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Is A New Jersey Drunk Driving (DWI) A Crime Of Moral Turpitude?

On Behalf of | Oct 18, 2013 | Criminal Law & Municipal Court, Deportation |

What exactly is a Crime Involving Moral Turpitude (also commonly known by its acronym “CIMT”)? There are few terms in the English language as frustratingly enigmatic as the above rubric. It is a legal term of art that, in many ways, defies strict definition. The case law in this area, if anything, shows just how amorphous its borders can be. For a non-citizen, fewer classifications are fraught with more peril other than aggravated felonies and arguably controlled substance offenses. This is in large part because a CIMT can lead to deportation, absent a waiver (if one is legally available). A useful starting definition can be found in Matter of Short, a Board of Immigration Appeals Case: CIMT “refers generally to conduct which 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…moral turpitude has been defined as an each which is per se morally reprehensible and extrinsically wrong…”

While that might appear to be a clear definition, in actuality–it isn’t, as few of the core terms are actually defined. One rule of thumb, though, is that “moral turpitude” can be replaced with “evil intent.” According to the Department of State Foreign Affairs Manual (“FAM”), typical examples of CIMT include: Robbery, Theft, Fraud, Willful Tax Evasion, Forgery, Bigamy, Lewdness, Murder, etc.

The question, then, is if a crime has “evil intent”, as vague as that may be, under what circumstances can it trigger a person’s deportation? Under INA 212(a)(2)(A), a person is deportable if he or she is convicted of a crime (for which a possible penalty of one year or longer may be imposed) that involves moral turpitude committed within 5 years of the date of admission into the United States (this is changed to 10 years in the case of S visas).

Additionally, an LPR is also deportable if, at any time after admission, he or she is convicted of two or more crimes involving moral turpitude not arising out of a single scheme or criminal misconduct, regardless of whether the convictions were in a single trial.

In New Jersey, one of the most often asked questions that we run across from both attorneys as well as clients is whether a charge of Driving While Intoxicated (39:4-50) is a CIMT. In immigration, there are no black and white answers. However, it is largely accepted that a DWI or DUI, by itself, without any aggravating factors, is not a CIMT. The Board of Immigration Appeals has ruled on this issue. On the other hand, this does not necessarily mean that a DWI can never be a CIMT. Under certain circumstances, it potentially can. For example, when a DWI/DUI is committed by a person driving while knowing that he is absolutely prohibited from driving (ie., suspended), such circumstances may give rise to a finding of moral turpitude. See Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999). The difference here is that in the latter situation, there is an apparent knowing disregard for the law and public safety that the court has deemed morally reprehensible and hence, smacks of turpitude.

Speaking of DWIs, these offenses nevertheless have immigration consequences, even if they are not deportable in and of themselves. In New Jersey, for example, whenever a person is arrested for a DWI, it is the policy of the Attorney General’s Office, as set out in AG Directive 2007-3, to notify ICE if there is reason to believe that the person may not be lawfully here in the US. If the individual is out of status or undocumented, ICE will usually issue a detainer on that individual and place that person into removal proceedings. The person may not be deportable because of the DWI, but he/she may deportable for being out of status. In other words, the DWI will trigger the removal process which may ultimately result in the person’s deportation, regardless of whether the DWI is a deportable offense.