On October 25, 2019, Attorney General William Barr issued a very significant decision regarding eligibility for cancellation of removal, one of the most coveted forms of immigration relief for those charged with being in the country illegally. (Under cancellation of removal, individuals granted relief in immigration court not only get their court cases canceled but also receive green cards.) In order to qualify for cancellation, an individual must establish, among other things, that he/she possesses good moral character for the ten-year period preceding the application. Under this case, which Acting Attorney General Matthew Whitaker had previously certified to himself for review (prior to being succeeded by AG Barr), evidence of two or more DWI convictions during the ten-year period now creates a presumption that the individual does not possess good moral character. According to the Attorney General, “multiple DUI convictions represent a repeated failure to meet the community’s high moral standards” and “criminal activity is probative of non-adherence” to generally accepted community conventions.
What this means is that if you have two DUI/DWI convictions in the past ten years prior to your cancellation application, you will likely be denied for lacking good moral character-even if you have been in the US for the requisite ten years and can demonstrate exceptional and extremely unusual hardship to a US citizen/lawful permanent resident spouse, parent, or child. From a legal perspective, this case is extremely troubling and follows a recent line of cases essentially stripping judges of their discretion. In these types of cases, judges will be realistically foreclosed from considering the context and other relevant circumstances in determining whether an applicant with multiple DWIs has good moral character. While the presumption is technically rebuttable, applicants are practically saddled with a nearly insurmountable burden. As the decision notes: “absent substantial relevant and credible contrary evidence, multiple DUI convictions require that the immigration judge deny cancellation of removal.” Moreover, evidence of reformation or rehabilitation after the convictions does not demonstrate in and of itself good moral character. Unfortunately, given this logic, it is hard to conceive what will be probative then in overcoming the presumption. Instead of letting judges decide how drunk driving convictions reflect upon a person’s character, the convictions are virtually non-starters in terms of cancellation requests.
Another disturbing aspect is the opinion’s facile observation that all 50 states have criminalized drunk driving. This is erroneous. New Jersey, in particular, treats drunk driving very harshly with extremely severe penalties, including potential incarceration. Nevertheless, DWI does not represent a criminal offense nor is it punished under the New Jersey Criminal Code 2C. As a consequence, New Jersey residents (and residents of other states which do not criminalize drunk driving) stand to be treated and perceived as felons before the immigration court for offenses which are not even crimes.
But perhaps the most troubling part of this case are the ramifications of an inconspicuous footnote placed literally at the very end of the opinion. In the footnote, the Attorney General notes that adjustment of status is another type of discretionary application, which-though not the subject of the decision-ought to include consideration of whether applicants with multiple DUIs merit a favorable exercise of discretion. In legal terms, this is what is called “dictum,” incidental comments not essential to the decision or to be accorded the same precedential deference as language in the main body. However, these casual remarks may open the door for adjudicators to begin denying adjustment of status applications involving applicants with multiple drunk driving convictions, even though it is well settled that a drunk driving conviction-even multiple ones– is generally not considered an inadmissible or deportable offense. What’s more, this may represent the incipient stirrings of an effort to expand the contours of inadmissible and deportable conduct beyond what is statutorily prescribed. Adjustment of status applicants may soon need to be wary not only of financial issues (raised by the new public charge guidelines) but also of any infractions and minor offenses that are not even criminal in nature.