board to refer this case to him for review. He invited the parties and any interested amici to brief relevant points, including the correct standard for assessing good moral character under the INA and the impact of multiple convictions for DUI on whether an alien should be granted cancellation of removal

Here, because the evidence of the respondent’s efforts to rehabilitate himself is insufficient to overcome this presumption, the Board correctly vacated the immigration judge’s decision to grant cancellation of removal. Cancellation of removal is a coveted and scarce form of relief. Under the INA, the Attorney General may cancel the removal of only 4,000 aliens per year. Often because these numbers run so high even early in the fiscal year, judges are forced to “reserve” decisions for only the most qualified applicants.

It falls on the shoulders of the individual and their representation to fight for proving what can be defined as “good moral character” under the statutes and laws set forth by the INA. It is more important now than ever to have adequate representation to protect yourself and your family.

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Photo courtesy of Unsplash

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