Effect of DUIs on Ability to Establish Good Moral Character and Eligibility for Relief (Matter of Castillo-Perez - A.G.)

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Introduction: Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019)

On October 25, 2019, U.S. Attorney General William P. Barr published a precedential decision in the Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019) [PDF version]. The issue concerned the effect of multiple convictions for driving under the influence on an alien's ability to establish good moral character during the relevant statutory period. The Attorney General held that “[e]vidence of two or more convictions for driving under the influence during the relevant period establishes a presumption that the alien lacks good moral character…” In the instant case, the Attorney General held that where an alien seeks to apply for non-permanent resident cancellation of removal, which requires that he or she establish good moral character for a ten-year period, is presumptively ineligible when there is evidence in the record that the alien has multiple convictions for driving under the influence during that period.

Good moral character is considered in the context of multiple immigration provisions, most prominently naturalization and cancellation of removal. For this reason, the Attorney General's decision will be significant going forward. We review the guidance of the United States Citizenship and Immigration Services (USCIS) implementing the Attorney General's decision [see article].

Factual and Procedural History: 27 I&N Dec. 664, 664, 668

The respondent, a native and national of Mexico, lived in the United States since 1997 without having been admitted or paroled. He was married and had three U.S. citizen children. The respondent was arrested on several occasions. In 2001 and 2006, the respondent was arrested for assault and battery of his wife. In 2004, the respondent was charged with public drunkenness and in 2005 he was convicted of negligent driving. On two separate occasions — the first in 2010 and the second in 2012 — the respondent was convicted of driving under the influence in violation of Virginia law. See Va. Code. Ann. 18.2-266. The respondent would later admit in his immigration proceedings (see below) that excessive consumption of alcohol was a factor in all of his arrests. After the second conviction for DUI, the respondent stopped drinking and completed an alcohol-safety program. The respondent continued attending Alcoholics Anonymous meetings even after completing the alcohol-safety program.

The Department of Homeland Security (DHS) initiated removal proceedings against the respondent in 2010 on the basis that he was present in the United States without having been admitted or paroled. The respondent conceded that he was removable as charged and sought relief in the form of cancellation of removal. See INA 240A(b)(1). One of the requirements for being granted cancellation of removal for non-permanent residents is that the respondent must establish that he was of good moral character for the preceding 10-year period.

In 2016, the immigration judge granted the respondent's application for cancellation of removal. While the immigration judge described the respondent's alcohol-related convictions as “troubling,” the immigration judge noted that the respondent was not subject to a statutory conditional bar to establishing good moral character. Thus, the immigration judge weighed the positive and negative factors, and ultimately concluded that the positive equities weighed in favor of ruling that the respondent had established his good moral character. To this effect, the immigration judge focused on the respondent's “rehabilitation efforts,” and granted relief in the exercise of discretion.

The DHS appealed from the immigration judge's decision granting cancellation of removal to the Board of Immigration Appeals (BIA). The BIA sustained the DHS's appeal on multiple grounds. First, it held that the respondent had failed to satisfy the statutory prerequisite of establishing that his removal would result in “exceptional or extremely unusual hardship” to a qualifying relative for cancellation. The Board also reached the issue before the Attorney General in the instant decision, holding that even if the respondent had established the requisite hardship, he had not demonstrated that he had been of good moral character for the statutory period. The Board thus vacated the immigration judge's decision and ordered the respondent removed to Mexico.

After the Board entered its order, the then-acting Attorney General Matthew Whitaker directed the Board to refer the case to him for review, staying the removal order. We discussed the referral in a separate article [see article]. The instant decision by Attorney General Barr is the result of that review.

Statutory Background: 27 I&N Dec. 664, 665-67

A non-permanent resident in removal proceedings must satisfy several statutory criteria in order to establish eligibility for cancellation of removal under INA 240A(b)(1). Pertinent to the instant case, the alien must establish that he or she was “a person of good moral character” for the ten years preceding his or her application for cancellation of removal. See INA 240A(b)(1)(B). Even when an alien establishes statutory eligibility for cancellation, the alien must also establish that he or she merits the favorable exercise of discretion. See INA 240A(b)(1).

The concept of “good moral character” is articulated at section 101(f) of the INA. The provision contains both “conditional” and “permanent” bars to establishing good moral character. Conditional bars adhere in cases where they occurred during the relevant statutory period — which in the non-LPR cancellation context is the ten years preceding the application. One of the conditional bars which the Attorney General addressed briefly in a footnote to his decision is that of being “a habitual drunkard” under INA 101(f)(1). There are also several permanent bars which preclude the alien from establishing good moral character regardless of whether they occurred with the relevant statutory period. One common example, found at INA 101(f)(8), is conviction for an aggravated felony under INA 101(a)(43).

In the case of an alien neither subject to a conditional nor permanent bar to the establishment of good moral character, the determination of whether the alien establishes good moral character is fact-specific and ultimately discretionary. The Attorney General explained in his decision that “[t]he concept of good moral character has been part of the United States' immigration laws since the earliest days of the Republic.” Despite its lineage being traceable to the Act of March 26, 1790, the INA does not specifically define what “good moral character” is. The Attorney General noted, rather, that the INA provides examples of what it is not (see above). Regarding the judicial precedent, the Attorney General referenced an oft-cited passage by Judge Learned Hand, who held that good moral character under the INA requires adherence to “the generally accepted moral conventions” of the community. United States v. Francioso, 164 F.2d 163, 163 (2d Cir. 1947) [PDF version]. Good moral character is also, as we noted, a requirement for naturalization. The implementing regulations there state that the DHS must consider “the standards of the average citizen in the community of residence” in assessing whether the naturalization applicant established his or her good moral character for the relevant statutory period. See 8 CFR 316.10(a)(2).

Multiple DUI Convictions During Statutory Period Raise Presumption That Alien Lacks Good Moral Character: 27 I&N Dec. 664, 669-70, 671

The Attorney General held that “[m]ultiple DUI convictions during the relevant period are strong evidence that an alien lacked good moral character during that time and is thus not eligible for cancellation of removal.” He went further, holding that an alien with multiple DUI convictions during the statutory period “likely” lacked good moral character for the statutory period under the catch-all provision of INA 101(f). To this effect, the Attorney General cited to several recent Supreme Court decisions wherein the Court recognized the seriousness of driving under the influence.

While the Attorney General held that multiple DUI convictions during the statutory period is “strong evidence” that the alien lacked good moral character, he made clear that he was not holding that it is “conclusive evidence.” The Attorney General explained that “[t]here could be an unusual case in which an alien can establish that the multiple convictions were an aberration and can show good moral character.” Evidence of rehabilitation, however, does not suffice. In the cancellation context, the Attorney General noted that the INA requires that the alien show good moral character for the continuous 10-year period preceding the cancellation application — meaning that the alien “must show that he had good moral character even during the period within which he committed the DUI offenses.” While attempts at rehabilitation are “commendable,” the Attorney General held that they do not, without more, establish good moral character for the entire statutory period.

Thus, the Attorney General held that there is a “rebuttable presumption” that an alien with multiple DUI convictions during the statutory period lacked good moral character for the statutory period. As he explained more broadly, the alien will have a difficult time rebutting the presumption due to the requirement that the alien must have been of good moral character for the entire statutory period [see section].

Multiple DUI Convictions Suggest That The Alien Should Normally Be Denied Cancellation of Removal in the Exercise of Discretion: 27 I&N Dec. 664, 669, 670-72

The Attorney General stated that in light of the annual limitation of 4,000 grants of cancellation of removal (see INA 240A(e)(1)), “immigration judges should grant [cancellation], in an evenhanded way, only to the most deserving candidates.” He stated that the instant case “presents an opportunity to promote the uniform and fair enforcement of the immigration laws by clarifying how an alien's DUI convictions affect his eligibility for cancellation of removal.”

The Attorney General then stated that even separate from good moral character questions, an alien with multiple DUI convictions should likely be denied cancellation of removal in the exercise of discretion. He explained: “Multiple DUI convictions are a serious blemish on a person's record and reflect disregard for the safety of others and for the law.”

The Attorney General acknowledged that “there is no inflexible standard for determining who should be granted discretionary relief…” See Matter of C-V-T-, 22 I&N Dec. 7, 11 (BIA 1998) [PDF version]. Where the alien has a criminal record, adjudicators must weigh its “nature, recency, and seriousness” in exercising discretion. Id. Where the factors weighing against the favorable exercise of discretion are highly negative, the alien must present “additional offsetting favorable evidence” to offset those negative factors. See Matter of Sotelo-Sotelo, 23 I&N Dec. 201, 203 (BIA 2001) [PDF version]; Matter of Marin 16 I&N Dec. 581, 585 (BIA 1978) [PDF version].

The Attorney General stated: “Given the reckless and dangerous nature of the crime of DUI and the limited number of aliens who may be granted cancellation of removal each year, aliens with multiple DUI convictions are likely undeserving of such discretionary relief.”

This portion of the analysis is distinguishable from the good moral character analysis in that the Attorney General tied it specifically to cancellation of removal. Cancellation of removal not only involves aliens who are subject to removal from the United States, but also has an annual numerical limitation. Thus, while the Attorney General's analysis here is significant in cases involving whether an alien should be granted cancellation or certain other benefits or forms of relief which implicate discretion, it is separate from the analysis of whether an alien can satisfy the criteria for good moral character. In the cancellation context, it means that multiple DUI convictions should be considered a serious adverse factor against granting cancellation even when the occur outside of the 10-year statutory period for the good moral character criterion.

General Rule: 27 I&N Dec. 664, 671, 673 & n.3

Taking the two parts of his holding together, the Attorney General held: “Absent substantial relevant and credible contrary evidence, multiple DUI convictions require that the immigration judge deny cancellation of removal.” Thus, the Attorney General applied this principle to both the good moral character context (within the statutory period) and the general discretionary context (regardless of when the offenses occurred). That the ruling is broader in scope than merely implicating good moral character alone will potentially affect a broad range of immigration applications.

For example, the Attorney General provided that the Board could consider on remand whether the respondent was eligible for discretionary relief in the form of adjustment of status under INA 245(a). Because adjustment is discretionary, however, the Attorney General noted that “any decision to grant or deny adjustment of status, or a remand to pursue an application for adjustment of status, should include a careful analysis of whether an applicant with multiple DUI convictions merits such relief as a matter of discretion.”

Multiple DUI Convictions and the “Habitual Drunkard” Conditional Bar to Establishing Good Moral Character: 27 I&N Dec. 664, 670 n.2

The Attorney General stated that where an applicant for cancellation or another benefit requiring good moral character has multiple DUI convictions, “an immigration judge [should] assess whether the alien is or was a 'habitual drunkard' categorically lacking good moral character under section 101(f)(1) of the INA…”

The Attorney General noted that the DHS had presented evidence that individuals who are convicted of driving under the influence generally drove impaired on many occasions before actually being caught. Thus, multiple DUI convictions raise questions as to whether an alien is a “habitual drunkard” conditionally barred from establishing good moral character.

Applying Reasoning to the Instant Case: 27 I&N Dec. 664, 672-73

The Attorney General affirmed the decision of the BIA vacating the immigration judge's granting cancellation of removal to the respondent. The Attorney General held that the respondent's multiple DUI convictions warranted the presumption that he lacked good moral character during the requisite 10-year period. Although the respondent presented evidence of rehabilitation, evidence of rehabilitation alone does not rebut the presumption of no good moral character in cases of multiple DUI convictions.

Conclusion

The Attorney General's decision makes clear that alien's with multiple DUI convictions during the statutory period required for establishing good moral character should generally be found to have not established good moral character. The United States Citizenship and Immigration Services (USCIS) — which adjudicates naturalization applications and other benefits involving good moral character — has adopted policy guidance following the Attorney General's decision [see article]. While an alien may rebut the presumption of lack of good moral character, the Attorney General's providing that evidence of rehabilitation in insufficient suggests that there are very limited ways to do so. The Attorney General also instructed immigration judges to consider whether multiple DUI convictions show that the alien was a habitual drunkard, yet another avenue through which the alien may be found to have not been of good moral character.

The Attorney General also expanded his decision beyond the good moral character analysis, suggesting that for cancellation at least, multiple DUI convictions should usually lead to the denial of relief in the exercise of discretion. To this effect, he discussed factors specific to cancellation, including the annual limit on grants and the large number of applicants. It is unclear how far this analysis may apply outside of the cancellation context — although the Attorney General made clear that multiple DUIs should be considered in assessing whether an alien seeking adjustment in proceedings merits the favorable exercise of discretion (note that adjustment under INA 245(a) does not require the establishment of good moral character).

The Attorney General's decision is highly significant for aliens with DUI convictions seeking benefits involving good moral character, and may sweep further than that. It comes on the heels of an important BIA precedent holding that a history of driving under the influence is a serious adverse factor in the immigration detention context [see article]. It will bear monitoring how the decision is applied outside of the good moral character context in both immigration proceedings and in applications outside of proceedings. An alien with one or more DUI convictions, whether in removal proceedings or seeking benefits outside of proceedings, should consult with an experienced immigration attorney for case-specific guidance.