Decided October 25, 2019
To establish eligibility for cancellation of removal for non-permanent residents under the Immigration and Nationality Act as a defense to deportation the immigrant must show good moral character for a period of ten years, which is calculated backward from the date on which the application is finally resolved by the Immigration Judge or the Board of Immigration Appeals. This decision of the Attorney General holds that two or more convictions for driving under the influence during the relevant period establishes a presumption that an immigrant lacks the required good moral character.
What is particularly damning for affected immigrants is that the Attorney General’s decision seems to indicate that no amount of reformation or rehabilitation will be sufficient to overcome the presumption.  At page 671, the Attorney General states that the immigrant cannot overcome this presumption by simply showing that he “reformed himself after those convictions.”  So the decision appears to hold that the immigrant must have committed at least one of the DUIs because of some abnormality in behavior at the time of offense, e.g., the immigrant recently received a new prescription and was not used to the medication, the immigrant was drugged involuntarily, or the immigrant had something serious happen, like a death in the family, that caused the immigrant to drink when he was a teetotaler.

This opinion uses the term “DUI” to mean all state and federal impaired-driving offenses, including “driving while intoxicated,” “operating under the influence,” and the like, that make it unlawful for an individual to operate a motor vehicle while impaired. This term does not include lesser included offenses, such as negligent driving, that do not require proof of impairment. Although DUIs are the offenses at issue here, nothing in this opinion prevents immigration judges or the Board of Immigration Appeals from taking into account other convictions, such as negligent driving, in determining whether to grant cancellation of removal.

As the Attorney General points out at page 670, “Even setting good moral character aside, an alien with multiple DUI convictions would likely be denied cancellation of removal as a purely discretionary matter.”   But this case may be the nail in the coffin for many.
At least two courts have held that whether the good moral requirement has been met is a question not subject to judicial review.  Lopez-Castellanos v. Gonzales, 437 F.3d 848 (9th Cir. Feb. 16, 2006) (court lacks jurisdiction to review IJ determination that respondent lacked good moral character required to be eligible for relief); Cuellar Lopez v. Gonzales, 427 F.3d 492 (7th Cir. Oct. 26, 2005).  Another has held that it is.  Jean v. Gonzales, 435 F.3d 475 (4th Cir. Jan. 27, 2006) (determination of whether non-LPR has good moral character for purposes of cancellation of removal is a non-discretionary factor subject to judicial review).