impact of DUI/DWI on Employment based Citizenship

vsaksena

Registered Users (C)
I got my greencard in May 2006, I know I can apply for a citizenship after 4 yrs & 9 months.

In the meantime I have had 2 DUI (one in Jan 2007 & another in Jan 2008). I was looking for feedback from the forum members on the implication of the DUI on the citizenship application and approval.

Any feedback/advice appreciated
 

Wavejazz1

Registered Users (C)
DUI does not have anything to do with the bases of your application it is still a DUI charge no matter what.
And you had two of them, chances to be granted citizenship are 50%. based on what i read on USCIS site if i were you i would wait five years so you won't be denie for lack of good moral character.

For immigration DUI is called a Crime involving Moral Turpitude and in most cases can get you disqualified for citizenship. Some lawyers can bit this during the appeal process.

Wave
 
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Wavejazz1

Registered Users (C)
INTERIM DECISION #3423


In re Jose Luis LOPEZ-MEZA, Respondent

File A92 026 109 - Florence

Decided December 21, 1999


U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals



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.




Jose A. Bracamonte, Esquire, Phoenix, Arizona, for respondent


Amy C. Martin, Assistant District Counsel, for the Immigration and Naturalization Service



Before: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; SCIALABBA, Vice Chairman; VACCA, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, MATHON, GUENDELSBERGER, JONES, GRANT, MOSCATO, and MILLER, Board Members. Concurring and Dissenting Opinion: ROSENBERG, Board Member.



HOLMES, Board Member:


In a decision dated November 16, 1998, an Immigration Judge found that the Immigration and Naturalization Service had not met its burden of demonstrating that the respondent was removable as charged under section 237(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(ii) (Supp. II 1996), and ordered the removal proceedings terminated. The Service has appealed from that decision. The appeal will be sustained and the record will be remanded to the Immigration Judge for further proceedings.








I. PROCEDURAL AND FACTUAL BACKGROUND


The respondent is a native and citizen of Mexico who adjusted his status to that of a lawful permanent resident on September 20, 1989, under section 245A of the Act, 8 U.S.C. § 1255a (1988). On June 19, 1998, the respondent was convicted in Arizona of aggravated driving or being in actual physical control of a vehicle while under the influence of intoxicating liquor or drugs (“DUI”), in violation of sections 28-692(A)(1) and 28-697(A)(1) of the Arizona Revised Statutes, for an offense that occurred on January 29, 1997. The respondent was also convicted on June 19, 1998, of aggravated DUI, in violation of sections 28-1381(A)(1) and 28-1383(A)(1) of the Ari zona Revised Statutes, for a separate offense that occurred on March 1, 1998. 1 The respondent received a sentence of 4 months’ incarceration for each offense, to be served concurrently, followed by 5 years’ probation. 2


The Immigration Judge found that the respondent’s aggravated DUI convictions were not for crimes involving moral turpitude. Without specifically addressing the fact that each conviction was for aggravated DUI, the Immigration Judge determined that the Service had not established that “driving under the influence of intoxicating liquor is, in fact, a crime involving base or vile conduct or moral turpitude as classically defined.” Consequently, the Immigration Judge concluded that the charge of removability could not be sustained, and he terminated the removal proceedings. The Service appeals from that decision, arguing that a conviction for aggravated DUI is a conviction for a crime involving moral turpitude.





II. ISSUE PRESENTED ON APPEAL


The issue raised in this case is whether the respondent’s two convictions for aggravated DUI, in violation of sections 28-697(A)(1) and 28-1383(A)(1) of the Arizona Revised Statutes, are convictions for crimes involving moral turpitude within the scope of section 237(a)(2)(A)(ii) of the Act.



III. RELEVANT PROVISIONS OF ARIZONA LAW


The respondent’s first aggravated DUI conviction was in violation of sections 28-692(A)(1) and 28-697(A)(1) of the Arizona Revised Statutes. At the time he committed the offense, section 28-692(A)(1) provided as follows:


It is unlawful for any person to drive or be in actual physical control of any vehicle within this state under any of the following circumstances:


1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree.


Ariz. Rev. Stat. Ann. § 28-692(A)(1) (1997). Section 28-697(A) provided as follows:


A person is guilty of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs if the person does either of the following:


1. Commits a violation of § 28-692 [driving under the influence] or this section while the person’s driver’s license or privilege to drive is suspended, cancelled, revoked or refused, or the person’s driver’s license or privilege to drive is restricted as a result of violating § 28-692 or under § 28-694 [administrative license suspension for driving under the influence].

2. Commits a third or subsequent violation of § 28-692 or this section or is convicted of a violation of § 28-692 or this section and has previously been convicted of any combination of convictions of § 28-692 or this section or acts in another state, a court of the United States or a tribal court which if committed in this state would be a violation of § 28-692 or this section within a period of sixty months. For the purposes of this paragraph, an order of a juvenile court adjudicating the person delinq uent is equivalent to a conviction.

3. Commits a violation of § 28-692 while a person under fifteen years of age is in the vehicle.


Ariz. Rev. Stat. Ann. § 28-697(A)(1)-(3) (1997).


The respondent’s second conviction for aggravated DUI was in violation of sections 28-1381(A)(1) and 28-1383(A)(1) of the Arizona Revised Statutes. Section 28-1381(A)(1) provides as follows:

It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:

1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree.


Ariz. Rev. Stat. Ann. § 28-1381(A)(1) (1998). Section 28-1383(A) provides as follows:


A person is guilty of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs if the person does either of the following:

1. Commits a violation of § 28-1381 [driving under the influence] or this section while the person’s driver license or privilege to drive is suspended, canceled, revoked or refused or while a restriction is placed on the person’s driver license or privilege to drive as a result of violating § 28-1381 or under § 28-1385 [administrative license suspension for driving under the influence].

2. Within a period of sixty months commits a third or subsequent violation of § 28-1381 or this section or is convicted of a violation of § 28-1381 or this section and has previously been convicted of any combination of convictions of § 28-1381 or this section or acts in another state, a court of the United States or a tribal court that if committed in this state would be a violation of § 28-1381 or this section. For the purposes of this paragraph and § 28-1382, an order of a juvenile court adjudicatin g the person delinquent is equivalent to a conviction.

3. Commits a violation of § 28-1381 while a person under fifteen years of age is in the vehicle.


Ariz. Rev. Stat. Ann. § 28-1383(A)(1)-(3) (1998).



IV. ANALYSIS


The issue presented in this case involves the meaning and scope of the phrase “crime involving moral turpitude” in section 237(a)(2)(A)(ii) of the Act. “Moral turpitude” is a term that has deep roots in the law. 3 Matter of Khourn , 21 I&N Dec. 1041 (BIA 1997). While this term has been the subject of interpretation for many years, its precise meaning and scope have never been fully settled. Nearly 50 years ago, the phrase “crime involving moral turpitude” was challenged as being unconstitutionally vague, but a divided Supreme Court found that its meaning was sufficiently definite to withstand constitutional scrutiny, in part because, even at that time, the phrase had been part of the immigration laws for more than 60 years. Jordan v. De George , 341 U.S. 223, 229-32 (1951). The Court noted that “difficulty in determining whether certain marginal offenses are within the meaning of the language under attack as vague does not automatically render a statute unconstitutional for indefiniteness.” Id. at 231. 4 Subsequent to the Supreme Court’s decision in Jordan , both the courts and this Board have referred to moral turpitude as a “nebulous concept” with ample room for differing definitions of the term. Franklin v. INS , 72 F.3d 571, 573 (8th Cir. 1995), aff’g Matter of Franklin , 20 I&N Dec. 867 (BIA 1994); see also Matter of Perez-Contreras , 20 I&N Dec. 615, 617-20 (BIA 1992), and cases cited therein.

It is clear, however, that the meaning of this phrase is a matter of federal law and that any analysis of whether a crime involves moral turpitude necessarily will entail agency and judicial construction. 5 We have held that moral turpitude refers generally to conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Matter of L-V-C- , Interim Decision 3382 (BIA 1999); Matter of Danesh , 19 I&N Dec. 669 (BIA 1988); see also Rodriguez-Herrera v. INS , 52 F.3d 238 (9th Cir. 1995); Grageda v. INS , 12 F.3d 919, 921 (9th Cir. 1993) (noting that courts have described moral turpitude in general terms as “an ‘act of baseness or depravity contrary to accepted moral standards’” (quoting Guerrero de Nodahl v. INS , 407 F.2d 1405, 1406 (9th Cir. 1969)), and as “‘basically offensive to American ethics and accepted moral standards’” (quoting Castle v. INS , 541 F.2d 1064, 1066 (4th Cir. 1976))). Under this standard, the nature of a crime is measured against contemporary moral standards and may be susceptible to change based on the prevailing views in society. See generally United States v. Francioso , 164 F.2d 163 (2d Cir. 1947); Ng Sui Wing v. United States , 46 F.2d 755 (7th Cir. 1931); Matter of G- , 1 I&N Dec. 59, 60 (BIA 1941) (stating that the standard by which an offense is to be judged is “that prevailing in the United States as a whole, regarding the common view of our people concerning its moral character”).


Furthermore, while crimes involving moral turpitude often involve an evil intent, such a specific intent is not a prerequisite to finding that a crime involves moral turpitude. See Rodriguez-Herrera v. INS , supra , at 240 (noting that the United States Court of Appeals for the Ninth Circuit has “held only that without an evil intent, a statute does not necessarily involve moral turpitude”); Gonzalez-Alvarado v. INS , 39 F.3d 245, 246 (9th Cir. 1994) (noting that “[a] crime involving the willful commission of a base or depraved act is a crime involving moral turpitude, whether or not the statute requires proof of evil intent”); Grageda v. INS , supra , at 922 (holding that the “combination of the base or depraved act and the wilfulness of the action . . . makes the crime one of moral turpitude”); Guerrero de Nodahl v. INS , supra , at 1406; Matter of Franklin , supra , at 868 (“Among the tests to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind.”); Matter of Danesh , supra ; Matter of Wojtkow , 18 I&N Dec. 111 (BIA 1981); Matter of Medina , 15 I&N Dec. 611, 614 (BIA 1976) (stating that the “presence or absence of a corrupt or vicious mind is not controlling” and that criminally reckless behavior may be a basis for a finding of moral turpitude), aff’d sub nom. Medina-Luna v. INS , 547 F.2d 1171 (7th Cir. 1977). But see Matter of Khourn , supra , at 1046 (“The Board has held that ‘evil intent’ is a requisite element for a crime involving moral turpitude.”); Matter of Flores , 17 I&N Dec. 225, 227 (BIA 1980) (holding that an “evil or malicious intent is said to be the essence of moral turpitude”); Matter of Abreu-Semino , 12 I&N Dec. 775, 777 (BIA 1968) (finding that “crimes in which evil intent is not an element, no matter how serious the act or harmful the consequences, do not involve moral turpitude”).


Certain crimes have been readily categorized as involving moral turpitude. For example, the Supreme Court has noted that “fraud has consistently been regarded as such a contaminating component in any crime that American courts have, without exception, included such crimes within the scope of moral turpitude.” Jordan v. De George , supra , at 229. Other crimes involving acts of baseness or depravity have been found to be crimes involving moral turpitude even though they have no element of fraud and, in some cases, no explicit element of evil intent (e.g., murder, rape, robbery, kidnaping, voluntary manslaughter, some involuntary manslaughter offenses, aggravated assaults, mayhem, theft offenses, spousal abuse, child abuse, and incest). See 6 Charles Gordon, et al., Immigration Law and Procedure § 71.05[1][d] (rev. ed. 1999), and cases cited therein. Statutory rape has been found to involve moral turpitude even though it has no intent element. See Marciano v. INS , 450 F.2d 1022 (8th Cir. 1971), cert. denied , 405 U.S. 997 (1972); Castle v. INS , supra , at 1066 (stating that the “inherent nature” of the offense “is so basically offensive to American ethics and accepted moral standards as to constitute moral turpitude per se”); Matter of Dingena , 11 I&N Dec. 723 (BIA 1966). While it is generally the case that a crime that is “malum in se” involves moral turpitude and that a “malum prohibitum” offense does not, this categorization is more a general rule than an absolute standard. See Kempe v. United States , 151 F.2d 680, 688 (8th Cir. 1945).


In determining whether a crime involves moral turpitude, the specific statute under which the conviction occurred is controlling. See Matter of Khourn , supra , at 1044; Matter of Franklin , supra , at 868-69. If the statute defines a crime in which turpitude necessarily inheres, then, for immigration purposes, the offense is a crime involving moral turpitude. Matter of Short , 20 I&N Dec. 136, 137 (BIA 1989). Thus, whether a particular crime involves moral turpitude “is determined by the statutory definition or by the nature of the crime not by the specific conduct that resulted in the conviction.” McNaughton v. INS , 612 F.2d 457, 459 (9th Cir. 1980). The crime must be one that necessarily involves moral turpitude without consideration of the circumstances under which the crime was, in fact, committed. See Goldeshtein v. INS , 8 F.3d 645, 647 (9th Cir. 1993).



V. CONVICTIONS UNDER SECTIONS 28-697(A)(1) AND 28-1383(A)(1)


In the present case, we examine whether the respondent’s convictions under sections 28-697(A)(1) and 28-1383(A)(1) of the Arizona Revised Statutes are for crimes involving moral turpitude. Upon review of the above statutes, we cannot agree with the Immigration Judge’s determination that this respondent’s aggravated DUI offenses are not crimes involving moral turpitude.


We note that the only specific finding of the Immigration Judge was that “driving under the influence of intoxicating liquor” had not been shown to be a crime involving moral turpitude. We do not disagree with the Immigration Judge in this regard. Simple DUI is ordinarily a regulatory offense that involves no culpable mental state requirement, such as intent or knowledge. See Matter of Abreu-Semino , supra . In State v. Thompson , 674 P.2d 895 (Ariz. Ct. App. 1983), simple DUI under section 28-692 of the Arizona Revised Statutes was found not to be a malum in se offense because it did not require a culpable mental state. We are aware of no case law specifically addressing the question whether simple DUI is a crime involving moral turpitude in the immigration context. The absence of such law suggests a long historical acceptance that a simple DUI offense does not inherently involve moral turpitude, and we are not persuaded to conc lude otherwise. 6 We find that the offense of driving under the influence under Arizona law does not, without more , reflect conduct that is necessarily morally reprehensible or that indicates such a level of depravity or baseness that it involves moral turpitude.

The instant case, however, involves convictions for aggravated DUI under sections 28-697(A)(1) and 28-1383(A)(1) of the Arizona Revised Statutes. Convictions under these statutory provisions may involve two separate forms of aggravating misconduct. A person may be found guilty of aggravated DUI by committing a DUI offense while knowingly driving on a suspended, canceled, or revoked license or by committing a DUI offense while already on a restricted license owing to a prior DUI. We find that the serious misconduct described in either of these statutes involves a baseness so contrary to accepted moral standards that it rises to the level of a crime involving moral turpitude. A contrary conclusion is not mandated by the absence of a specific element of intent in the statutes because the aggravated circumstances necessary for a conviction under either section establish a culpable mental state ad equate to support a finding of moral turpitude.


A conviction for aggravated DUI under section 28-697(A)(1) or section 28-1383(A)(1) requires a showing that the offender was “knowingly” driving with a suspended, canceled, revoked, or refused license. See State v. Cramer , 962 P.2d 224 (Ariz. Ct. App. 1998); State v. Superior Court , 945 P.2d 1334 (Ariz. Ct. App. 1997); State v. Agee , 887 P.2d 588 (Ariz. Ct. App. 1994). Thus, in order for a motorist to be convicted of aggravated DUI in Arizona, the state must prove that the defendant knew or should have known that his license was suspended. 7 State v. Williams , 698 P.2d 732, 734 (Ariz. 1985) (holding that driving without a license necessarily involves a culpable mental state); see also Wright v. State , 656 P.2d 1226 (Alaska 1983) (indicating that those who drink knowing that they have committed crimes while drunk in the past, as well as those who drink knowing that they will be driving, commit a malum in se act by their drinking); State ex rel. Sullivan v. Price , 63 P.2d 653, 655 (Ariz. 1937) (recognizing that revocation of driving privileges eliminates drivers shown to be dangerous); State v. Jansing , 918 P.2d 1081 (Ariz. Ct. App. 1996) (finding that a motorist with a suspended license who drove while intoxicated accepted the risk of possible harm to others); People v. Weathington , 282 Cal. Rptr. 170 (Cal. Ct. App. 1991) (regarding notice to a motorist when he has been convicted of a prior DUI offense); Matter of Magallanes , Interim Decision 3341 (BIA 1998) (discussing the inherently reckless act of drunk driving and the unjustifiable risk of harm of drunk driving).

Consequently, aside from the culpability that is often, but not inherently, present in a simple DUI offense, an individual who drives under the influence in violation of the relevant provisions of section 28-697(A)(1) or section 28-1383(A)(1) does so with the knowledge that he or she should not be driving under any circumstances. We find that a person who drives while under the influence, knowing that he or she is absolutely prohibited from driving, commits a crime so base and so contrary to the currently accepted duties that persons owe to one another and to society in general that it involves moral turpitude.


Citing Matter of Short , supra , the concurring and dissenting opinion argues that to consider the individual elements of these offenses together is a matter of “bootstrapping” into a finding of moral turpitude through some “undefined synergism.” Matter of Lopez-Meza , Interim Decision 3423, at 19 (Rosenberg, concurring and dissenting). The relevant discussion in Matter of Short , however, pertained to a simple assault with intent to commit a felony of unproven seriousness. We did not hold in that decision that a combination of acts that are included as elements of a specific offense could never, when added together, build to such a heightened deviance from accepted moral standards as to reach a level of conduct deemed morally turpitudinous. In fact, additional aggravating elements can often transform an offense that otherwise would not be a crime involving moral turpitude into on e that is.


The finding of moral turpitude in the crimes in the present case does not arise simply from an amalgamation of distinct separate offenses; rather, it results from a building together of elements by which the criminalized conduct deviates further and further from the private and social duties that persons owe to one another and to society in general. There is inherent difficulty in determining whether marginal offenses are crimes involving moral turpitude. See Jordan v. De George , supra , at 231. In our view, a simple DUI offense is such a marginal crime. However, when that crime is committed by an individual who knows that he or she is prohibited from driving, the offense becomes such a deviance from the accepted rules of contemporary morality that it amounts to a crime involving moral turpitude.


Thus, we find that the Immigration Judge erred in terminating removal proceedings based on his determination that the respondent’s two aggravated DUI convictions were not for crimes involving moral turpitude.



VI. CONCLUSION


We conclude that the respondent’s convictions for aggravated DUI, in violation of sections 28-1383(A)(1) and 28-697(A)(1) of the Arizona Revised Statutes, constitute convictions for a crime involving moral turpitude. Therefore, we find that the respondent has been convicted of two crimes involving moral turpitude, which did not arise from a single scheme, and that he is removable as charged. Accordingly, we will sustain the appeal and vacate the decision of the Immigration Judge. The record will be reman ded to the Immigration Judge to provide the respondent an opportunity to apply for any relief from removal for which he may be eligible.


ORDER: The appeal of the Immigration and Naturalization Service is sustained and the decision of the Immigration Judge is vacated.

FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion.




Board Member Michael J. Heilman did not participate in the decision in this case.



CONCURRING AND DISSENTING OPINION : Lory Diana Rosenberg, Board Member


I respectfully concur in part and dissent in part.


Boiled down to its essentials, the case before us presents a rather confounding legal question. That question is: whether a conviction for an aggravated driving offense made up of two distinct regulatory violations—driving under the influence, and driving while a restriction is placed on a driver’s license—neither of which independently involves moral turpitude, can be deemed to constitute a conviction for a crime involving moral turpitude.


The majority recognizes that Arizona state law does not require a culpable mental state to convict for driving under the influence. The majority also concedes that “a long historical acceptance that a simple DUI offense does not inherently involve moral turpitude” warrants the conclusion that driving under the influence does not reflect conduct that is morally reprehensible or indicate a level of depravity that would support classifying it as a crime involving moral turpitude. Matter of Lopez-Meza , Interim Decision 3423, at 9 (BIA 1999). While I agree with the majority that a simple DUI offense is not a crime involving moral turpitude, I disagree with the conclusion that an aggravated DUI offense is a crime involving moral turpitude.


I find the majority’s conclusion that the respondent’s two convictions for aggravated driving under Arizona state law amount to convictions for crimes involving moral turpitude (because each offense requires both driving under the influence and a prior restriction on the driver’s license or privilege to drive) to be premised on little more than some “undefined synergism” that we previously have rejected as inadequate to constitute a crime involving moral turpitude. Matter of Short , 20 I&N Dec. 136, 139 (BIA 1989) (ruling that if neither the offense of aiding and abetting nor the offense of assault with intent to commit a felony upon the person of a minor independently involves moral turpitude, then the two crimes combined do not involve moral turpitude). A state’s designation of an offense as “aggravated” is not determinative of its character, and it does not convert criminal conduct that is devoid of moral turpitude into a crime that involves moral turpitude.


Consequently, I concur in part and dissent in part.
 

madh4

Registered Users (C)
What is the disposition of the cases. You should apply for citizenship after 5 years from the date of sentence and not date of offense. Meanwhile don't Drink and Drive.
 

Bobsmyth

Volunteer Moderator
I got my greencard in May 2006, I know I can apply for a citizenship after 4 yrs & 9 months.

In the meantime I have had 2 DUI (one in Jan 2007 & another in Jan 2008). I was looking for feedback from the forum members on the implication of the DUI on the citizenship application and approval.

Any feedback/advice appreciated

It all depends on the exact charge, BAC, and state the offenses took place. Consult an experienced immigration lawyer specialized in DUI law in order to determine your best course of action.
 
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