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The Immigration Consequences of Convictions for Driving Under the Influence

December 04, 2019
Jeffrey Cohn

Multiple convictions for driving under the influence (“DUI”) can have harsh immigration consequences, even with subsequent efforts at rehabilitation. Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019), a case decided by Attorney General William P. Barr on October 25, 2019, may make it more difficult for foreign nationals with multiple DUI convictions to obtain nonpermanent resident cancellation of removal.

When foreign nationals without lawful immigration status are placed in removal proceedings, they often seek cancellation of removal and adjustment of status available for certain nonpermanent residents under Section 240A(b)(1) of the Immigration and Nationality Act (“INA”). Section 240A(b)(1) grants the Attorney General the discretion to cancel the removal and adjust the status of an inadmissible or deportable foreign national who shows that his or her removal would result in exceptional and extremely unusual hardship to his or her family and, among other requirements, that he or she has been “a person of good moral character” for the 10 years preceding his or her application.

Good moral character is defined in Section 101(f) of the INA. The statute states as follows:

[n]o person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was … a habitual drunkard … [or] … one who at any time has been convicted of an aggravated felony …INA § 101(f)(1), (8).

However, as the provision’s “catch-all clause” explains: “The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character.” INA § 101(f). In other words, a foreign national may lack good moral character even if he or she is not within one of the eight total classes enumerated in the statute.

In Portillo-Rendon v. Holder, No. 11-1642 (7th Cir. 2011), a case decided prior to the Attorney General’s recent decision, the United States Court of Appeals for the Seventh Circuit concluded it is an exercise of administrative discretion to decide whether a person is a person of good moral character or not, reasoning that “good moral character” is a statutory requirement, a condition of eligibility for cancellation of removal, and that the INA does not define “good moral character.” Therefore, the court ruled it had no jurisdiction to review the discretionary determination of whether a person is or is not a person of good moral character.

In Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019), the immigration judge previously granted Mr. Castillo-Perez’s application for cancellation of removal, despite his multiple convictions for DUI and other criminal history. On appeal, the Board of Immigration Appeals (“BIA”) vacated the immigration judge’s decision and ordered Castillo-Perez removed to Mexico. Then-acting Attorney General Matthew G. Whitaker directed the BIA to refer the case to him for review. Thereafter, Attorney General Barr certified to himself questions about the “appropriate legal standard” for nonpermanent resident cancellation’s “good moral character” requirement, and whether individuals with DUI convictions should be able to establish good moral character or be afforded favorable discretion.

Attorney General Barr held that evidence of two or more DUI convictions during the relevant 10 year period establishes a rebuttable presumption that a person lacks good moral character under Section 101(f) of the INA, and because only persons who possessed good moral character for a 10-year period are eligible for cancellation of removal under Section 240A(b) of the INA, such evidence also presumptively establishes that the person’s application for that discretionary relief should be denied. Attorney General Barr reasoned that because the evidence of Castillo-Perez’s efforts to rehabilitate himself was insufficient to overcome this presumption, the BIA correctly vacated the immigration judge’s decision to grant cancellation of removal.

The decision emphasizes that cancellation of removal is a discretionary form of relief from removal, and that the burden is on the foreign national to prove that he or she “merits a favorable exercise of discretion.” INA § 240(c)(4)(A). Attorney General Barr explained that although a foreign national’s criminal record is highly probative of whether he or she possesses good moral character, a criminal record is not an absolute prerequisite to concluding that an alien lacks good moral character – for example, “habitual drunkard[s]” have been listed by Congress in the statute as persons who lack good moral character, even when they have no criminal convictions. INA § 101(f)(1).

Attorney General Barr elaborated that according to the INA, the Attorney General may cancel the removal of only 4,000 foreign nationals per year, which adds importance to the discretionary component of this limited yet vital form of relief from removal. He wrote that a foreign national with multiple DUI convictions likely lacks good moral character under the catch-all clause of Section 101(f) of the INA. The Attorney General reasoned that “[g]ood moral character requires adherence to the generally accepted moral conventions of the community, and criminal activity is probative of non-adherence to those conventions.”

Barr further explained that “[m]ultiple DUI convictions are a serious blemish on a person’s record and reflect disregard for the safety of others and for the law.” He suggested that “[m]ultiple DUI convictions that involve alcohol should also prompt an immigration judge to assess whether the alien is or was a ‘habitual drunkard’ categorically lacking good moral character under section 101(f)(1) of the INA…”

In sum, Attorney General Barr found that “[g]iven the reckless and dangerous nature of the crime of DUI and the limited number of aliens who may be granted cancellation of removal each year, aliens with multiple DUI convictions are likely undeserving of such discretionary relief.” Barr admitted that there “…could be an unusual case…” in which a foreign national can establish that the multiple DUI convictions were merely an aberration and can show good moral character, but to do so, the foreign national must overcome the strong evidence attributable to those multiple convictions by establishing good moral character. Barr elaborated that a foreign national may not make this showing merely by demonstrating rehabilitation after those convictions by addressing a problem with substance abuse. The Attorney General reasoned that a foreign national’s efforts to reform or rehabilitate himself or herself after multiple DUI convictions is commendable, but these efforts alone do not demonstrate good moral character during the period that includes the convictions. In short, Attorney General Barr ruled that rehabilitative efforts alone do not overcome the presumption that a foreign national with multiple DUI convictions is ineligible for cancellation of removal.

Please contact an experienced attorney at Minsky, McCormick & Hallagan, P.C. if you need assistance understanding the potential immigration consequences for DUI convictions, whether you are in removal proceedings or require legal advice regarding any other immigration matter.

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