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Attorney General Releases Two Decisions Limiting Eligibility for Immigration Relief based on Criminal History

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Last Friday, on October 25, 2019, the U.S. Attorney General William Barr decided two cases that could have a significant impact on an individual’s eligibility for certain types of immigration relief. Both cases pertain to an individual’s criminal history and its impact on his or her ability to remain in the United States.

In Matter of Castillo-Perez, the Attorney General held that an individual with two or more convictions for driving under the influence, or “DUI,” in the relevant period would essentially be unable to demonstrate Good Moral Character.

Good Moral Character is an eligibility requirement for certain types of immigration applications, including naturalization, voluntary departure, and cancellation of removal for individuals in removal/deportation proceedings. In order to receive an approval, an individual must show that he possessed Good Moral Character for a certain period of time. For example, the relevant Good Moral Character period for cancellation of removal is the 10 years preceding the date that he files the application with the court.

The Attorney General’s decision implies that even individuals with positive equities – including demonstrated rehabilitation and a clean criminal record for many years – will not be able to overcome two or more DUI convictions within the relevant period.

The practical effect of this decision is that individuals with two or more DUI convictions will become ineligible for many forms of relief previously available to them.

In Matter of Thomas and Thompson, the Attorney General modified the effect that a state court order can have for immigration purposes. An individual convicted of a crime in state court may later discover that this conviction carries negative consequences for his immigration status and/or ability to apply for an immigration benefit. The individual might then seek post-conviction relief with the state court to modify the criminal conviction or sentence to avoid these consequences.

The Attorney General’s decision limits the circumstances under which a state court order modifying a criminal conviction or sentence might negate the immigration consequences of that case. Going forward, if a state court order vacates a conviction for reasons “unrelated to the merits,” such as the individual’s rehabilitation or hardship to his family, the order will have no effect for immigration purposes. Instead, a state court order will only correct negative immigration consequences when it is based on a procedural or substantive defect in the underlying criminal proceeding.

You can access the Attorney General’s full decisions here:

Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019)

Matter of Thomas and Thompson, 27 I&N Dec. 674 (A.G. 2019)

If you have questions about these decisions and their potential impact on your case, please contact Kolko & Casey, P.C. at (303) 371-1822 to schedule a consultation with an experienced immigration attorney.

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Kolko & Casey, P.C. is a full service immigration and naturalization law firm providing professional legal services to individuals and businesses throughout Colorado, the Rocky Mountain West, the United States, and the World. Our professional staff speaks English, Spanish, Korean, and Portuguese and we can arrange for translators in any other language.