• Introduction
• Statutory Background
• Guidance on the Effect of Driving Under the Influence
• Conclusion

Introduction

On October 25, 2019, U.S. Attorney General William P. Barr published a precedent decision in Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019) [PDF version]. In the decision, which we discuss in detail in a separate article, the Attorney General held that two or more convictions for driving under the influence during the statutory period in which an applicant for cancellation of removal must establish good moral character should generally lead to a finding that the applicant was not of good moral character for the statutory period [see article].

On December 10, 2019, the United States Citizenship and Immigration Services (USCIS) published new policy guidance addressing Matter of Castillo-Perez in its Policy Manual (PM) [PDF version]. The PM update examines how the Attorney General’s decision should be applied in the context of good moral character determinations for naturalization applicants. In this article, we will examine the new USCIS guidance on the effect of convictions for driving under the influence on a naturalization applicant’s ability to establish good moral character for the requisite statutory period.

Statutory Background

The concept of “good moral character” is articulated at section 101(f) of the INA. For certain immigration benefits, an alien must show that he or she was of good moral character for a certain number of years preceding the application. Certain acts bar the establishment of good moral character regardless of when they occurred. Other acts, such as those we will discuss in the instant article, only impair the establishment of good moral character if they occur within the relevant statutory period.

In the context of naturalization, the applicant must establish that he or she was of good moral character for the five years preceding the application. INA 316(a). Certain spouses of U.S. citizens and certain service members and veterans have shorter statutory periods in some cases. See 12 USCIS-PM F.2. The statute does however permit the adjudicator to look at acts that occurred outside the five year window when determining whether the applicant sustained his or her burden of establishing good moral character. INA 316(e).

Good moral character is an eligibility requirement for certain other benefits besides naturalization and cancellation of removal.

Guidance on the Effect of Driving Under the Influence

The USCIS PM now lists driving under the influence as a conditional bar to establishing good moral character. 12 USCIS-PM F.2. It is notably the only one of the conditional bars to good moral character that is not expressly listed in the INA or in its implementing regulations. Id.

The USCIS defines “driving under the influence” as encompassing “all state and federal impaired-driving offenses…” 12 USCIS-PM F.2(K)(1). This includes “’driving while intoxicated,’ ‘operating under the influence,’ and other offenses that make it unlawful for a person to operate a motor vehicle while impaired.” Id. The term does not include lesser offenses that do not require proof of impairment — the USCIS provides “negligent driving” as one such example.

In accordance with the Attorney General’s decision in Matter of Castillo-Perez, the USCIS PM provides that “[e]vidence of two or more DUI convictions during the statutory period establishes a rebuttable presumption that an alien lacks [good moral character].” This means that although two or more convictions for driving under the influence during the statutory period generally blocks an alien from establishing good moral character during such period, the alien may proffer evidence to the rebut the presumption that he or she lacked good moral character. Quoting from Matter of Castillo-Perez, the USCIS explains that the alien may overcome the presumption of no good moral character by providing “substantial relevant and credible contrary evidence” both that he or she was of good moral character when the offenses occurred and that the convictions were an aberration. Evidence of subsequent rehabilitation does not, in and of itself, rebut the presumption of a lack of good moral character because the alien must establish that he or she was of good moral character when the offenses occurred.

While the INA does not specifically address convictions for driving under the influence, it does provide that an alien who is or was a “habitual drunkard” during the statutory period cannot establish good moral character. See INA 101(f)(1); 8 CFR 316.10(b)(2)(xii). In a footnote in Matter of Castillo-Perez, the Attorney General instructed immigration judges to consider whether evidence of convictions for driving under the influence during the statutory period suggests that the alien was a habitual drunkard. The USCIS echoes the Attorney General’s guidance in the PM: “[A]rrests or multiple convictions for … driving under the influence may be indicators that the applicant [for naturalization] is or was a habitual drunkard.”

Conclusion

Taken together, the USCIS guidance now specifies two ways in which convictions for driving under the influence during the relevant statutory period may conditionally bar an alien from establishing good moral character. First, multiple convictions for driving under the influence during the statutory period will, in the ordinary case, render the applicant unable to establish good moral character during the statutory period. Second, multiple convictions or arrests for driving under the influence or in conjunction with other alcohol-related incidents may, depending on the particular facts, lead to a finding that the alien is or was a habitual drunkard barred from establishing good moral character for the statutory period.

It is also important to reiterate that the USCIS may consider acts occurring outside the relevant statutory period in making a good moral character determination. Thus, convictions for driving under the influence outside the statutory period may constitute negative factors weighing against an applicant’s establishing good moral character that would need to be counterbalanced by positive equities in the applicant’s favor.

A permanent resident seeking naturalization should always consult with an experienced immigration attorney. An attorney will be able to determine whether there are any factors which may complicate the application, such as criminal convictions or other factors. The same applies for noncitizens seeking other immigration benefits or forms of relief which may require a showing of good moral character. We discuss citizenship and naturalization more broadly in a growing selection of articles on site [see category].