AG Creates Presumption of a Lack Good Moral Character for 2 DUIs

The Attorney General has determined that a person with two DUI convictions during the good moral character period presumptively lacks good moral character and is ineligible for cancellation of removal for non-lawful permanent residents.

“There could be an unusual case in which an alien can establish that the multiple convictions were an aberration and can show good moral character. To do so, the respondent must overcome the strong evidence attributable to those multiple convictions by establishing good moral character. See 8 C.F.R. § 1240.8(d). But a respondent may not make this showing merely by demonstrating that he reformed himself after those convictions by, for instance, addressing a problem with substance abuse. The statute requires that good moral character be shown over the continuous period of not less than 10 years immediately preceding’ the application. INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1). The alien thus must show that he had good moral character even during the period within which he committed the DUI offenses. An alien’s efforts to reform or rehabilitate himself after multiple DUI convictions are commendable, but they do not themselves demonstrate good moral character during the period that includes the convictions. Absent substantial relevant and credible contrary evidence, multiple DUI convictions require that the immigration judge deny cancellation of removal.”

The full text of Matter of Castillo-Perez can be found here:

https://www.justice.gov/eoir/page/file/1213196/download

BIA Addresses DUIs in the Context of Bond Proceedings

The Board of Immigration Appeals (BIA) has determined that driving under the influence is a significant adverse factor in bond proceedings.  Furthermore, family and community ties generally do not mitigate a bond applicant’s dangerousness.  The BIA did acknowledge that "there may be a situation where a family member’s or other’s influence over a young respondent’s conduct could affect the likelihood that he would engage in future dangerous activity."

The full text of Matter of Siniauskas can be found here: 

https://www.justice.gov/eoir/page/file/1030706/download

Ninth Circuit Addresses DUI Crimes and the Treatment of Transgender Individuals in Mexico

Edin Avendano-Hernandez was repeatedly beaten, sexually assaulted, and verbally abused by relatives and police officers because she is a transgender woman.  While in the United States, she was twice convicted of DUI-related offenses, including one DUI involving bodily injury.  The Ninth Circuit affirmed the agency's determination that this conviction was a particularly serious crime, noting that DUI crimes are inherently dangerous, and that Avendano-Hernandez inflicted injuries (albeit relatively minor ones) on the driver of another car.  The Ninth Circuit did note that it was improper to characterize an additional sentence imposed for a probation violation as a sentencing enhancement, but found that the agency's error on this point was harmless.  

Turning to Avendano-Hernandez's application for protection under the Convention Against Torture, the Ninth Circuit disagreed with the agency's finding that she failed to show that the Mexican government would more likely than not consent to or acquiescence in her torture. The court noted that Avendano-Hernandez had already been raped by government officials, and that rape was itself a form of torture.  Thus, because she had already been tortured by government officials, she need not make any of government acquiescence to torture by private individuals.  Turning to the issue of future torture, the Ninth Circuit chastised the agency for conflating laws that protect the gay and lesbian community with government protection of the transgender community.  "While the relationship between gender identity and sexual orientation is complex, and sometimes overlapping, the two identities are distinct."  Given that Mexico has one of the highest transgender murder rates in the world, the Ninth Circuit determined that Avendano-Hernandez was entitled to protection under the Convention Against Torture.

The full text of Avendano-Hernandez v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/03/13-73744.pdf