DRIVING under the influence (DUI) of alcohol or narcotics is a serious threat to public safety. The Center for Disease Control and Prevention reported that over 1.4 million drivers were arrested for DUI in the US in 2010. In the same year, there were 10,228 fatalities in alcohol-impaired driving crashes. Thus, law enforcement officials are aggressively arresting alcohol-impaired drivers. If the arrested driver is an alien, state or local law enforcement officers often contact Immigration and Customs Enforcement (ICE) for possible initiation of removal proceedings. If you’re convicted of DUI, this could adversely affect your green card or your naturalization application.
If you’re applying for a green card, your application could be denied if you’re found inadmissible based on your DUI conviction. Inadmissibility means that an alien is ineligible to receive a visa or he cannot be admitted into the US based on certain conduct or convictions. If you’re already a green card holder, you could lose your green card if you’re found deportable based on your DUI conviction. Deportability means that an alien who was previously admitted could be removed based on his conduct or convictions.
A DUI conviction is not a specific category for inadmissibility. Unlike controlled substance violations for example, a DUI would make an alien inadmissible only if it falls under crimes involving moral turpitude (CIMT) or under health related grounds for inadmissibility.
A CIMT is one involving (1) fraud or (2) conduct that (a) is vile, base, or depraved and (b) violates accepted moral standards. In Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999), the Board of Immigration Appeals (BIA) observed that, historically, a simple DUI offense is not considered a CIMT because the conduct involved need not be deliberate and is often accidental or negligent.
However, Lopez-Meza also held that a conviction for aggravated DUI under Arizona Revised Statute (ARS) 28-1383(A)(1) was a CIMT because such DUI is committed while the person’s driver license or privilege to drive is suspended, canceled or revoked. The BIA found that a person who drives while under the influence and knows that he is absolutely prohibited from driving commits a crime that is contrary to accepted moral standards. Thus, the element that transforms a DUI into a CIMT is the offender’s knowledge that he does not have the privilege to drive. This deliberate and knowing disregard for the law brings the offender’s conduct outside the confines of accepted moral standards.
In Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001), the BIA examined the recidivist DUI statute under ARS 28-1383(A)(2), which penalized a third DUI committed within a certain period. The BIA held that an aggregation of simple DUI convictions is not a CIMT because simple DUIs individually do not constitute CIMTs and so multiple convictions for the same DUI offense would not transform a non-CIMT offense into a CIMT. The government argued that an offender’s prior DUI conviction puts him on notice that DUI is prohibited and committing subsequent DUIs acquires the element of deliberate and knowing disregard for the law which would make the subsequent offense a CIMT. The BIA was not persuaded by this argument.
The second way a DUI conviction could become a basis for inadmissibility is through the health related grounds for inadmissibility. Under INA 212(a)(1)(A)(iii) an alien is inadmissible if he is found to have a physical or mental disorder which could lead to harmful behavior. In a Policy Memorandum, dated January 16, 2004, USCIS instructed its adjudicators to require an applicant for immigration benefit to undergo a mental status re-examination by a civil surgeon if the applicant’s criminal record reveals a significant history of alcohol related driving arrests. If the civil surgeon finds a mental or physical disorder with associated harmful behavior, the alien will be inadmissible.
In naturalization applications, an applicant is required to have good moral character. Under INA 101(f), a habitual drunkard does not have good moral character. A conviction for DUI on more than one occasion might not constitute a CIMT but these could be interpreted as manifestations of habitual drinking. Thus, a naturalization application could be denied if the applicant has more than one DUI conviction.
Current immigration laws treat a simple DUI as a marginal offense although this could change if the Senate immigration reform bill, S. 744, is enacted into law. S. 744 makes convictions for 3 or more DUI related offenses into a new ground for inadmissibility. Despite the well-known dangers of DUI, you might be wondering why it is not dealt with more harshly under immigration laws. This might be because a DUI offense merely punishes the act of driving while intoxicated in some degree. If death, personal injury or property damage results, that would be an entirely different and more serious offense which would have more serious immigration consequences. Thus, under the current legal environment, a DUI might not necessarily make you inadmissible but it would certainly trigger the initiation of removal proceedings where you could be removed on other applicable grounds.
