Emma Heo

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To: Attorney at MIRC
From: Emma Heo, Associate
Date: November 19, 2017
Re: DUI Convictions and Naturalization

BRIEF SUMMARY

You have asked me to examine how DUI convictions or arrests affect

the petitioners ability to naturalize. In order to examine the relationship

between DUI convictions and finding of good moral character, I consider what

circumstances render DUI convictions as a crime of moral turpitude.

Whether DUI convictions impede the petitioner from naturalization depends

on several factors. A simple DUI conviction does not affect naturalization,

but multiple DUI convictions may lend USCIS to weigh other factors in the

petition. Factors that mitigate the finding of lack of good moral character

are: forthrightness in admitting the DUI conviction, having no other criminal

conviction, and good standing in the petitioners community. Factors that

aggravate the finding of lack of good moral character are: testimonies that

lack credibility, and aggravated DUI convictions.

DISCUSSION

A petitioners DUI conviction(s) may interfere with satisfying the good

moral character requirement for naturalization. Immigration Law and

Procedure 95.04 listed the acts that disqualify good moral character for

purposes of naturalization. The relevant acts to examine whether DUI

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convictions mandate a finding of lack of good moral character are habitual

drunkard and moral turpitude. 1 Charles Gordon, Stanley Mailman,

Stephen Yale-Loehr, and Ronald Y. Wada Immigration Law & Procedure,

95.04 (Matthew Bender, Rev. Ed.). Immigration statutes do not concretely

define or have a standard of a habitual drunkard. Ledezma-Cosino v.

Sessions, 857 F.3d 1042, (9th Cir. 2017). Because the ambiguity of habitual

drunkard does not contribute to understanding how USCIS evaluates DUI

convictions, this memo will only explore whether DUI convictions are a crime

of moral turpitude.

DUI convictions are not inherently a crime of moral turpitude.

Multiple factors can mitigate or aggravate a finding of lack of good moral

character when the petition includes DUI convictions. A simple DUI

conviction is not a crime of moral turpitude. While multiple DUI convictions

do not amount to a crime of moral turpitude, it will lend the USCIS agent to

consider the totality of the petition to determine whether the petitioner lacks

good moral character. Several factors can mitigate or aggravate the finding

of lack of good moral character when the petition has a DUI conviction.

Factors that mitigate the finding of lack of good moral character are:

(a) Forthrightness about the DUI convictions

(b) Having no other criminal convictions

(c) Demonstrating good standing in the petitioners community

Factors that aggravate the finding of lack of good moral character are:

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(a) Lacking testimonial credibility

(b) An aggravated DUI conviction

USCIS evaluates good moral character on a case-by-case basis because it does

not have a fixed standard. As such, it is unclear how the court balances the

mitigating and aggravating factors I have identified.

I. Whether a DUI conviction is a crime of moral turpitude

a. Simple DUI conviction

A simple DUI conviction is not a crime of moral turpitude. If the

petitioners DUI conviction does not involve other offenses in addition to the

offense of driving under the influence, it is a simple DUI. In In re Lopez-

Meza, the Board of Immigration Appeals (BIA) concluded a DUI without

additional offenses do not constitute a conduct that rises to the level of moral

turpitude. In re Jose Luis Lopez-Meza (1999) I. & N. 22 (BIA) at 1188.

b. Multiple DUI convictions

A petitioner with several simple DUI convictions has not necessarily

committed a crime of moral turpitude. USCIS will not necessarily find

against good moral character even if the petitioner has several, simple DUI

convictions. In re Torres-Varela, the Immigration and Naturalization Service

(INS) argued the petitioners fourth DUI constituted a crime of moral

turpitude, even though all were simple DUI convictions. The BIA disagreed

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and held that multiple convictions of the same, nonturpitudinous offense do

not aggregate to a turpitudinous conduct. In re Fernando Alfonso Torres-

Varela (2001) I. &N. 23 (BIA) at 78.

It is nevertheless possible that the USCIS will determine multiple DUI

convictions as a crime of moral turpitude. If the petitioner has multiple DUI

convictions, USCIS will weigh other elements of the petition to determine

good moral character. In Tuan Le, the petitioner had two simple DUI

convictions. The Pennsylvania Eastern District Court reasoned, even if the

DUI convictions do not amount to a judgment against good moral character,

the convictions are negative factors that lead to an examination of the

circumstances. Tuan Le v. Elwood, No. 02-cv-3368, 2003 U.S. Dist. LEXIS

6635, at *2 (D. Penn. Mar. 4, 2003). Below, I explore possible factors USCIS

may consider in light of a petition with DUI convictions.

II. Mitigating factors

a. Forthrightness

Petitioners who demonstrably take responsibility for their DUI

convictions can successfully mitigate the negative impact of the convictions

on their petition. USCIS is less likely to find lack of good moral character if

the petitioner demonstrates forthrightness in accepting responsibility for

their DUI convictions. For instance, the petitioner in Yaqub two DUI arrests.

The Ohio Southern District Court was concerned with the DUI convictions

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but was, impressed with [the] forthrightness in admitting without making

excuses. Yaqub v. Gonzalez, No. 1:05-cv-170, 2006 U.S. Dist. LEXIS 36727,

at *14. The court did not find the petitioner lacked good moral character. The

petitioner in Ragoonanan had a fourth-degree misdemeanor DUI conviction.

He completed a chemical-abuse assessment, and openly took responsibility

for the conviction in his petition. The Minnesota District Court held the

petitioner did not lack good moral character, since the petitioners candor and

completion of the assessment demonstrated he took the DUI convictions

seriously. Ragoonanan v. USCIS, No. 07-3461, 2007 U.S. Dist. LEXIS 92922,

at *1 (D. Minn. Dec. 17, 2007).

b. No other criminal convictions

Petitioners without other criminal convictions in addition to the DUI

convictions are more likely to fulfill the good moral character requirement.

USCIS will likely find the petitioner does not lack good moral character if the

petitioner does not have other criminal convictions in addition to the DUI

convictions. The Ohio Southern District Court in Yaqub pointed to the

petitioners lack of any other criminal convictions to hold they did not find

lack of good moral character. Yaqub, No.1:05-cv-170. The Minnesota District

Court in Ragoonanan likewise did not find lack of good moral character, and

emphasized that the petitioners DUI conviction was an exception to an

otherwise clean criminal record. Ragoonanan, No. 07-3461.

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c. Positive member of the community

Petitioners who demonstrate good standing in their community may

persuade the USCIS to find good moral character, despite the DUI

convictions. USCIS is likely to favorably find good moral characters if the

petitioners show they are positive members of their community by including

proofs of good employment standing, education endeavors, or community

involvement. For example, the court in Yaqub held the petitioners

education, employment prospects, and community involvement are reflective

of the petitioners good moral character. Yaqub, No.1:05-cv-170. Similarly,

the petition in Ragoonanan included proof of good standing in his

employment, timely tax payments, and community work. The Minnesota

District Court noted the petitioners good standing in his community helped

in finding good moral character. Ragoonanan, No. 07-3461.

III. Aggravating factors

a. Lack of testimonial credibility

Petitioners whose testimonies are not truthful will likely dissuade the

USCIS that the petitioner has good moral character. If the USCIS has

reasons to find the petitioners testimonials about the DUI convictions lack

candor, the petitioner will likely not have good moral character. The

Pennsylvania Eastern District Court in Tuan Le held the petitioner lacked

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good moral character, and cited to the inconsistencies in the petitions

evidence. The petitioner claimed he did not excessively consume alcohol on

the days of his DUI arrests, despite the high blood alcohol content results.

He also failed to frankly acknowledge why the police officer stopped him on

the days of his arrests. The court found the petitioners inconsistent claims

lacked candor, which, although not necessarily false testimony, is not

consistent with good moral character. Tuan Le, No. 02-cv-3368 at 9. In Rico

v INS, the petitioner had a DUI conviction during the five-year statutory

period before his application for naturalization. He additionally had four

DUI convictions preceding the five-year statutory period. Despite the

petitioners history with DUI convictions, he claimed he was not responsible

for one of the DUI charges. The petitioner also made assertions the court

found doubtful, like claiming he completely stopped consuming alcohol and

that he also no longer drove, even though he maintained a valid drivers

license. The New York Eastern District Court held the petitioner did not have

good moral character because his testimony lacked candor. Rico v. INS, 262

F. Supp. 2d 6 (2003).

b. Aggravated DUI conviction

Petitioners with an aggravated DUI conviction are very unlikely to

prove good moral character. Aggravated DUI convictions constitute a crime

involving moral turpitude. In re Lopez-Meza, the BIA held the petitioner had

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committed an aggravated DUI because the petitioner had a DUI conviction

with an additional offense of driving with the knowledge of not having a valid

license. More importantly, the BIA established that an aggravated DUI was a

crime of moral turpitude. In re Lopez-Meza, 22 I. &N. Courts have followed

this precedence. The 7th Circuit Court of Appeals held the petitioner in

Duron-Ortiz could not satisfy the good moral character requirement because

of his aggravated DUI conviction. Duron-Ortiz v. Holder, 698 F.3d 523, 3

(2012).

Petitioners should note that not all aggravated DUIs have the same

criterion because the specific statutory language of the state where the crime

took place defines an aggravated DUI. Whether the particular DUI

conviction is a crime of moral turpitude depends on the statutory definition of

the state where the crime happened. In re Lopez-Meza, the BIA considered

the relevant Arizona Revised Statutes to examine whether the offenses were

the petitioners convictions were crimes of moral turpitude under sections

involving DUI convictions. In re Lopez-Meza, 22 I. &N.