Published December 31, 2019

In a recent ruling, the Attorney General of the United States announced a policy that will make it more difficult for foreign nationals with 2 or more driving under the influence of alcohol convictions to defend against deportation proceedings or ever become a U.S. citizen.

The directive arose in the context of defining “good moral character” for purposes of undocumented foreign nationals fighting removal proceedings (also known as deportation proceedings) and seeking the relief of “cancellation of removal”. This defense, if successfully presented, serves to not only terminate removal proceedings but also lead to green card issuance. To qualify, the undocumented foreign national must prove : 1) 10 years of continuous presence/residence in the U.S., 2) “good moral character” for this period and 3) their removal from the U.S. will lead their U.S. citizen or lawful permanent resident spouse, parent or under 21 year old child to experience “exceptional and extremely unusual hardship”.

Typically, it’s the third prong that proves the most challenging requirement to satisfy, although for foreign nationals with criminal backgrounds, prong 2 also presents significant hurdles. Now, with the Attorney General’s recent pronouncement, individuals with 2 or more criminal convictions for DUI in the qualifying 10 year period will create a presumption that the foreign national lacks good moral character and will be ineligible for relief. Of course, the foreign national will still have the opportunity to overcome this presumption (i.e. that there are extenuation circumstances to consider) but such an effort will for certain be an extreme uphill battle.

This directive will also have ramifications for applicants for naturalization with this type of criminal background and who are looking to establish good moral character. Namely, like applicants for cancellation of removal, applicants for naturalization must fulfill a “good moral character” component, and for a specific statutory period. In general, among the requirements for naturalization, applicants must have accumulated 5 years of lawful permanent resident status, and also be of good moral character for this period. The residency component is just 3 years for lawful resident applicants who have been married to and continue to live with their U.S. citizen spouse. The Attorney General directive in this context however, will change very little since there was always little or no chance of an applicant for naturalization with 2 DUI convictions in the statutory period of ever being found of good moral character and approvable for naturalization.

When it comes to lawful permanent residents filing for citizenship, prospective applicants with criminal records are always best off conferring with experienced immigration counsel. That way not only will the applicant be in a position to assess their chances of succeeding with their application but also get a sense of whether they might be unwittingly setting themselves up to be placed in removal proceedings.

PUBLISHED December 31, 2019– “IMMIGRATION LAW FORUM” Copyright © 2019, By Law Offices of Richard Hanus, Chicago, Illinois