Immigration Consequences of a California DUI Conviction

If you are a non-citizen with a single conviction for California DUI -- without any additional aggravating factors -- the odds are that you will not face immigration consequences such as deportation. 1

But under certain circumstances, a California DUI conviction may be considered a deportable crime or an inadmissible crime under criminal immigration law…and thus affect your ability to stay in the United States.

Specifically, you may be deported or have trouble adjusting your immigration status if you are convicted of:

  • DUI while driving on a suspended license,2

  • DUI of drugs,3

  • DUI in connection with child endangerment charges (i.e., if you are convicted for driving drunk with a child in the car),4 or

  • Multiple DUIs (or a DUI on top of convictions for other crimes).5

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Example : Luis is from Mexico but holds a U.S. green card. He is arrested for California driving under the influence (DUI) - Vehicle Code 23152(a).

Luis is convicted of the charge and receives a six-month California driver's license suspension. This DUI conviction has no effect on his immigration status.

BUT, while Luis's license is still suspended, his friend James drives him to a bar. Luis and James both get drunk at the bar—but James is even drunker than Luis. So Luis decides to drive them both home in James' car.

They are pulled over on the way home. Luis is arrested and charged both with DUI and with driving on a suspended license. This time, if he is convicted, he may need to worry about his immigration status…because driving while intoxicated and while one's license is suspended is considered by immigration authorities to be a “crime of moral turpitude.” 6

This is why it is extremely important for all non-citizens facing DUI charges to be represented by a DUI defense and immigration attorney who understands immigration law as well as criminal law . . . and can craft a defense strategy that will avoid the potential immigration consequences of a DUI conviction.

In order to help you better understand the effect of a California DUI conviction on your immigration status, our California criminal defense and immigration attorneys will address the following:

1. Introduction to Criminal Immigration Law
2. Ordinary DUI Convictions and Immigration Law
3. DUI on a Suspended License
4. DUI of Drugs
5. DUI With a Child in the Car
6. Immigration Consequences of Multiple DUI Convictions
7. Impact of a DUI Conviction on Naturalization
8. Entering Canada with a DUI

If, after reading this article, you have additional questions, we invite you to contact us.

1.Introduction to Criminal Immigration Law

At the outset, it is important to understand just what the potential immigration consequences might be for a non-citizen who is convicted of California driving under the influence (“DUI”).

Under the federal Immigration and Nationality Act (usually referred to as the “INA”), certain criminal convictions can have one of the following immigration consequences:

  1. Deportation, and/or

  2. Inadmissibility.7

If a non-citizen is deportable, that means s/he may be removed from the country.

If an immigrant is inadmissible, that means s/he may not be able to

  1. re-enter the country after leaving,

  2. become a U.S. citizen,

  3. apply for permanent residence (a “green card”), or

  4. for illegal immigrants, apply for an “adjustment of status” – that is, a change from illegal to legal immigration status. 8

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If you are convicted of a so-called “inadmissible crime,” a green card may be out of reach.

A DUI conviction could make you deportable or inadmissible if it is either a so-called “deportable crime” (a crime that can lead to deportation) or a so-called “inadmissible crime” (a crime that makes you inadmissible).

The major categories of “deportable crimes” include:

  1. So-called “crimes of moral turpitude,”

  2. So-called “aggravated felonies” (which includes crimes like murder, rape, and theft crimes that carry a sentence of more than one (1) year in prison9), and

  3. Controlled substances (drug) offenses.10

And inadmissibility is typically triggered by:

  1. A conviction for a crime of moral turpitude,

  2. A conviction for a drug crime, or

  3. Convictions for two (2) or more crimes where the total prison sentences add up to five (5) years or more. 11

So the key question is whether a California DUI conviction will fit into any of these categories of deportable or inadmissible crimes.

2. Ordinary DUI Convictions and Immigration Law

Because of the way courts currently interpret criminal immigration law, you will not face immigration consequences for most ordinary DUI convictions for driving under the influence of alcohol.12

This statement applies to a variety of standard DUI charges, including:

  • DUI under Vehicle Code 23152(a) VC,

  • DUI causing injury,

  • Vehicular manslaughter while intoxicated, and

  • Gross vehicular manslaughter while intoxicated.13

The reason that most DUI convictions will not lead to deportation or inadmissibility is that they do not fall into any of the categories of deportable and inadmissible crimes.

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DUI arrests are frequently made at DUI checkpoints like this one.

Most DUI convictions are not crimes of moral turpitude.

For example, it is settled law that a typical DUI is not a so-called “crime of moral turpitude.” 14

The INA does not define what a “crime of moral turpitude” is.15 But courts have relied on the federal Board of Immigration Appeal's interpretation, which defines moral turpitude as "conduct that shocks the public conscience."xvi

This includes conduct that is inherently base, vile, or depraved, and not acceptable for persons living in a society. 17

A key factor is whether the legal definition of the crime involves some kind of criminal mental state. 18 This could include something like specific intent to commit the crime, or criminal recklessness.19

That is why a simple DUI conviction is not a crime of moral turpitude—because no criminal mental state is required for a conviction. xx The only “elements” of the crime of California DUI are that:

  1. You drove a vehicle, and

  2. You were under the influence of alcohol or drugs when you did so.21

In other words, the prosecutor doesn't need to show that you intended to drive drunk, or that you intended to injure anyone, etc., in order to get a DUI conviction. Without some sort of intent element, a crime cannot be a crime of moral turpitude. 22

Example : Francisco is from Guatemala and is living in the U.S. illegally. One New Year's Eve, he is pulled over while driving home from a friend's party where he had been drinking. He is arrested for DUI.

The only facts that the prosecutor has to allege and prove to convict Francisco of DUI are that he was driving, and that he was doing so under the influence of alcohol. Francisco decides to plead “no-contest”, which involves admitting that both of those facts are true.

But Francisco's no-contest plea does not amount to admitting that he had any kind of criminal intent or state of mind. His DUI conviction is therefore not a crime of moral turpitude.

This means that it will not make him inadmissible—and will not prevent him from adjusting his status from illegal to legal immigrant if he tries to do so in the future.

Most DUI convictions are not aggravated felonies.

As we discussed above, another category of deportable crimes is “aggravated felonies.” 23 Most California DUIs do not fall into this category either.

The INA specifically lists the kinds of felony crimes that are “aggravated felonies” for purposes of immigration law.24 This list does not include DUI. 25

Moreover, the DUI penalties for most convictions of California DUI—without aggravating factors or multiple convictions—are misdemeanor penalties. 26 So, because most California DUI convictions are misdemeanors, they cannot by definition be aggravated felonies.

One kind of aggravated felony that is listed in that section is "a crime of violence . . . for which the term of imprisonment [is] at least one year."27 But theUnited States Supreme Court has determined that even a conviction ofDUI causing injury does not count as a "crime of violence." 28

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Even a DUI causing injury will not trigger immigration consequences without additional aggravating factors.

3. DUI on a Suspended License

However, the unfortunate fact is that DUI convictions that involve certain aggravating factors can affect your immigration status.

One such aggravating factor is if you were driving on a suspended license when you were arrested for DUI. 29

This is because driving on a suspended license does require a culpable state of mind—you need to have known that your license was suspended and driven anyway.30 Therefore, DUI while on a suspended license is considered a “crime of moral turpitude.”31

4. DUI of Drugs

In addition, while a simple DUI based on driving drunk is unlikely to have immigration consequences—a conviction for California “driving under the influence of drugs” (DUI of drugs) is much more likely to affect your immigration status.

This is because you can be made either deportable or inadmissible if you are convicted of a crime involving controlled substances. 32 California's DUI of drugs law makes it a crime to drive under the influence of drugs…which is clearly a crime related to controlled substances.33

Example : Elizabeth is an immigrant from Brazil and lives in the U.S. on a green card. One day she is pulled over for running a stop sign. The highway patrol officer suspects that she has been smoking pot…and Elizabeth finds herself facing charges of “ driving under the influence of marijuana.”

When Elizabeth consults a criminal and immigration attorney, she learns that a conviction for this crime could lead to her being deported—because it is a controlled substances offense. Therefore, she and her attorney decide to fight the charges aggressively.

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The only exception is if you are convicted of DUI of drugs for driving under the influence of a drug that is banned by California's drug laws—but not by federal drug laws. This is because the INA only imposes immigration consequences for drug crimes related to substances that are banned by the federal Controlled Substances Act. 34

5. DUI With a Child in the Car

Another situation in which a DUI conviction could lead to adverse immigration consequences is if you are driving with a child in the car—and you are also charged with and convicted of child endangerment in connection with the DUI.35

If you are arrested for drunk driving while you have a child under 14 in the car, prosecutors may take one of two approaches. They may:

  1. seek enhanced penalties for DUI with a child in the car, 36 or

  1. instead of—or in addition to—those enhanced penalties, charge the separate offense of child endangerment under Penal Code 273a PC in addition to the DUI charges.37

Child endangerment—like driving on a suspended license—does require a criminal state of mind: you need to have knowingly put the child in danger to be convicted of this offense.38 Therefore, it is considered a “crime of moral turpitude” and can affect your immigration status.39

According to Santa Barbara DUI and immigration attorney John Murray 40:

“When I see a DUI client who is not a U.S. citizen, and who had a child in the car when he or she was allegedly driving drunk, I know immediately where we have to focus our attention. A regular DUI, even with enhanced penalties for having a child under 14 in the car, won't make the client deportable or inadmissible—so this is the outcome we try to get. A separate child endangerment conviction, on the other hand, is a crime of moral turpitude. So that is what we try our best to avoid.”

6. Immigration Consequences of Multiple DUI Convictions

You may also need to be concerned about your immigration status if you are facing multiple DUI convictions—or a conviction for DUI on top of other past criminal convictions.

As we discussed above, you can be made inadmissible if:

  1. You are convicted of two (2) or more crimes, and

  2. The total sentences for all the crimes of which you were convicted add up to five (5) years or more. 41

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Receiving long prison sentences for DUI convictions could lead to immigration problems.

This is most likely to be a concern if you are convicted of felony DUI based on prior convictions.

Specifically, being convicted of DUI four (4) or more times could lead to a prison term of several years. 42 That, in turn, could combine with sentences you received for your prior DUI convictions—or another crime—to take you over the 5-year sentence threshold and make you inadmissible.

Example : Tommy, a non-citizen, is convicted of DUI four times. His second conviction involves the aggravating factor of driving at excessive speeds. 43 His third conviction is for felony DUI causing injury, and he is sentenced to 18 months in jail.44 By his fourth conviction, the judge is inclined to be extremely harsh with him and sentences him to another four (4) years in prison.

Now that Tommy has been convicted of more than 2 offenses with an aggregate sentence of imprisonment of 5 years, he is inadmissible.

7. Impact of a DUI Conviction on Naturalization

There is one way in which a single DUI conviction without aggravating factors could affect your immigration status. That is if you seek “naturalization”—aka, becoming a U.S. citizen.45

This is because, in order to become a citizen, you have to demonstrate “good moral character.” 46 So any criminal history, including a California DUI, could affect a person's application to naturalize.

In reviewing an application to naturalize, the Attorney General can review the person's conduct from all time periods, but focuses on the five years preceding the application.47

Still, a single uncomplicated DUI conviction probably would not prevent you from becoming a citizen. 48 Even two such convictions will probably not prevent you from showing good moral character.49

But—in combination with other problems—a DUI conviction, or multiple DUI convictions, could prevent you from showing good moral character. 50

Example : Jose is applying to become a citizen of the U.S. He has 5 DUI convictions on his record. He also has a conviction for attempted statutory rape, and he is not completely honest at his immigration court hearing. As a result, he is denied naturalization because the judge decides he lacks good moral character. 51

8. Entering Canada with a DUI

Another potential immigration consequence of a California DUI conviction is that you may be unable to travel to Canada. Unlike U.S. immigration law, Canadian immigration law makes you inadmissible for just a single, uncomplicated DUI conviction.52

This applies to U.S. citizens as well as to non-U.S. citizens.

If you need to travel to Canada with a DUI on your record, consult with an experienced DUI attorney--because there ARE ways to get around the tough restrictions on entering Canada with a DUI.

Call Us for Help…

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If you or loved one is charged with a DUI and are an immigrant and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

For more information about the criminal defense of immigrants in Nevada, please see our page on the criminal defense of immigrants in Nevada.

You may also find helpful information in our related articles on California DUI Defense; California Deportable Crimes; California Inadmissible Crimes; California Child Endangerment Law Penal Code 273a PC; California Driving Under the Influence (DUI) Under Vehicle Code 23152(a) VC; California Driver's License Suspensions from a First-Time DUI; Driving on a Suspended License in California Vehicle Code 14601 VC; “Crimes Involving Moral Turpitude” in California Criminal Law; DUI With a BAC of .08 or Greater Under Vehicle Code 23152(b) VC; Nolo Contendere or “No Contest” Pleas in California Criminal Law; Legal Definition of a Felony Crime in California Law; California DUI Penalties, Punishment & Sentencing; Legal Definition of a Misdemeanor in California Law; Vehicle Code 23153 VC DUI Causing Injury; California's “Driving Under the Influence of Drugs” (DUID) Laws; California “Driving Under the Influence of Marijuana” Laws; DUI With a Child in the Car in California; Felony DUI Based on Prior Convictions in California; and Travel to Canada with a DUI.

Legal References:

1 Immigration & Nationality Act (“INA”) 237, 8 U.S.C. 1227 – Deportable crimes [does not provide for deportation after a DUI conviction]. (“(a) Classes of deportable aliens: Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: . . . (2) Criminal offenses (A) General crimes (i) Crimes of moral turpitude Any alien who-- (I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable. (ii) Multiple criminal convictions Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable. (iii) Aggravated felony Any alien who is convicted of an aggravated felony at any time after admission is deportable. (iv) High speed flight Any alien who is convicted of a violation of section 758 of Title 18 (relating to high speed flight from an immigration checkpoint) is deportable. (v) Failure to register as a sex offender Any alien who is convicted under section 2250 of Title 18 is deportable. (vi) Waiver authorized Clauses (i), (ii), (iii), and (iv) shall not apply in the case of an alien with respect to a criminal conviction if the alien subsequent to the criminal conviction has been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several States. (B) Controlled substances (i) Conviction Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable. (ii) Drug abusers and addicts Any alien who is, or at any time after admission has been, a drug abuser or addict is deportable. (C) Certain firearm offenses Any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of Title 18) in violation of any law is deportable. (D) Miscellaneous crimes Any alien who at any time has been convicted (the judgment on such conviction becoming final) of, or has been so convicted of a conspiracy or attempt to violate-- (i) any offense under chapter 37 (relating to espionage), chapter 105 (relating to sabotage), or chapter 115 (relating to treason and sedition) of Title 18 for which a term of imprisonment of five or more years may be imposed; (ii) any offense under section 871 or 960 of Title 18; (iii) a violation of any provision of the Military Selective Service Act (50 U.S.C. App. 451 et seq.) or the Trading With the Enemy Act (50 U.S.C. App. 1 et seq.); or (iv) a violation of section 1185 or 1328 of this title, is deportable. (E) Crimes of domestic violence, stalking, or violation of protection order, crimes against children and (i) Domestic violence, stalking, and child abuse Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable. For purposes of this clause, the term “crime of domestic violence” means any crime of violence (as defined in section 16 of Title 18) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual's acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government. (ii) Violators of protection orders Any alien who at any time after admission is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable. For purposes of this clause, the term “protection order” means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding. (F) Trafficking Any alien described in section 1182(a)(2)(H) of this title is deportable.“)

See also INA 212, 8 U.S.C. 1182 – (a) Inadmissible crimes [does not make an alien inadmissible for a single DUI conviction]. (“Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States: . . . (2) Criminal and related grounds (A) Conviction of certain crimes (i) In general Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-- (I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or (II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), is inadmissible. (ii) Exception Clause (i)(I) shall not apply to an alien who committed only one crime if-- (I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or (II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed). (B) Multiple criminal convictions Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more is inadmissible. (C) Controlled substance traffickers Any alien who the consular officer or the Attorney General knows or has reason to believe-- (i) is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 802 of Title 21), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so; or (ii) is the spouse, son, or daughter of an alien inadmissible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity, is inadmissible. (D) Prostitution and commercialized vice Any alien who-- (i) is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status, (ii) directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa, admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives or (within such 10-year period) received, in whole or in part, the proceeds of prostitution, or (iii) is coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution, is inadmissible. (E) Certain aliens involved in serious criminal activity who have asserted immunity from prosecution Any alien-- (i) who has committed in the United States at any time a serious criminal offense (as defined in section 1101(h) of this title), (ii) for whom immunity from criminal jurisdiction was exercised with respect to that offense, (iii) who as a consequence of the offense and exercise of immunity has departed from the United States, and (iv) who has not subsequently submitted fully to the jurisdiction of the court in the United States having jurisdiction with respect to that offense, is inadmissible. (F) Waiver authorized For provision authorizing waiver of certain subparagraphs of this paragraph, see subsection (h) of this section. (G) Foreign government officials who have committed particularly severe violations of religious freedom Any alien who, while serving as a foreign government official, was responsible for or directly carried out, at any time, particularly severe violations of religious freedom, as defined in section 6402 of Title 22, is inadmissible. (H) Significant traffickers in persons (i) In general Any alien who commits or conspires to commit human trafficking offenses in the United States or outside the United States, or who the consular officer, the Secretary of Homeland Security, the Secretary of State, or the Attorney General knows or has reason to believe is or has been a knowing aider, abettor, assister, conspirator, or colluder with such a trafficker in severe forms of trafficking in persons, as defined in the section 7102 of Title 22, is inadmissible. (ii) Beneficiaries of trafficking Except as provided in clause (iii), any alien who the consular officer or the Attorney General knows or has reason to believe is the spouse, son, or daughter of an alien inadmissible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity, is inadmissible. (iii) Exception for certain sons and daughters Clause (ii) shall not apply to a son or daughter who was a child at the time he or she received the benefit described in such clause. (I) Money laundering Any alien-- (i) who a consular officer or the Attorney General knows, or has reason to believe, has engaged, is engaging, or seeks to enter the United States to engage, in an offense which is described in section 1956 or 1957 of Title 18 (relating to laundering of monetary instruments); or (ii) who a consular officer or the Attorney General knows is, or has been, a knowing aider, abettor, assister, conspirator, or colluder with others in an offense which is described in such section; is inadmissible.

2 Matter of Lopez-Meza, (BIA 1999) 22 I&N Dec. 1188, 1196. (“We find that a person who drives while under the influence [commits DUI], knowing that he or she is absolutely prohibited from driving, commits a crime so base and so contrary to the currently accepted duties that persons owe to one another and to society in general that it involves moral turpitude.”)

3 See INA 237(a)(2)(B) [deportable crimes]. (“(B) Controlled substances (i) Conviction Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21) [such as DUI of drugs], other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.”)

See also INA 212(a)(2)(A)(i)(II) [inadmissible crimes]. (“(“(2) Criminal and related grounds (A) Conviction of certain crimes (i) In general Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-- . . . (II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21) [such as DUI of drugs], . . . .”).

4 Hernandez-Perez v. Holder, (8th Cir. 2009) 569 F.3d 345, 348. (“While Hernandez–Perez is correct that a “simple operating a motor vehicle while intoxicated” conviction would not qualify as a crime involving moral turpitude, the aggravating factor here is present in the child endangerment statute's requirement of a conscious disregard of a substantial risk to a child in his care.”)

5 INA 212(a)(2)(B) [inadmissible crimes]. (“(B) Multiple criminal convictions. Any alien convicted of 2 or more offenses (other than purely political offenses) [including DUI], regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more is inadmissible.”)

6 See Matter of Lopez-Meza, endnote 2, above.

7 See INA 237, endnote 1, above; INA 212, endnote 1, above.

8 INA 245, 8 U.S.C. 1255 – Adjustment of status of nonimmigrant to that of person admitted for permanent residence [can be affected by immigration consequences of a California DUI conviction]. (“(a) The status of an alien who was inspected and admitted or paroled into the United States 1/ or the status of any other alien having an approved petition for classification as a VAWA self-petitioner 1aa/ may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and(3) an immigrant visa is immediately available to him at the time his application is filed. . . . (i) (1) 2a/ Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in the United States--(A) who--(i) entered the United States without inspection; . . . (2) Upon receipt of such an application and the sum hereby required, the Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence if- (A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and(B) an immigrant visa is immediately available to the alien at the time the application is filed.”)

9 See INA 101(a)(43) – Definitions.

10 INA 237, endnote 1, above.

11 INA 212, endnote 1, above.

12 See endnote 1, above.

See also Leocal v. Ashcroft, (2004) 543 U.S. 1, 4. (“We . . . hold that petitioner's DUI conviction is not a crime of violence [and hence not a deportable aggravated felony].”)

See also Matter of Lopez-Meza, endnote 2, above, at 1194. (“We note that the only specific finding of the Immigration Judge was that “driving under the influence of intoxicating liquor” [DUI] had not been shown to be a crime involving moral turpitude. We do not disagree with the Immigration Judge in this regard. Simple DUI is ordinarily a regulatory offense that involves no culpable mental state requirement, such as intent or knowledge.”)

13 See same.

See also Lara-Cazares v. Gonzales, (9th Cir. 2005) 408 F.3d 1217, 1222. (“Because the crime for which Lara–Cazares was ordered removed [gross vehicular manslaughter while intoxicated, a form of DUI] was not a crime of violence, Lara–Cazares is not removable by reason of having committed an aggravated felony.”)

14 Matter of Lopez-Meza, at 1194, endnote 12, above.

15 See INA 101, 8 U.S.C. 1101(a)(43) – Definitions [for purposes of criminal immigration law].

xvi Chu v. Cornell, (9th Cir. 1957) 247 F.2d 929, cert. denied, (1958) 355 U.S. 892.

See also Franklin v. INS, (8th Cir. 1995) 72 F.3d 571, 573.

17 See Grageda v. INS, (9th Cir. 1993) 12 F.3d 919, 921.

18 Reyes-Morales v. Gonzales, (8th Cir. 2006) 435 F.3d 937, 945. (“[T]he BIA has expressly stated that an alien's intent is critical to a finding of moral turpitude.”)

19 McNaughton v. INS, (9th Cir. 1980) 612 F.2d 457, 459; Godinez-Arroyo v. Mukasey, (8th Cir. 2008) 540 F.3d 848, 851.

xx Matter of Lopez-Meza, endnote 2, above, at 1194. (“We note that the only specific finding of the Immigration Judge was that “driving under the influence of intoxicating liquor” [DUI] had not been shown to be a crime involving moral turpitude. We do not disagree with the Immigration Judge in this regard. Simple DUI is ordinarily a regulatory offense that involves no culpable mental state requirement, such as intent or knowledge.”)

21 Vehicle Code 23152 VC – Driving Under the Influence of Alcohol or Drugs [California's DUI law]. (“(a) It is unlawful for any person who is under the/ influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. (b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.")

22 See Reyes-Morales v. Gonzales, endnote 18, above.

23 INA 237, endnote 1, above.

24 INA §101(a)(43)—Definitions [does not include standard DUI]. ("The term "aggravated felony" means – (A) murder, rape, or sexual abuse of a minor; (B) illicit trafficking in a controlled substance (as defined in section 802 of title 21), including a drug trafficking crime (as defined in section 924(c) of title 18); (C) illicit trafficking in firearms or destructive devices (as defined in section 921 of title 18) or in explosive materials (as defined in section 841(c) of that title); (D) an offense described in section 1956 of title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property deprived from specific unlawful activity) if the amount of the funds exceeded $10,000; (E) an offense described in (i) section 842 (h) or (i) of title 18, or section 844(d), (e), (f), (g), (h), or (i) of that title (relating to explosive materials offenses); (ii) section 922 (g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924 (b) or (h) of title 18 (relating to firearms offenses); or (iii) section 5861 of title 26 (relating to firearms offenses); (F) a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment at least one year; (G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at least one year; (H) an offense described in section 875, 876, 877, or 1202 of title 18 (relating to the demand for or receipt of ransom); (I) an offense described in section 2251, 2251A, or 2252 of title 18 (relating to child pornography); (J) an offense described in section 1962 of title 18 (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed; (K) an offense that—(i) relates to the owning, controlling, managing, or supervising of a prostitution business; (ii) is described in section 2421, 2422, or 2423 of title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage; or (iii) is described in any of sections 1581–1585 or 1588–1591 of title 18 (relating to peonage, slavery, involuntary servitude, and trafficking in persons); (L) an offense described in—(i) section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage) or 2381 or 2382 (relating to treason) of title 18; (ii) section421 of title 50 (relating to protecting the identity of undercover intelligence agents); or (iii) section 421 of title 50 (relating to protecting the identity of undercover agents); (M) an offense that—(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in section7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000; (N) an offense described in paragraph (1)(A) or (2) of section 1324 (a) of this title (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual) to violate a provision of this chapter (O) an offense described in section 1325 (a) or 1326 of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph; (P) an offense -(i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of title 18 or is described in section 1546(a) of such title (relating to document fraud) and (ii) for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual) to violate a provision of this chapter; (Q) an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more; (R) an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year; (S) an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year; (T) an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years' imprisonment or more may be imposed; and (U) an attempt or conspiracy to commit an offense described in this paragraph. The term applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years. Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conviction was entered before, on, or after September 30, 1996."]

25 See same.

26 See, e.g., Vehicle Code 23536 VC – DUI penalties. Conviction of first violation of § 23152; punishment. ("(a) If a person is convicted of a first violation of Vehicle Code 23152, that person shall be punished by imprisonment in the county jail for not less than 96 hours, at least 48 hours of which shall be continuous, nor more than six months, and by a fine of not less than three hundred ninety dollars ($390), nor more than one thousand dollars ($1,000)...(c) The person's privilege to operate a motor vehicle shall be suspended by the department under paragraph (1) of subdivision (a) of Section 13352 or Section 13352.1. The court shall require the person to surrender the driver's license to the court in accordance with Section 13550.")

27 INA 101(a)(43)(F), endnote 24, above.

28 Leocal v. Ashcroft, at 4, endnote 12, above.

29 See Matter of Lopez-Meza, endnote 2, above.

30 See Vehicle Code 14601 VC – Driving when privileges suspended or revoked [may be charged along with California DUI and lead to immigration consequences]. ("(a) No person shall drive a motor vehicle at any time when that person's driving privilege is suspended or revoked for reckless driving in violation of Section 23103, 23104, or 23105, any reason listed in subdivision (a) or (c) of Section 12806 authorizing the department to refuse to issue a license, negligent or incompetent operation of a motor vehicle as prescribed in subdivision (e) of Section 12809, or negligent operation as prescribed in Section 12810.5, if the person so driving has knowledge of the suspension or revocation. Knowledge shall be conclusively presumed if mailed notice has been given by the department to the person pursuant to Section 13106. The presumption established by this subdivision is a presumption affecting the burden of proof.")

31 See Matter of Lopez-Meza, endnote 2, above.

32 See endnote 3, above.

33 Vehicle Code 23152 VC – DUI of drugs law. (“(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.”)

34 See endnote 3, above.

See also Ruiz-Vidal v. Gonzales, (9th Cir. 2007) 473 F.3d 1072, 1076. (“The plain language of this statute [the INA] requires the government to prove that the substance underlying an alien's state law conviction [for DUI of drugs] is one that is covered by Section 102 of the CSA.”)

35 See Hernandez-Perez v. Holder, endnote 4, above.

36 Vehicle Code 23572 VC—Conviction of violation of § 23152 [California DUI]; minor in vehicle; enhanced punishment. ("(a) If any person is convicted of a violation of [Vehicle Code] Section 23152 [California's DUI law] and a minor under 14 years of age was a passenger in the vehicle at the time of the offense, the court shall impose the following penalties in addition to any other penalty prescribed: (1) If the person is convicted of a violation of Section 23152 punishable under Section 23536, the punishment shall be enhanced by an imprisonment of 48 continuous hours in the county jail, whether or not probation is granted, no part of which shall be stayed. (2) If a person is convicted of a violation of [California Vehicle Code] Section 23152 punishable under Section 23540, the punishment shall be enhanced by an imprisonment of 10 days in the county jail, whether or not probation is granted, no part of which may be stayed. (3) If a person is convicted of a violation of Section 23152 punishable under Section 23546, the punishment shall be enhanced by an imprisonment of 30 days in the county jail, whether or not probation is granted, no part of which may be stayed. (4) If a person is convicted of a violation of [California Vehicle Code] Section 23152 which is punished as a misdemeanor under Section 23550, the punishment shall be enhanced by an imprisonment of 90 days in the county jail, whether or not probation is granted, no part of which may be stayed. (b) The driving of a vehicle in which a minor under 14 years of age was a passenger shall be pled and proven. (c) No punishment enhancement shall be imposed pursuant to this section if the person is also convicted of a violation of Section 273a of the Penal Code arising out of the same facts and incident.")

37 Penal Code 273a PC – Child endangerment [can be charged in connection with California DUI and lead to immigration consequences]. ("(a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years. (b) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor.")

38 See same.

39 See Hernandez-Perez v. Holder, endnote 4, above.

40 Santa Barbara DUI and immigration attorney John Murray is one of Southern California's leading experts on DUI criminal defense. He has considerable expertise in drunk driving law and a stellar track record of success at DMV hearing locations throughout southern California, including those in the City of Commerce, Covina, El Segundo, Oxnard, San Bernardino, and Van Nuys. Mr. Murray also understands the nuances of criminal immigration law and how they change the equation for DUI clients who are not U.S. citizens.

41 INA 212(a)(2)(B) [inadmissible crimes; could include multiple DUI convictions]. (“(B) Multiple criminal convictions. Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more is inadmissible.”)

42 Vehicle Code 23550 VC – DUI penalties. Multiple offenses [could lead to immigration consequences]; punishment. ("(a) If a person is convicted of a violation of Vehicle Code 23152 and the offense occurred within 10 years of three or more separate violations of Section 23103 vc, as specified in Section 23103.5 vc, or Section 23152 vc or 23153 vc, or any combination thereof, that resulted in convictions, that person shall be punished by imprisonment in the state prison, or in a county jail for not less than 180 days nor more than one year, and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1, 000). The person's privilege to operate a motor vehicle shall be revoked by the Department of Motor Vehicles pursuant to paragraph (7) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver's license to the court in accordance with Section 13550.")

43 Vehicle Code 23582 VC – Driving under the influence; addition penalty for excessive speed and reckless driving during commission of offense; additional punishment [penalties that could help lead to the immigration consequence of inadmissibility]. ("(a) Any person who drives a vehicle 30 or more miles per hour over the maximum, prima facie, or posted speed limit on a freeway, or 20 or more miles per hour over the maximum, prima facie, or posted speed limit on any other street or highway, and in a manner prohibited by Section 23103 during the commission of a violation of Section 23152 or 23153 shall, in addition to the punishment prescribed for that person upon conviction of a violation of Section 23152 or 23153, be punished by an additional and consecutive term of 60 days in the county jail.")

44 See Vehicle Code 23153 VC – DUI causing injury [could lead to immigration consequences]. (“(a) It is unlawful for any person, while under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.”)

45 INA 316(a) [naturalization requirements]. ("No person, except as otherwise provided in this title, shall be naturalized, unless such applicant, (1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his application has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship, (3) during all the periods referred to in this subsection has been and still is a person of good moral character [could be affected by a DUI conviction], attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.")

46 See same.

47 INA 316(e) [naturalization requirements]. ("In determining whether the applicant has sustained the burden of establishing good moral character and the other qualifications for citizenship specified in subsection (a) of this section, the Attorney General shall not be limited to the applicant's conduct [including any DUI convictions] during the five years preceding the filing of the application, but may take into consideration as a basis for such determination the applicant's conduct and acts at any time prior to that period.")

48 See Ragoonanan v. USCIS, (D. Minn. Dec. 18, 2007) 2007 U.S. Dist. LEXIS 92922, at *13. (“The Court finds no authority indicating that a single DWI [DUI] conviction resulting in probation operates as a statutory or regulatory bar to a naturalization applicant who seeks to establish "good moral character.")

49 Yaqub v. Gonzalez, No. 1:05-cw-170, (June 5, 2006) 2006 U.S. Dist. LEXIS 36727, at *12-13.

50 See Rico v. INS, (EDNY 2003) 262 F.Supp.2d 6, 10-11. (“Plaintiff's 1994 DWI conviction, failure to accept responsibility for his past crimes, failure to establish his claim of rehabilitation, and lack of candor, taken together, preclude a finding of good moral character in accord with current moral conventions. Plaintiff's application for naturalization is therefore denied.”)

51 Based on the facts of the same.

52Canadian Immigration and Refugee Protection Act (“IRPA”) 36 [Canadian criminal inadmissibility, including for a DUI conviction]. (“(2) A foreign national is inadmissible on grounds of criminality for . . . (b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament; . . . .”)

See also Canadian Criminal Code (“CC”) 253 [Canada's DUI law]. (“(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, (a) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or (b) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.”)

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