How driving while intoxicated convictions affect immigration cases has been confusing and uncertain for quite some time.

Jersey City, New Jersey – How driving while intoxicated convictions affect immigration cases has been confusing and uncertain for quite some time. It remains so today, and likely for the foreseeable future. However, one small area of the law was recently addressed by the Third Circuit Court of Appeals.

On September 3, 2020, the court decided the petition for review of Roberto Luna-Reyes, a non-citizen who applied for cancellation of removal for non-permanent residents before the immigration court and who had been convicted of DWI three times in the State of New Jersey. In New Jersey, DWI is not a criminal charge; it is a motor vehicle violation. His punishment for his third conviction included the mandatory 180 days in jail under New Jersey law.

In order to be successful in an application for cancellation of removal, a person must demonstrate s/he is a person of good moral character for the 10 years immediately preceding the immigration judge’s decision. The Immigration and Nationality Act specifically states that a person who has been confined to a penal institution for 180 days or more during the statutory period does not have good moral character and cannot be approved for cancellation of removal.

Luna-Reyes applied for cancellation of removal before the immigration judge. He was denied because of the 180 days in jail. The Board of Immigration Appeals dismissed his appeal and he petitioned the Third Circuit for review.

The Third Circuit considered whether the DWI conviction entered in a “genuine criminal proceeding.” How New Jersey categorized the offense was irrelevant; what mattered was how the case was prosecuted and what rights the defendant had in court. The factors considered were whether proof of guilt beyond a reasonable doubt was required, the consequences of the finding of guilt, the rights available to the accused and other characteristics of the state court proceeding.

The Third Circuit concluded DWI proceedings in New Jersey are genuine criminal proceedings because New Jersey courts require proof beyond a reasonable doubt, because the punishment for DWI conviction is more punitive than rehabilitative, because DWI convictions may never be expunged and may be considered by courts in the event the defendant commits a new criminal offense, and because DWI defendants have many of the same rights as criminal defendants including appellate rights, the right to trial under the rules of evidence, the right to remain silent, the right to confrontation, the right to discovery and the right to double jeopardy protection.

While the Luna-Reyes decision is unpublished, meaning it is not binding upon lower courts, its analysis is highly persuasive and likely to be considered and followed by lower courts. The impact of the decision may be quite broad as the analysis will apply to other offenses heard in the New Jersey municipal courts such as simple assault, shoplifting, theft, criminal mischief and other offenses for which convictions may carry serious immigration consequences.

It is notable that one of the three judges dissented, meaning disagreed, with the other two judges. The dissenting judge concluded a New Jersey DWI conviction should not be considered a conviction because New Jersey does not consider DWI to be criminal and this is the first factor that should be considered, because the penalties for DWI are intended to be rehabilitative rather than punitive, because not all protections of a criminal prosecution, and because an accused person retains the presumption of innocence even after an adjudication of DWI in the municipal court,  unlike in the criminal court where the once a person is found guilty they are presumed guilty through appeal.

The facts there is a dissent and the case is unpublished leaves the door open to arguing in lower courts that the dissent is correct. It is a difficult argument and will require extensive briefing for anyone making the argument, but for any person with such a questionable conviction, it is necessary to make the argument.

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