BIA: Arizona Aggravated DUI Not a Crime of Moral Turpitude (Matter of Torres-Varela)

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

BIA: ARIZONA AGGRAVATED DUI NOT A CRIME OF MORAL TURPITUDE (MATTER OF TORRES-VARELA)
Immigrants' Rights Update, Vol. 15, No. 4, June 29, 2001

In an en banc decision, the Board of Immigration Appeals has ruled that an Arizona conviction for aggravated driving under the influence ("DUI"), where the conviction qualifies as "aggravated" under state law because of two or more prior DUI convictions, is not a crime involving moral turpitude. In reaching this decision, the BIA distinguished Matter of Lopez-Meza, Int. Dec. 3423 (BIA 1999), which found that an aggravated DUI conviction after the defendant's license was suspended or revoked does constitute a crime of moral turpitude.

This case came to the BIA on appeal from an immigration judge's decision granting the respondent adjustment of status. Ruling on the appeal, the BIA first noted that the sole issue on appeal was whether the respondent is inadmissible for a crime of moral turpitude. Although under BIA precedent the crime would be considered an aggravated felony as a crime of violence, that is irrelevant in this context, since there is no ground of inadmissibility for aggravated felony convictions.

Noting that "neither the seriousness of a criminal offense nor the severity of the sentence imposed is determinative of whether a crime involves moral turpitude," the BIA examined the specific language of the statute to determine whether a violation must necessarily involve moral turpitude, "without consideration of the circumstances under which the crime was, in fact, committed." The BIA found that under Arizona Revised Statute 28-697(A)(2), a violation occurs if the defendant commits a third or subsequent DUI offense. There is no knowledge requirement for a violation of this provision, unlike section 28-697(A)(1), which was at issue in Lopez-Meza. The fact that the conviction in Lopez-Meza required a showing that the defendant knew at the time of committing the offense that he was not permitted to drive at all was the "aggravating factor" that rendered the conviction a crime of moral turpitude. Since no such showing is required for a conviction under the statute at issue in this case, the BIA concluded that it does not constitute a crime of moral turpitude.

BIA member Lory Rosenberg wrote a concurring opinion to explain the interpretive principles that the BIA uses in determining whether statutes involve moral turpitude. Members Michael Heilman and Patricia Cole wrote dissenting opinions, with the latter joined by members Scialabba, Jones, and Grant.

Matter of Torres-Varela, 23 I. & N. Dec. 78 (BIA 2001).