Written by attorney Juan Paolo Pasia Sarmiento

DUIs and its Impact on Green Card and Citizenship Applications

How can a simple Driving Under the Influence (“DUI") conviction affect my green card application? How can it influence my naturalization or citizenship application? What if I have two DUIs? What if the specific state statute for my DUI conviction has an intent requirement? What if the crime of having two or more DUIs based on my state’s laws has a sentence of over 365 days?

A Crime Involving Moral Turpitude (“CIMT") is a crime category that makes applicants inadmissible from getting a green card. Whether a DUI would prevent one from obtaining a green card depends on whether it is deemed a CIMT. Generally, a crime would involve moral turpitude if it has an intent requirement. In most state laws, DUIs mean that a person is driving with a blood alcohol level above a certain state maximum, that’s it, with no intent requirement. Thus, most simple DUIs in state laws are not considered a CIMT. So a conviction of a simple DUI that is not considered a CIMT would still likely enable you to get a green card. Note though that some could be convicted of a higher degree DUI which could have an intent requirement. For example, aggravated DUIs are considered CIMTs which would hurt your green card application.

Aggravated felonies is another category of crimes that subject foreigners to inadmissibility and deportation. This would not only prevent you from obtaining a green card and citizenship, it would also get you to deportation proceedings. Some state laws penalize a second or third DUI with a sentence of over 365 days. Criminal convictions with a sentence of over 365 days are deemed aggravated felonies. Thus, one may have committed an aggravated felony for having multiple DUIs. It is crucial to check the specific state laws on how they categorize multiple DUI convictions. That will determine whether the alien has an aggravated felony or not, thereby determining whether he or she is still eligible for a green card, citizenship, or be subject to deportation.

It is important to note that when someone gets convicted of a DUI, no matter how minor the penalty or statute seems to be, that person is fingerprinted and photographed. The information is saved to a database that the government will have access to when that person applies for any future immigration benefit. Thus, all applicants for green cards or citizenship should be truthful in their applications. So many applicants with certain criminal records would have been able to adjust status or naturalize despite their criminal record, but because they lied and misrepresented, their cases got denied.

Before one becomes a naturalized citizen, the green card holder must satisfy the five-year good moral character requirement. There is no straight-line rule on what satisfies good moral character. Immigration officers evaluate this on a case-by-case basis. They look at your criminal arrests and convictions, when they occurred, and how bad they are.

A DUI conviction that is not a CIMT, committed over the last five years, does not usually affect the good moral character requirement for citizenship, though it still may be questioned and cause a denial if combined with other minor transgressions. If there was one DUI that happened early in the five-year statutory period, one could argue that the lack of any violation after the DUI indicates character reform, which may lead the officer to find good moral character and approve the case.

Having two DUIs is another story. If you have two or more DUIs in the statutory period, it is best to wait five years from the last arrest before you apply for citizenship. The worse situation though is when two or three DUIs at your state requires over a 365-day sentence. As explained earlier, since that becomes an aggravated felony, not only would your citizenship application be denied, you also would be subject to deportation. Assuming the crime of having two DUIs is not an aggravated felony, if you had a DUI before the five-year statutory period and another one during the statutory period, the immigration officer still has the discretion to look beyond the five-year period and can still find a lack of good moral character. An applicant should argue that the first one was before the five-year period. If the particular officer still exercises his discretion and denies the case, then it’s best to wait five years from the latest arrest before filing another citizenship application.

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