Driving while intoxicated.

 

Matter of Reyes-Torres, File No. A91-406-680, 20 Immigr. Rep. B1-108 (BIA 1999) (Texas conviction for driving while intoxicated does not constitute a CMT).

 

Driving Under the Influence.  A simple DUI does not constitute a crime involving moral turpitude. In Matter of Torres-Varela,[163] the BIA held that aggravated “driving under the influence” (DUI) under an Arizona statute, defined as a third conviction for simple DUI, is not a CMT.  It affirmed an immigration judge’s decision to grant adjustment of status to an LPR who had been convicted of the offense.  Writing for the majority, Boardmember Osuna distinguished Matter of Lopez-Meza,[164] which held a different Arizona offense (driving under the influence with the knowledge that one’s license had been suspended or revoked) to be a crime of moral turpitude. The majority noted that unlike the offense in Lopez-Meza, the instant offense had no knowledge or intent requirement of any kind.  The majority also reaffirmed the principle that “nonturpitudinous conduct is not rendered turpitudinous through multiple convictions for the same offense.”[165]  Thus if the first simple DUI is not a CMT, then the third simple DUI, containing the same elements, is not a CMT either.

 

The majority briefly discussed the availability of an INA § 212(h), 8 U.S.C. § 1182(h) waiver when a crime involving moral turpitude is also an aggravated felony.  The case history is not clear, but the IJ appears to have held that the offense was not a CMT, but also to have granted a 212(h) waiver of inadmissibility for a CMT.  The Board held that granting the 212(h) waiver was an error (although harmless) because under 1996 amendments, 212(h) relief is not available to a person who first became a permanent resident and then was convicted of a CMT that is also an aggravated felony.  Footnote 3 does not discuss the issue, but advocates should note that two federal district courts have refused to impose this 212(h) restriction on LPRs because it violates equal protection.[166]  This was not a close case, with 13 Board members on the majority plus Rosenberg’s concurrence.

 

Boardmember Heilman dissented on the grounds that drunk driving is “wrong” and creates human tragedy.  Four other boardmembers dissented on the grounds that “knowledge” similar to that required in the aggravated DUI offense in Lopez-Meza should be held to be an element of this offense.  They also referred to their statements in prior BIA crime of violence cases that DUI should be seen as an inherently reckless act.  The majority and especially Boardmember Rosenberg countered that the BIA cannot imply additional elements to an offense in determining moral turpitude.

 

            On the other hand, it held a DUI offense committed while the defendant was “absolutely prohibited” from driving does violate the accepted norms of society sufficiently to constitute a crime involving moral turpitude.[167]  After quoting the classic definition of moral turpitude, the BIA stated that while crimes involving moral turpitude often involve an evil intent, specific intent is not a prerequisite to finding a crime involves moral turpitude.  “While it is generally the case that a crime that is ‘malum in se’ involves moral turpitude and that a ‘malum prohibitum’ offense does not, this categorization is more a general rule than an absolute standard.”[168]  The Board reaffirmed the rule that “[i]n determining whether a crime involves moral turpitude, the specific statute under which the conviction occurred is controlling. . . .  Thus, whether a particular crime involves moral turpitude ‘is determined by the statutory definition or by the nature of the crime, not by the specific conduct that resulted in the conviction.”[169]  The crime must be one that necessarily involves moral turpitude without consideration of the circumstances under which the crime was, in fact, committed.[170]

 

            The BIA agreed that “[S]imple DUI is ordinarily a regulatory offense that involves no culpable mental state requirement, such as intent or knowledge.”[171]  “We find that the offense of driving under the influence under Arizona law, does not, without more, reflect conduct that is necessarily morally reprehensible or that indicates such a level of depravity or baseness that it involves moral turpitude.”[172] 

 

            DUI on a suspended license.  The BIA noted that a conviction of aggravated DUI under Arizona law may involve two separate forms of aggravating misconduct:

 

A person may be found guilty of aggravated DUI by committing a DUI offense while knowingly driving on a suspended, canceled, or revoked license or by committing a DUI offense while already on a restricted license owing to a prior DUI.  We find that the serious misconduct described in either of these statutes involves a baseness so contrary to accepted moral standards that it rises to the level of a crime involving moral turpitude.  A contrary conclusion is not mandated by the absence of a specific element of intent in the statutes because the aggravated circumstances necessary for a conviction under either section establish a culpable mental state adequate to support a finding of moral turpitude.[173]

 

            The Board found that the statutory elements required a showing that the offender “knew or should have known that his license was suspended.”[174]  Since the holding in this case represents a drastic expansion of the scope of crimes involving moral turpitude, encompassing many thousands of immigrants, it should be strictly construed. 

 

            Although the Ninth Circuit initially agreed with or deferred to this analysis, it has since vacated the panel decision and granting rehearing en banc.[175]  The now-vacated Ninth Circuit panel decision found that “[d]riving while intoxicated is despicable, and when coupled with the knowledge that one has been specifically foribidden to drive, it becomes [a CMT].”[176]  The court noted that DUI on a suspended license “is not a mere combination of two simple and independent regulatory offenses,” but is one “innately reprehensible act involving two criminal offenses perpetrated at the same time with one willful and recklessly indifferent mental state.”[177]  A strong dissent in this case argued, inter alia, that neither DUI nor driving on a suspended license would individually be considered crimes of moral turpitude, and that two non-CMT offenses cannot be added together to create a CMT.[178] 

 

            If the statutory elements of the particular DUI statute do not require that the offender “knew or should have known that his license was suspended,” the offense should not be held to be a CMT.  The rules limiting consideration to the record of conviction preclude resort to any other source of information, including the records of completely separate criminal cases such as misdemeanor cases involving driving on a suspended license.

[163] Matter of Torres-Varela, 23 I. & N. Dec. 78 (BIA 2001) (en banc).

[164] Matter of Lopez-Meza, 22 I. & N. Dec. 1188 (BIA 1999).

[165] Torres-Varela, at 86.

[166] Song v. INS, 82 F.Supp.2d 1121 (C.D. Cal. 2000); Jankowski v. INS, 2001 WL 76341 (D.Conn. 2001).  See also Catten v. INS, 178 F.3d 110 (3d Cir. 1999), citing Song with approval.

[167] Matter of Lopez-Meza, 22 I. & N. Dec. 1188 (BIA Dec. 21, 1999) (“aggravated” driving under the influence convictions, under Arizona state law, constitute convictions of crimes involving moral turpitude since the statutory elements require that the driver know s/he is prohibited from driving under any circumstances).

[168] Id. at 1193.

[169] McNaughton v. INS, 612 F.2d 457, 459 (9th Cir. 1980).

[170] Matter of Lopez-Meza, 22 I. & N. Dec., at 1193-1194. See Goldeshtein v. INS, 8 F.3d 645, 647 (9th Cir. 1993).

[171] Id. at 1194.

[172] Ibid.

[173] Id. at 1195 (emphasis supplied).

[174] Ibid.

[175] Marmolejo-Campos v. Gonzales, 503 F.3d 922 (9th Cir. Sep 12, 2007) (Arizona conviction for violation of A.R.S. § 28-1383(A)(1), driving under the influence with knowledge that defendant did not have valid license to drive, is a crime involving moral turpitude for immigration purposes), rehearing en banc granted by, 519 F.3d 907 (9th Cir. Mar 14, 2008).  See also Hernandez-Martinez v. Ashcroft, 343 F.3d 1075 (9th Cir. 2003) (Arizona conviction under former ARS § 28-697A is "divisible" in that the offense can be committed by either driving on a suspended license while under the influence of alcohol [a crime of moral turpitude], or by merely being in actual physical control of a vehicle [not a crime of moral turpitude]).

[176] Id. at 926.

[177] Id. at 928.

[178] Id. at 929, citing Matter of Short, 20 I. & N. Dec. 136 (BIA 1989).

Ninth Circuit

CRIME OF MORAL TURPITUDE - DRIVING UNDER THE INFLUENCE WHILE KNOWING LICENSE HAS BEEN SUSPENDED IS A CMT
Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc) (Arizona conviction of driving under the influence while knowing that that one had a suspended license, in violation of Arizona Revised Statutes 28-1383(A)(1),constitutes a crime of moral turpitude for immigration purposes), deferring to Matter of Lopez-Meza, 22 I. & N. Dec. 1188 (BIA 1999).