inside immigration information about marriage green cards and work visas in America
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by Danielle Nelisse, Senior Immigration Attorney
Thinking about applying for USA citizenship, but have a DUI (driving under the influence) or DWI (driving while intoxicated) on your record?
In many states it is still possible to become a U.S. citizen even though you have had one (or sometimes two) convictions for drunk driving in your past. One of the requirements for U.S. citizenship is that a person be of “good moral character.” If a person is convicted of certain crimes (no matter how long ago), they can be considered to be a person of bad moral character.
Some citizenship applicants are legitimately more worried about their previous DUI conviction than passing the citizenship test. However, convictions for simple DUI offenses in most states are generally not considered to show bad moral character because the driver did not intend to drive drunk.
Each of the 50 states in America has drunk driving laws that are written differently. In general, if the words “reckless” or “had knowledge” or “malicious” or “evil intent” are written in the drunk driving law of a state, the DUI conviction might cause citizenship to be denied. Also, if the state law has words written in it that prohibit driving drunk while a person’s driver’s license was suspended, it would be clear that the person knew they were not supposed to be driving and that would be bad moral character.
In order to research this issue, you would look at your DUI/DWI conviction paperwork and determine the number of the state law that the judge decided that you violated. It might be the number of a “vehicle code” or “penal code” or “criminal code.” Then, you would find the state law on the internet and print out a copy of the state law the judge said you violated to see if the words above are contained in the law (most are available for free online). This is a confusing and difficult analysis and most people seek the help of an American immigration attorney to help them. After all, if the analysis is wrong, the fees for the citizenship are wasted and a citizenship denial is on record.
As defined in most state laws, DUI and DWI means that a person was driving with a certain blood level of alcohol or other intoxicating substance above an amount that is legally permissible under that state’s law. As stated above, it is necessary to look at the actual wording of each state’s DUI or DWI statute to see what words were used to define the crime in that particular state.
Take the state of California’s drunk driving law for an example. California Vehicle Code section 23152 (a) is a simple driving under the influence law (for a situation where no child was endangered). Conviction of California Vehicle Code section 23152 (a) requires that the driver was under the influence of an intoxicating substance and does not require that the person was reckless or malicious or had evil intent (reckless driving on its own doesn’t count).
As the California state law is written, there is no mention of whether the driver’s license was suspended, canceled, revoked, refused or restricted as a result of a prior DUI. Therefore, in California, having a DUI conviction does not prevent a person from obtaining U.S. citizenship (of course there can be no allegations of alcholohism in the court documents, which would be a separate ground for denying citizenship).
It is true that driving under the influence carries the risk of automobile accidents. But laws against drunk driving are intended to prevent damage to the driver and others. Many drunk driving arrests occur at a sobriety checkpoint or in other non-accident situations. By its nature, simple drunk driving is usually not considered a crime of violence (a crime of violence is an offense where intentional physical force is used against another person). When someone uses physical force against another person by pushing or hitting him, it is clear it is not an accident and that it was intentional.
When someone drives under the influence there is usually no intent to use physical force to hurt someone. The U.S. Supreme Court held unanimously in 2004 that simple driving under the influence offenses are not considered crimes of violence and therefore applicants for citizenship with a DUI on their record should be considered a person of good moral character for the purposes of determining citizenship status. The U.S. Supreme Court can change their mind about that 2004 decision at any time, and each state’s law could be changed at any time, so it is wise for the immigration attorney to get an update on the laws before filing the application for citizenship.
Being on Probation is the Problem, Not the DUI Conviction
Having the DUI does not usually prohibit USA citizenship, unless there was bodily injury to someone else. However, being on probation does prohibit a grant of citizenship.
Applicants who apply for citizenship (called “naturalization”) may still be on probation for the DUI when they file the N-400 Naturalization application. Being on probation (for anything) is considered bad moral character so they cannot still be on probation at the time of their citizenship interview, which in many parts of the United States takes place 4 to 6 months after filing the application. In many states a person can ask a criminal court judge to terminate their probation early so that they are off probation by the time of their citizenship interview. Some criminal court judges will say “yes” and others will not.
Many people with a DUI or DWI in their background may wish to hire an American Immigration Attorney who has experience with citizenship and DUI convictions to represent them in their citizenship case to have the best possible chance of being approved. The Immigration Attorney examines the police report, the court documents,the exact language of the state statute, the wording of the plea bargain (or conviction if the case went to trial) and the sentencing documents before the N400 citizenship application is submitted to see whether the person is eligible for citizenship.
Certain documents concerning the DUI conviction should be submitted with the citizenship application, but others should not — and the Immigration Attorney knows which documents to submit.
In addition, people with a DUI or DWI may wish to hire an American Immigration Attorney to go with them to the citizenship interview, as the interviewing Officer will be asking many intense questions about good moral character in general for the previous five years because of the drunk driving conviction. The Officer can also take into account any of the person’s behavior prior to the five years if it is relevent to the person’s current moral conduct.
The naturalization applicant should admit responsibility for the DUI conviction and be ready to explain verbally and through documents (like completion of classes and/or volunteer work, involvement in the church etc.) that he is not a habitual drunk and that he has changed his life for the better. In general, if an immigration lawyer is present at the citizenship interview, there will be less questions asked about the DUI incident itself.
Do I Have to Be Off Probation For 5 Years?
For over 10 years the USCIS has been approving citizenship cases when the applicant can prove they are off of probation, and they do not require that the applicant be off of probation for 5 years.
The reason may appear in the regulations at 8 C.F.R. section 316.10(c); note the differences between this good moral character “extenuating circumstance” and the other preclusions to establishing good moral character under 8 C.F.R. section 316.10(b).
It seems that the justification for prohibiting approval of naturalization for someone who is still on probation is not that the person lacks good moral character as a result of being on probation. Rather, it seems that the justification for prohibiting approval of naturalization for someone who is still on probation is that the person is subject to further prosecution on the underlying criminal DUI matter—prosecution that might lead to him or her becoming deportable—if there were to be a violation of probation.
Thus, the USCIS does not want to naturalize someone one day only to find out that the very next week the person violated their probation and would be subject to deportation were he still only a permanent resident. In other words, so long as the applicant is off of their DUI probation even for only one week, the USCIS officers seem willing to approve citizenship.
Arrested for DUI after Filing the N400?
Sometimes, unfortunately, an arrest for DUI occurs after the N400 Application for Naturalization is filed. In that case, when you are at the citizenship interview and the immigration officers asks if you’ve ever been arrested or detained you are obligated to say “yes” and tell him or her about the DUI arrest.
In my experience, the immigration officer usually delays your N400 case until the DUI court problem is resolved. If you are found guilty for a DUI you will usually be put on 2-4 years of “probation.” Once that happens, the officer has no choice but to deny your citizenship because you are on probation. However, if the DUI is dismissed, the officer can grant citizenship (given there are no other problems).
If you don’t think your DUI charge will be dismissed, you may choose to formally withdraw your N400 Application, either by sending a letter (send it “certified” to verify they got it) to the USCIS, or by submitting a withdrawal letter in person at the citizenship interview. There is no special format for the letter, but the immigration officer may also have you sign one of their withdrawal forms. If you withdraw your N400, there will be no denial of citizenship on your record.
However, if you withdraw your N400 you won’t get the government fees that you paid back. If asked why you are withdrawing, it is ok to say that your are withdrawing your application because of a DUI arrest (this is a common reason) – the USCIS will find out about your DUI arrest anyway when you apply for citizenship later after you are off of probation, or when you apply to renew your green card, because each of those applications require fingerprinting.
In most states, it is possible to prove that a citizenship applicant has good moral character even with a DUI or DWI in their background so long as the applicant is off of probation, so long as the citizenship application is carefully prepared, and the citizenship interview goes well.
HOT TIP: VACATIONING TO CANADA? Canada regards DUI / DWI as an extremely serious offense. Persons from any country with DUI/DWI convictions in their history (no matter how long ago) are not usually allowed to enter Canada.
Call Attorney Danielle Nelisse at (619) 235-8811 in San Diego, California if you want to discuss legal representation for naturalization case. There is no charge for a brief telephone call or email questions. However, please keep in mind that I cannot tell you whether your DUI will be excused without seeing your court paperwork, which I charge to review.
When you call the office, just ask to speak to Danielle Nelisse.
Email email@example.com or call (619) 235-8811 or (877) 884-6644 to ask about legal representation in your case at no charge.