DWIs and related offenses are already offenses that have grave consequences. These offenses impact driving authorization, insurance costs, and expose a person to heightened criminal charges in the future. A misdemeanor will morph into a felony quickly for repeat offenders.
The consequences of DWIs are not limited to more commonly known issues, such as licensing. DWIs are now becoming a direct threat to a person’s ability to fight to remain in the United States regardless of the size of the person’s family, hardship imposed, or other positive contributions a person has made to his or her community.
In late October 2019, the United States Attorney General issued a decision in the Matter of CASTILLO-PEREZ, 27 I&N Dec. 664 (A.G. 2019), regarding non-citizens in removal proceedings who have two or more convictions of driving under the influence within a ten year time period. This decision greatly limits the relief available for these persons, rendering them ineligible for cancellation of removal under INA section 240A(b), 8 U.S.C. § 1229b(b).
Castillo-Perez holds that “evidence of two or more convictions for driving under the influence during the relevant period establishes a rebuttable presumption that the alien lacked good moral character during that time.” 27 I&N at 664; see INA § 101(f), 8 U.S.C. § 1101(f). This means that, “[b]ecause only aliens who possessed good moral character for a 10-year period are eligible for cancellation of removal . . ., such evidence also presumptively establishes that the alien is not eligible for that relief.” Id.; see INA § 240A(b), 8 U.S.C. § 1229b(b).
Technically, this new policy affects “admissibility,” or a person’s ability to gain admission to the United States, either through physical entry into the country or by applying for a new status such as a visa, permanent residency, or citizenship. In Castillo-Perez, the respondent tried to gain admission into the United States after he had been placed in removal proceedings by filing an application for Cancellation of Removal. In this context, the Attorney General affirmed the Board of Immigration Appeals’ decision to deny the Cancellation of Removal petition and order the Respondent removed to Mexico.
While this decision arises from the context of a removal case, it applies more generally to questions of a non-citizen’s admissibility in other contexts as well, as immigration authorities will consider “good moral character” generally as a condition for admissibility. It may factor into the discretion USCIS has in approving an application for permanent residency, although the Castillo decision specifically did not reach this question. Recent decisions from USCIS has shown that it is applying a similar standard without saying it is.
However, as this is a new decision, it remains unclear how it will be applied to slightly different situations. For example, will a non-citizen with one DUI conviction and one conviction for Refusal to take a Chemical Test also be found to be presumptively ineligible for cancellation of removal? How will an application for citizenship, which requires a showing of good moral character for a period of five years, be impacted? Will the government reach outside of the five-year period when assessing character? Undoubtedly, this trend will make securing release on bond before the immigration courts more of a challenge. Federal authorities are showing a no holds barred approach to multiple DWIs regardless of the circumstances in which they occur or the time between.
A vigorous defense against even a first time DWI is becoming more important as federal and state laws create more consequences that linger for years after a DWI offense. Wilson Law Group is ready to defend a person in their first or third DWI. If you think you are facing a DWI charge soon, Wilson Law Group invites you to schedule an appointment for a free initial consultation.