BIA Confirms DUI is Not a "Crime of Moral Turpitude"
Posted Jun 20, 1999

In previous editions of the Law Office of Sheela Murthy, we have explained that the Anti Terrorism and Effective Death Penalty Act (AEDPA) created the term "aggravated felony" for immigration law purposes, defining many state misdemeanors as felonies. There are various types of minor crimes that may have adverse immigration consequences for those non-citizens who are convicted and who may have lived in the U.S. for example, for 20 or 30 years and have all of their family members as U.S. citizens or permanent residents.

As some of you may be aware, much of the damage of AEDPA is a direct result of two aspects of the law: the expanded definition of "aggravated felony" and "conviction," and the retroactive application of the criminal provisions of the immigration law. The law broadened the definition of such terms as "aggravated felony," and "conviction" to capture minor, nonviolent offenses not usually considered felonies in the common sense use of the term.

A "crime of moral turpitude" (CMT) can also have severe and adverse consequences against the non-citizen. Though there are some crimes, such as murder and larceny, which are clearly considered as a CMT, for certain other crimes the discretion is with an Immigration Judge to decide whether a crime can be classified as a CMT. Generally that determination turns upon the intent requirement of a crime. The usual elements of a crime are a particular action along with a particular state of mind. For example, in order for a killing to be considered murder (in most states) the defendant must have intended to kill or to cause severe bodily harm to the victim. If the killing was accidental, it is generally considered manslaughter in most states.

There are also some crimes which do not have an intent requirement. For example, as defined in most State laws, DWI (driving while intoxicated) and DUI (driving under the influence) mean that a person was driving with a certain blood level of alcohol or other intoxicating substance above that legally permissible under law. There is usually no reference to intent. (It is necessary to look at the actual wording of the statute to see how the crime is defined.)

Generally, in order to be a CMT, a crime must have an intent requirement. A person who did not intend to steal or kill cannot be found to be as morally reprehensible as someone who committed a crime with the specific intent to do bodily harm. Yet the Board of Immigration Appeals (BIA) found in an unpublished case decided in 1998 that DWI was a CMT based on the fact that the person was using a weapon (the automobile) which is capable of doing great bodily harm.

In a triumph of logic, on May 10, 1999 the BIA reversed itself, reopening the case on its own motion. The new decision provides that DWI, as defined in the Texas law, is a "regulatory offense," and does not require any criminal or depraved intent. Therefore it is not a CMT. This decision of the BIA makes logical sense and is consistent with most state criminal laws.