Immigration Consequences of a DUI Conviction


Most non-U.S. citizens convicted of a single California DUI will face no adverse immigration consequences. But under certain circumstances, driving under the influence becomes a “deportable” crime.1 Or it may make someone “inadmissible” to the United States.2

DUI crimes that can subject a non-citizen to deportation and/or inadmissibility include:

But keep in mind that the above reflects the current state of federal immigration law. Every once in a while someone in the U.S. Congress introduces a bill to make driving under the influence a deportable offense.

So far these bills have failed. But Congress might in the future pass a bill that increases the immigration consequences of a drunk driving conviction.

What if the person arrested for DUI is in the U.S. unlawfully?

An undocumented immigrant who is arrested for driving under the influence faces possible deportation -- not for the DUI, but for being present unlawfully.

The only sure way for an undocumented alien to protect him- or herself is to not drink and drive in the first place.

For more information on DUI and unlawful presence, please see Section 9 below. You may also wish to read our blog post “Should an undocumented immigrant get a driver's license in California?”

In order to help you better understand the immigration consequences of a driving under the influence conviction, our California DUI defense lawyers discuss the following, below:

happy teen with car keys california dui immigration legal defense
Lawful immigrants to the United States will usually face no adverse consequences from a California DUI conviction

1. An introduction to immigration law

The federal Immigration and Nationality Act (usually referred to as the “INA”) governs U.S. immigration law. Under the INA, some criminal convictions can lead to “deportation” and/or “inadmissibility.”6

If a crime makes a non-citizen deportable, he or she may be removed (deported) from the country.

If a crime makes an immigrant inadmissible, the immigrant may not:

1.1. “Deportable” crimes

There are numerous categories of crimes that can get someone “removed” (deported) from the United States. These include:

Crimes of moral turpitude

The legal definition of moral turpitude is vague. This makes it the most problematic category for determining whether a DUI can lead to deportation.12

But, in general, a CIMT is one that involves:

  • Dishonesty,
  • Fraud, or
  • Antisocial behavior that harms others.13

Typical examples are "crimes of violence" and California fraud crimes.

Aggravated felonies

An aggravated felony is any crime designated as such by the United States Congress. It does not necessarily have to be a felony under California law.

Some 30 crimes as currently designated as aggravated felonies. These include violent felonies such as murder, rape and kidnapping.14

But they also include many seemingly low-level California drug crimes and white collar crimes.

However, at least at present, driving under the influence is not classified as an aggravated felony.15

Drug offenses

A conviction relating to a drug on the federal list of controlled substances is a deportable offense.16 But because federal and California law define drug crimes differently, this is a particularly complicated area of immigration law.

We will not discuss this subject in depth here. Just know that because of this distinction, using a conviction for DUI of drugs ("DUID"), California Vehicle Code 23152(f) as a basis for removal is open to challenge. But an immigrant might still have to fight removal in immigration court. So it is usually best to avoid a conviction for DUID in the first place.

California smoking drugs dui immigration legal defense
Driving with drugs in the car can lead to the deportation or inadmissibility of immigrants in California.

DUID with prior convictions

Another potential problem with a DUID is that an arrest might trigger further investigation. This can be a problem even if the person is not convicted of drugged driving offense. This is because it is illegal for someone to drive in California at all if he or she is addicted to any drug.17

So if there is drug paraphernalia in the vehicle--or if the defendant has prior DUID convictions that make drug use seem like a habitual problem--an immigrant could face difficulties.

An immigrant who is arrested for DUID of drugs should immediately contact an experienced California DUI lawyer who is familiar with immigration law.

Knowing child neglect

Driving under the influence with a child in the car is sometimes charged as “child endangerment,” California Penal Code 273a.18 As a result, an immigrant who is convicted of this offense may face removal (deportation) proceedings.

Merely placing a child in danger negligently is not grounds for deportation.19 But knowingly putting a child in danger is a ground for removal (deportation) under the Immigration and Nationality Act.20

This is another technical and complex area that can easily lead to problems unless the immigrant's DUI defense lawyer has experience with California immigration law.

We discuss this issue in more detail in Section 6, below.

california dui immigration help children crying we can help
An immigrant who drives under the influence with a child in the car may face immigration consequences in California.

1.2. Inadmissible crimes

Inadmissible crimes are those which keep a person from being able to enter the U.S. lawfully or to become a U.S. citizen or green-card holder. Such crimes include:

  • Any crime involving moral turpitude (“CIMT”) committed within five (5) years of entry into the United States,21
  • Most drug crimes,22
  • Any two (2) or more crimes for which the defendant's total prison sentences add up to five (5) years or more,23 and/or
  • Any crime(s) that demonstrate a lack of “good moral character.”24

It is possible for a crime to fit into more than one category. This can make it difficult for non-citizens to determine whether a particular charge can lead to deportation and/or inadmissibility.

Lawyers must advise clients of immigration consequences

California criminal lawyers must, by law, advise their clients who are non-citizens of the potential immigration consequences of:

  • A plea of guilty or nolo contendere (no contest) to a crime, or
  • Any proposed plea bargain the immigrant is considering.

If a defendant is not advised of such consequences he or she can bring a Padilla motion to set aside the conviction.

alcohol, keys, and cuffs - stay safe california - dui immigration legal defense
One or two convictions for ordinary DUI does not usually cause negative immigration consequences for legal immigrants in California.

2. Ordinary DUI convictions and immigration law

Most convictions for driving under the influence of alcohol do not have negative immigration consequences (at least at present). DUI is usually charged as a misdemeanor and is not considered a CIMT or an aggravated felony.25

Courts have repeatedly held that simply driving under the influence – by itself – is not grounds for removal (deportation).26

Common charges that do not usually have immigration consequences include:

The only way that one of these charges would be likely to trigger immigration consequences would be if:

  1. The defendant was convicted of another crime based on the same incident or had a prior criminal record, and
  2. The total sentences handed down for all the defendant's crimes added up to more than five (5) years.28

3. DUIs as crimes involving moral turpitude

The INA does not define “crime of moral turpitude.”29 Nevertheless, it is settled law that an ordinary (simple) DUI is not a CIMT. 30

Courts have relied on the interpretation of “CIMT” used adopted by the federal Board of Immigration Appeals (“BIA”). The BIA defines moral turpitude as "conduct that shocks the public conscience."31

This includes conduct that is:

  • Inherently base, vile, or depraved, and
  • Not acceptable for persons living in a society.32

3.1. Specific intent is a required element of a CIMT

In deciding whether a crime is a CIMT, courts will look first to the criminal statute defining the crime. To be a CIMT, a crime must usually be one that requires a defendant to have a specific intent to commit the crime.33 Mere criminal negligence is insufficient.

This is why a simple drunk driving conviction is not a crime of moral turpitude. Under California law, no specific mental state must be proved for a DUI conviction. The only “elements” of the crime that must be proved are:

  1. That the defendant drove a vehicle, and
  2. That the defendant was under the influence of alcohol or drugs at the time.34

In other words, the prosecutor doesn't need to show that the defendant intended to drive drunk. He/she does not need to prove that the defendant intended to violate a traffic law or injure anyone.

Example: Francisco is from Guatemala and is in the U.S. on a student visa. One New Year's Eve, he is pulled over and arrested for DUI.

The only facts that the prosecutor must prove are that Francisco was driving and that he was under the influence of alcohol at the time. Francisco pleads “no-contest,” which involves admitting that both of those facts are true.

Francisco has not admitted that he had any kind of criminal intent or state of mind. So his drunk driving conviction is not a crime of moral turpitude that would make him inadmissible.

serious bike accident caused by possible drunk driver legal defense california
A California DUI conviction may affect immigration status if it leads to an accident in which someone else is seriously injured or killed.

3.2 Is DUI a crime involving moral turpitude if another person is injured?

Historically, DUI causing injury or death was not a crime involving moral turpitude. This is because in order for a crime to be a CIMT, the statute defining that crime must set forth specific criminal intent. In the past, this required that a crime be committed either "willfully" (on purpose) or "knowingly," meaning either that:

  • The defendant intended the result the statute was meant to punish, or
  • The defendant knew his actions would achieve that result.35

Example: California's “robbery” law, Penal Code 211, defines “robbery” as taking personal property from someone, against his or her will, through the use of force or fear.

This a crime of moral turpitude because robbery requires a willful action and otherwise qualifies as a CIMT. 36

But in a case known as Matter of Franklin, the Board of Immigration Appeals held that criminal recklessness was enough to make an offense a CIMT.37

This is worrisome for immigrants. The Administrative Appeals Office (“AAO”)38 has already suggested that this holding applies to gross vehicular manslaughter while intoxicated, California Penal Code 191.5 – at least for purposes of an application for a waiver of inadmissibility. 39

Their reasoning is that:

  1. A PC 191.5 violation requires “gross negligence,” and
  2. The California Supreme Court's definition of “gross negligence” mirrors the definition of “recklessness” in the statute at issue in the Franklin case.40

It is not known whether the Board of Immigration Appeals (“BIA”)41 or a federal court would follow this reasoning in a removal (deportation) case.

But it is a matter of concern for California immigration and criminal defense attorneys.

3.3. Is DUI a crime involving moral turpitude if someone is killed?

Drunk driving is usually not a crime of moral turpitude even if another person is killed as a result. There must be a specific intent to commit a crime or achieve a certain result for a crime to be a CIMT.

As discussed in Section 3.2., above, following the Franklin decision, there is concern that this may be changing in cases of gross vehicular manslaughter while intoxicated.

Exception: DUI murder (a/k/a “Watson” murder)

One type of DUI that counts as a crime involving moral turpitude is DUI murder (also known as “Watson” murder). Watson murder can be charged when a defendant who drives drunk or drugged acted with “implied malice” (also known as “malice aforethought”).

Someone acts with implied malice when:

  1. He or she intentionally commits an act (in this case driving under the influence);
  2. The natural and probable consequences of the act are dangerous to human life;
  3. At the time the defendant acts he or she knows the act is dangerous to human life; and
  4. The defendant deliberately acts with conscious disregard for human life.42

Murder is both an aggravated felony and a CIMT. So someone who is convicted is both deportable and inadmissible.

4. Most DUI convictions are not aggravated felonies

California DUIs are not generally considered aggravated felonies. To be an aggravated felony, a crime must be defined as such in the INA.43 But the current list does not include driving under the influence.

And the United States Supreme Court has held that driving under influence is ordinarily not a “crime of violence." Crimes of violence constitute one category of offense that often counts as an aggravated felony.44 So unless the defendant is convicted of "Watson" murder, drunk driving is not a crime of violence--even if it causes injury or death.45

It is possible that in the future Congress may add DUI causing injury or death to the definition of “aggravated felony.” But for now, most driving under the influence crimes are not on this list.

5. Immigration consequences of a DUI of drugs (DUID) conviction in California

While a simple California DUI involving alcohol often has no immigration consequences, DUI of drugs is not so simple. Under U.S. immigration law, people convicted of drug crimes are both deportable and inadmissible.46

Under California law, DUID often involves an illegal substance. And when it does, a conviction for DUID can subject someone to a removal action.

But... California and federal drug laws have different definitions of controlled substances. For highly technical reasons, this often means that someone convicted under California drug laws cannot successfully be deported, even if the substance is on the federal list. (A federal drug conviction is different).

However, an immigrant may still have to fight the issue in immigration court. So rather than fight DUID charges in criminal court and risk a conviction, immigrants may prefer to plead guilty or no contest to a crime with fewer immigration consequences.

Example: Isabella is an immigrant from Italy who lives in the U.S. on a green card. One day she is pulled over for running a stop sign. The officer notices that Isabella is slurring her words and has “pinprick” pupils – possible symptoms of being high on opioids.

After Isabella performs poorly on field sobriety tests, she is arrested for driving under the influence. Because the officer suspects drug use, he requires Isabella to take a DUI blood test.

The test comes up positive for heroin. Isabella immediately contacts a California DUI defense lawyer who is knowledgeable about immigration issues.

Even though Isabella was not speeding, her lawyer negotiates “exhibition of speed” as a DUI plea bargain. Isabella pays a fine and does not go to jail. More importantly, she does not face any negative immigration consequences.

attorney helping client with dui immigration issues in california
A plea bargain to “exhibition of speed”, California Vehicle Code 23109(c), can often protect an alien from the negative immigration consequences of a DUI.

6. Driving under the influence with a child in the car

There may be adverse immigration consequences when someone drives under the influence with a child in the car. DUI with a child in the vehicle can result in a conviction for “child endangerment” under California Penal Code 273a.47

As discussed above, California convictions for driving under the influence do not normally lead to immigration consequences. This is true even if the immigrant gets hit with enhanced penalties under Vehicle Code 23572, DUI with a child under 14 in the car.48

But sometimes the prosecutor charges PC 273a child endangerment instead of—or in addition to—those enhanced penalties.

Is child endangerment a crime of moral turpitude?

Unlike DUI, California's child endangerment law can potentially be a CIMT. This is because one prong of the statute punishes someone who knowingly puts a child in danger.49

Knowingly putting a child in danger is a ground for removal (deportation) under the Immigration and Nationality Act.50

But there is another prong of PC 273a that punishes a defendant who places a child “in a situation where his or her person or health may be endangered” (emphasis added).51 This is negligent child endangerment, which is not grounds for deportation.52

Most California immigration lawyers will argue that no charges under PC 273a should ever be grounds for deportation. But it is not safe to assume that an overworked immigration law judge will understand these highly technical arguments.

According to Santa Bernardino DUI and immigration attorney John Murray53:

“A regular DUI won't make an immigrant deportable or inadmissible--even with enhanced penalties for having a child under 14 in the car.

But a separate child endangerment conviction can lead to a tough fight about whether the offense was a crime of moral turpitude. Not all immigration judges understand the complex nuances of the law in this area. So I fight very hard to prevent a child endangerment conviction in the first place.”

7. Immigration consequences of multiple DUI convictions

Some repeat DUI offenders will be inadmissible to the United States even when they have been convicted only of ordinary DUIs. It all depends on the amount of total jail time to which the immigrant was sentenced for all crimes he or she has committed.

An immigrant is inadmissible if:

  1. He or she has been convicted of any two (2) or more crimes (including one or more DUI offenses), and
  2. The total sentences for all crimes equal or exceed five (5) years. 54

Felony DUI is a particular concern

The five-year period for multiple convictions is especially likely to affect people convicted of California felony DUI based on prior convictions.

This is because a fourth DUI conviction within a ten-year period is a felony that can be punished by as much as three (3) years in jail. When combined with sentences for the prior DUI convictions (as well as any other crimes the defendant has committed) that might push someone over the five-year limit.55

Example: Tommy, a non-citizen, is convicted of drunk driving four times within a space of ten years. For his first conviction, he receives a fine and probation. But his second involves the aggravating factor of driving at excessive speeds.56 He is sentenced to six months in jail. His third conviction is for felony DUI causing injury, and he is sentenced to 18 months in jail.57

By his fourth conviction, the judge is inclined to be extremely harsh with him. The judge sentences him to the three (3) years. This brings Tommy's total to exactly five (5) years.

Now that Tommy has been convicted of more than 2 offenses with aggregate sentences of at least five (5) years, he is inadmissible. He is unable to leave the country and re-enter or to become a U.S. citizen.

consult with an attorney dui immigratoin california
Non-U.S. citizens should immediately consult with a lawyer if they are charged with felony DUI in California.

8. Effect of driving under the influence on a “good moral character” determination

Certain changes in status require immigrants to demonstrate “good moral character.” For instance, good moral character must be shown by immigrants who wish to:

Usually having one or even two ordinary DUI convictions will not negatively affect this determination.

But multiple convictions could lead the government to conclude that the applicant is a “habitual drunkard.” Under U.S. immigration law, a “habitual drunkard” is not considered to be of good moral character.60

Note that “habitual drunkard” is not the same as being an alcoholic. Alcoholism does not, of itself, preclude a finding of good moral character. It is a person's conduct during the relevant time period that counts.

Example: Miguel, an alcoholic, has lived unlawfully in the U.S. for twenty years. He is a member of Alcoholics Anonymous and has been to California DUI school several times. Still, he is a hardworking and respected member of the community.

Miguel gets caught up in a sweep at work and is served a notice of removal (deportation) for unlawful presence. Miguel then petitions the immigration court for cancellation of removal.

Unfortunately, Miguel has five drunk driving convictions on his record. These represent conduct that shows that Miguel cannot control his alcoholism. This makes him a “habitual drunkard” for immigration law purposes. The IJ therefore denies the petition because under federal law, Miguel is not of good moral character.61

group counseling dui immigration california
Being an alcoholic does not make an immigrant inadmissible to the United States.

9. DUI by those unlawfully present

Even though a DUI conviction is not a cause for deportation, it might flag an immigrant's unlawful presence. But this is not always the case.

California is a so-called “sanctuary state.” This means that California law enforcement agencies will not contact U.S. Immigration and Customs Enforcement (“ICE”) when someone:

  • Uses an AB 60 license to identify him- or herself to state or local law enforcement, or
  • When a state or local law enforcement officer arrests someone for a low-level crime (such as simple DUI).62

But arrests and convictions are public records. So if ICE is already looking for a specific name, an arrest may help ICE locate that person.63

And older drunk driving convictions may already be known by ICE. According to the National Immigration Law Center, in 2017 ICE agents frequently detained undocumented immigrants who had DUI convictions that were many years old. Those people then faced deportation for unlawful presence.64

How can an undocumented alien avoid deportation for a DUI arrest or conviction?

Unfortunately, the only way an illegal immigrant can truly protect him- or herself against deportation for a DUI is to not drink or use drugs and drive.

Immigrants who are arrested for drunk or drugged driving or who already have a DUI arrest or conviction on their record should contact an experienced California DUI attorney to discuss their options.

10. Entering Canada after a drunk or drugged driving conviction

Both U.S. citizens and non-citizens are inadmissible to Canada after any conviction.65

We recommend that immigrants contact an experienced California DUI lawyer before attempting to enter Canada with a DUI on their record.

Call us for help…

california dui immigration attorneys standing by to help
Call us for help

If you or loved one is an immigrant who has been convicted of or charged with DUI we invite you to contact us for a free consultation.

Call us at 855-LAWFIRM or fill out the form on this page to speak to an experienced California DUI and immigration lawyer near you.

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.

We also have offices in Las Vegas and Reno that handle the criminal defense of immigrants in Nevada.

LEGAL REFERENCES:

  1. See Immigration & Nationality Act (“INA”) 237, codified at 8 United States Code (“USC”) 1227. INA 237 (a)(2) lists the crimes that can make a non-citizen deportable. Driving under the influence is not one of them.

  2. See INA 212(a)(2), 8 USC 1182(a)(2). This section lists categories of crimes that make a non-citizen “inadmissible.” For reasons we discuss in this article, driving under the influence does not usually fall within any of them.

  3. INA 237(a)(2)(B)(ii), 8 USC 1227(a)(2)(B)(ii): “Any alien who is, or at any time after admission has been, a drug abuser or addict is deportable.”

    See also 8 U.S. Code 1101 (f): “For the purposes of this chapter—No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established is, or was—(1) a habitual drunkard…”

  4. INA 237(a)(2)(E)(i), 8 USC 1227(a)(2)(E)(i).

  5. INA 212(a)(2) (B): “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.”

  6. See INA 237(a)(2) and INA 212(a)(2).

  7. See INA 245, 8 USC 1255.

  8. INA 237(a)(2)(A)(i), 8 USC 1227(a)(2)(A)(i): “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 245(j)) 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.”

  9. See INA 101(a)(43), 8 USC 1101 (a)(43) for the definition of “aggravated felony.” See also INA 237(a)(2)(B)(i), 8 USC § 1227(a)(2)(B)(iii): “Any alien who is convicted of an aggravated felony at any time after admission is deportable.”

  10. See INA 237(a)(2)(B)(i), 8 USC 1227(a)(2)(B)(i). “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 102 of the Controlled Substances Act (21 USC 802)), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.”

    See also INA 237(a)(2)(B)(ii), endnote 3.

  11. INA 237(a)(2)(E)(i).

  12. See, e.g., Nunez v. Holder (2010) 594 F.3d 1124, 1124 ("Once again we face the question of what is moral turpitude [for purposes of criminal immigration law]: a nebulous question that we are required to answer on the basis of judicially established categories of criminal conduct. ")

  13. See, e.g., Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1074-75 (9th Cir.2007) (en banc) (Reinhardt, J., concurring for the majority). (“Generally, crimes are deemed to be offenses of moral turpitude if they are base, vile, or depraved — if they offend society's most fundamental values, or shock society's conscience.”).

  14. The full list of aggravated felonies is set forth in 101(a)(43), codified at 8 U.S. Code 1101(a)(43).

  15. Same. See also Leocal v. Ashcroft, 543 U.S. 1 (2004) (holding driving under the influence involving criminal negligence or strict liability is not an aggravated felony as crime of violence under 18 USC § 16).

  16. 26 8 USC 1182(a)(2)(B)(i), 1227(a)(2)(B)(i).

  17. Vehicle Code 23152(c): “It is unlawful for a person who is addicted to the use of any drug to drive a vehicle. This subdivision shall not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code.”

  18. Penal Code 273a: “(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.”

  19. Fregozo v. Holder, 576 F.3d 1030 (9th Cir. 2009).

  20. INA 237(a)(2)(E)(i). See also Matter of Mendoza-Osorio, 26 I&N Dec. 703, 710 (BIA 2016).

  21. INA 212(a)(2) (A)(i): “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… is inadmissible.”

  22. INA 212(a)(2) (A)(i): “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 102 of the Controlled Substances Act (21 USC 802)), is inadmissible.”

  23. INA 212(a)(2) (B), endnote 5.

  24. INA 316(a): “No person, except as otherwise provided in this title, shall be naturalized, unless such applicant… has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.”

  25. See Matter of Abreu-Semino, 12 I&N Dec. 775, 777 (BIA 1968) (holding that “crimes in which evil intent is not

    an element, no matter how serious the act or harmful the consequences, do not involve moral turpitude”).

  26. Same.

  27. Same.

  28. INA 212(a)(2) (B), endnote 5.

  29. Abreu-Semino, endnote 25.

  30. See Matter of Torres-Varela 23 I&N Dec. 78 (BIA 2001) (Citing, among others, Matter of L-V-C-, 22 I&N Dec. 594 (BIA 1999); Matter of Tran, 21 I&N Dec. 291 (BIA 1996); Matter of Danesh, 19 I&N Dec. 669 (BIA 1988).

  31. Torres-Varela, endnote 30.

  32. See cases cited in Torres-Varela, endnote 30.

  33. Under current Ninth Circuit law, upheld by the BIA, recklessness is generally not considered the specific intent that would make a California “wet reckless” conviction a “crime of violence” under 18 USC 16. See Fernandez-Ruiz v. Gonzales, 410 F.3d 585 (9th Cir. 2005). A conviction of a “crime of violence” (as defined by 18 USC 16) is an

    aggravated felony if a sentence of a year or more is imposed. See INA101(a)(43)(F), 8 USC 1101(a)(43)(F).

    But see Matter of Franklin, 20 I&N Dec. 867 (BIA 1994), discussed in Section 3.2 of this article.

  34. Vehicle Code 23152 VC: “(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."

  35. See, e.g., Matter of Lopez-Meza, (BIA 1999) 22 I&N Dec. 1188.

  36. See People v. Stewart, (1985) 171 Cal.App.3d 59, 66. (“[I]t is beyond dispute that robbery necessarily involves moral turpitude…”).

  37. Matter of Franklin, endnote 33.

  38. The AAO is an office within United States Citizenship and Immigration Services (USCIS). Most people who want to appeal an adverse USCIS decision must submit a petition to the AAO.

  39. See the redacted AAO determination letter linked to here.

  40. Same. See also People v. Bennett (1991) 54 Cal.3d 1032.

  41. The Board of Immigration Appeals (BIA) is the highest administrative body for interpreting and applying United States immigration laws.

  42. See California Penal Code 188 PC.

  43. INA 101(a)(43)

  44. A “crime of violence” is any offense that has as an element the use, attempted use, or threatened use of physical force against the person or prop­erty of another. See 18 USC 16(a). Note that there is an alternative definition of “crime of violence” set forth in 18 USC 16(b), but that provision was recently held by the U.S. Supreme Court to be unconstitutionally vague. See Sessions v. Dimaya, April 17, 2018.

  45. Leocal v. Ashcroft, endnote 15.

  46. INA 237(a)(2)(B)(i); INA 212(a)(2)(A)(i)(II).

  47. Penal Code 273a: “(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.”

  48. See Vehicle Code 23572 VC.

  49. Penal Code 273a(a), endnote 46.

  50. INA 237(a)(2)(E)(i). See also Matter of Mendoza-Osorio, 26 I&N Dec. 703, 710 (BIA 2016).

  51. See Penal Code 273a(b), endnote 46.

  52. See Fregozo v. Holder, 576 F.3d 1030 (9th Cir. 2009).

  53. San Bernardino DUI and immigration attorney John Murray is one of Southern California's leading experts on DUI criminal defense. He defends clients in criminal cases throughout southern California as well as at all southern California DMV hearing locations.

  54. INA 212(a)(2)(B), endnote 5.

  55. Vehicle Code 23550(a) VC .

  56. Vehicle Code 23582(a) VC: “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.”.

  57. See Vehicle Code 23153 VC.

  58. See INA 316(a) (requirement of “good moral character”). The Attorney General can review the person's conduct from all time periods (not just the five years residence needed to apply).

  59. 8 USC 1229b(b)(1).

  60. 8 U.S. Code 1101 (f), endnote 3.

  61. See Ledezma-Cosino v. Sessions (9th Cir. 2017) No. 12-73289.

  62. See California Government Code 7282.5, which lists crimes for which California local and state law enforcement officials may contact ICE. Driving under the influence is not one of them.

  63. A DUI arrest is reported to the California DMV. It is unknown to what extent ICE has access to California DMV databases. So even though the California DMV does not make immigration status public, if ICE is already searching for a name, the DMV's records may help ICE locate the individual. See National Immigration Law Center, “How U.S. Immigration & Customs Enforcement and State Motor Vehicle Departments Share Information,” May 2016.

  64. See same.

  65. Canadian Immigration and Refugee Protection Act (“IRPA”) 36 (2).

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