Multiple DUIs & Crimes of Moral Turpitude May Make You Inadmissible to the US
The 212(a)(2) Criminal Grounds of Inadmissibility, unless waived, could permanently bar immigration to America. Whether or not a ground is waivable depends on if the foreign national is applying for a non-immigrant versus an immigrant visa and, for certain hardship waivers, whether there is a qualifying relative. Crimes involving moral turpitude (CIMT) and conviction of multiple offenses are the major non-drug related grounds used to deny immigration benefits to foreign nationals.
Crime Involving Moral Turpitude
A person who has been convicted of, or who admits to having committed the essential elements of, a crime involving moral turpitude (CIMT) is inadmissible to the United States. Unfortunately, there is no exhaustive list of crimes that could potentially be classified by immigration officials as a CIMT. It’s one of those "we’ll know it when we see it" situations.
Some courts have attempted to give guidance to immigration practitioners by defining moral turpitude as something base, vile and depraved or where the actor has evil intent or a corrupt mind. A CIMT is contrary to the widely-accepted rules of morality and duties owed between persons or to society itself. The Board of Immigration Appeals (BIA) has held that crimes involve moral turpitude where is it malum in se (bad in itself) or intrinsically wrong, as opposed to malum prohibita, which is wrong simply because a statute prohibits it.
Although not an absolute requirement, may CIMTs usually share the actor’s intent as one of the essential elements. For instance, fraud, some theft and other crimes against property such as shoplifting (where there is an intent to permanently deprive property), and some crimes of violence (murder, voluntary manslaughter, rape, statutory rape, prostitution, and possession or child pornography) are generally understood to trigger a CIMT admissibility bar. Involuntary manslaughter is usually not a CIMT, unless accompanied by reckless disregard. Simple assault is usually not a CIMT, but an assault that requires criminal recklessness is if there is serious bodily injury involved. Also, where the assault resulted in physical injury to a spouse or child, certain courts have upheld CIMT findings. Assault with a deadly weapon or aggravated assault are, typically, crimes involving moral turpitude. Possession of stolen property, where knowledge that it was stolen is not an element, is not a CIMT. Other examples of crimes involving moral turpitude include arson, embezzlement, bribery, counterfeiting, mail fraud, and perjury.
Driving Under the Influence (DUI) and Inadmissibility
A simple charge of DUI or DWI (driving under the influence or driving while intoxicated) is likely not a CIMT as these crimes do not typically require intent. However, some courts have upheld application of the CIMT ground of inadmissibility for multiple DUI’s, where the DUI was accompanied by another behavior that did have the required intent or disregard for the safety of others, or where there serious bodily injury resulted. For instance, a DUI conviction where the driver was also driving on a suspended license could be a CIMT; this charge could be considered an aggravated DUI or felony DUI. See Matter of Lopez-Meza (BIA held that a conviction under Arizona law for aggravated DUI – driving under the influence of drugs or alcohol while knowingly under a suspended, canceled, revoked or restricted licenses- was a CIMT).
For a crime to involve moral turpitude, one must look not to the conduct of the actor but rather to the elements of the offense. An immigration practitioner must examine the statue(s) under which the client has been convicted and prepare arguments as to why the crime should be not seen as involving moral turpitude, especially in those cases where intent or depravity are absent or are at issue. Further, a person can be inadmissible for a CIMT by simply admitting to an immigration officer that they committed the essential elements of the crime.
There are some limited exceptions to the CIMT ground of inadmissibility under section 212(a)(2). First, a child who is charged with a crime involving moral turpitude and is kept in the juvenile system will not have a CIMT for immigration purposes. Also, those who have committed a crime involving moral turpitude while under eighteen years of age and were released from prison at least five years prior to applying for the immigration benefit sought will not be inadmissible. Finally, each individual is allowed one "petty offense" exception with regard to crimes involving moral turpitude. To qualify, the maximum possible sentence under the state or federal charging statute must have been one year or less and the actual sentence imposed (regardless of time served) must have been no more than six months.
Most applicants who are found inadmissible due to a CIMT may be eligible for a waiver of this ground of inadmissiblity.
Two or More Convictions
Applicants for admission to the United States can also trigger one of the grounds of inadmissibility if he or she has more than one criminal conviction, the combined sentences of which were confinement for five or more years. See, INA 212(a)(2)(B). Unlike for crimes involving moral turpitude, 212(a)(2)(B) inadmissibility requires at least two actual convictions, however the crimes can have been committed during the same criminal scheme. Simply admitting to having satisfied the elements of the crime is not enough to bar admission under this provision.
Most applicants who are found inadmissible due to two or more crimes may be eligible for a waiver of this ground of inadmissiblity.
Millie Anne Cavanaugh, Esq. is a Los Angeles immigration lawyer and former insurance defense attorney. She is licensed to practice law in California and Massachusetts. The information contained herein is provided for informational purposes only, and should not be construed as a solicitation for your business or as legal advice on any subject matter. You should not act or refrain from acting on the basis of this information without seeking independent legal advice.