In yet another ominous sign of the erosion of judicial independence, Acting Attorney General Matthew Whitaker recently certified a case to himself that may have a significant impact on foreign nationals charged with Drunk Driving or Driving Under The Influence. The case is Matter of Castillo-Perez, and this case is particularly important given the issues that the Attorney General will be deciding-possibly overruling previous BIA precedent. According to the certification, the Attorney General is directing the parties to address the following questions:
1. In connection with an application for cancellation of removal under 8 USC 1229b(b), what is the appropriate legal standard for determining when an individual lacks “good moral character” under 8 USC 1101(f)?
2. What impact should multiple convictions for driving while intoxicated or driving under the influence have in determining when an individual lacks “good moral character” under 8 USC 1101(f)?
3. What impact should multiple such convictions have in determining whether to grant discretionary relief under 8 USC 1229b(b)?
In the last couple of years, drunk driving charges have drawn heightened attention from ICE and triggered a plethora of adverse consequences well beyond arrest and apprehension by immigration enforcement. Earlier this year, the BIA overruled an immigration judge in Matter of Siniauskas, 27 I&N Dec. 207 (BIA 2018), and denied bond to an individual with multiple DUI convictions, despite compelling equities and notwithstanding a gap of ten years since his last conviction and most recent arrest. We have also seen, in practice, N-400 naturalization applications denied on the basis of good moral character when the applicant presents one or more convictions during the statutory period. Even arrests without convictions during the statutory period may raise an inference that the applicant is a “habitual drunkard,” a finding that automatically bars a finding of good moral character. Furthermore, it is well settled that a DWI conviction is a standard basis of ineligibility for Deferred Action for Childhood Arrivals or DACA. There have also been anecdotal reports of some provisional waivers (I-601A applications) being denied for DWI convictions. Additionally, foreign nationals here on visitor visas have also seen their visas automatically revoked under “prudential revocation” by US consulates on the basis of a DWI charge.
Given the recent trend of AG decisions this year, it seems likely that multiple DWI convictions will preclude a finding of good moral character for both citizenship as well as cancellation of removal applications. If so, such a holding will render what is essentially a serious traffic violation in most states tantamount to a felony. Proceeding along this slippery slope, one can only imagine what is next. Will multiple drunk driving convictions one day be held to be deportable? Will a single DWI offense be construed as a Crime Involving Moral Turpitude?
In light of the stakes, it is incumbent on and imperative for any foreign national charged with a DWI offense to not only retain a skilled criminal defense attorney, but a knowledgeable immigration lawyer versed in crimmigration law.
The above is general information only and not to be relied upon as legal advice. It does not create an attorney-client relationship, nor should it be relied upon in lieu of consultation with an attorney.