News Articles

Jul 19 2003
TPS for El Salvador Extended

Jun 29 2003
Honduran and Nicaraguan TPS Extension Deadline July 7, 2003

Jun 3 2003
DUI Crime of Moral Turpitude?

May 9 2003
Divorce and Immigration

Feb 17 2003
Extension of Special Registration Group 3 & 4

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DUI Crime of Moral Turpitude?

For years the government has been attempting to remove legal aliens in the United States for having been convicted for DUI or DWI under various state laws.  Because the federal government must rely on state law definitions of this crime, the effect of the convictions from state to state vary.  Different convictions are interpreted under federal immigration law different ways depending on the state definition.

A common misunderstanding is that federal immigration judges will look at the facts under which the alien was convicted, this often not the case.  Instead, the definitions are the focus.  In other words, the cases that come before an immigration judge are decided on whether the state definition of a crime meets the federal definition of a deportable/removable crime. 

As it regards DWI/DUI the law has been interpreted many different ways.  For example, in Texas the government often did not attempt to argue that DWI was a crime of moral turpitude, but rather was a crime of violence.  The focus of enforcement became those who had been convicted of three or more DWIs ten years or less apart.  The government would argue that a DWI 3rd, a felony under Texas law, is a crime of violence and is therefore, an aggravated felony under immigration law.  This result was devastating to an alien, who would often find themselves without relief to remain in the United States. Finally, the United States Court of Appeals - 5th Circuit, ruled that DWI under Texas law was not a crime of violence.  This ruling removed the basis of the aggravated felony definition (crime of violence punishable with over one year incarceration) and therefore, made many aliens free of removability.

Since that time, the government now argues that DWI is a "crime involving moral turpitude."  As such, this can be the basis of removability as well.  Courts have struggled with the definition of what constitutes a crime of moral turpitude as the definition under federal law is loosely worded.  In short, the definition reads "inherently base, vile or depraved and contrary to the accepted rules of morality."  As can be expected, this definition is open to much debate and interpretation.

Recently in an Arizona state case, the United States Court of Appeals - 9th Circuit, interpreted whether a conviction for Aggravated DUI was a crime involving moral turpitude.  The Court decided that because the crime could be seperated into two different categories of crime, that it was not a crime of moral turpitude.  Basically, the opinion of the court rests upon one main distinction.  In Arizona one could be convicted of this crime for operation of a vehicle while intoxicated or simply having control of a vehicle while intoxicated.  The first act the court stated is "despicable."  However, with regard to the second act, the Court suggested that one could be convicted of the crime  simply by being intoxicated and being in one's car in one's own driveway.  The Court stated that this second act could not meet the definition of a crime involving turpitude.

This decision, of course, sheds light on various arguments that can be made in relation to this common crime.  A person who is not a citizen of the United States should obviously act cautiously if ever accused of this crime.  Certainly one does not want to end up in immigration court arguing whether one should be able to remain in the United States or be removed if one is convicted of this crime.  One way to prevent this is to take full opportunity of defending oneself from the initial charge.  By defending oneself in criminal court, one can take full opportunity of a higher burden of proof.  Making the government prove their case "beyond a reasonable doubt" as well as the right to a trial by jury is required by the Bill of Rights, not applicable in the immigration courts.  Exercising these rights in criminal court before entering immigration court, where these rights do not exist, becomes critical in maintaining legal status in this country.