In re Torres-Varela
| Decision Date | 09 May 2001 |
| Docket Number | File A29 242 698.,Interim Decision Number 3449 |
| Citation | 23 I&N Dec. 78 |
| Parties | In re Fernando Alfonso TORRES-VARELA, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
BEFORE: Board En Banc: DUNNE, Vice Chairman; SCHMIDT, HOLMES, HURWITZ, VILLAGELIU, FILPPU, GUENDELSBERGER, MATHON, MOSCATO, MILLER, BRENNAN, ESPENOZA, and OSUNA, Board Members. Concurring Opinion: ROSENBERG, Board Member. Dissenting Opinions: HEILMAN, Board Member; COLE, Board Member, joined by SCIALABBA, Acting Chairman; JONES and GRANT, Board Members.1
OSUNA, Board Member:
In a decision dated February 23, 2000, an Immigration Judge found the respondent to be removable as an alien convicted of an aggravated felony under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. V 1999). However, he granted the respondent's applications for a waiver under section 212(h) of the Act, 8 U.S.C. § 1182(h) (Supp. V 1999), and for adjustment of status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (1994). The Immigration and Naturalization Service appealed the Immigration Judge's decision. The issue raised by the Service is whether the respondent's conviction for aggravated driving under the influence ("DUI") in violation of Arizona law is a crime involving moral turpitude. We find that it is not. The Service's appeal will be dismissed.
The respondent is a native and citizen of Mexico who adjusted his status to that of a lawful permanent resident on February 1, 1993. On January 31, 1995, the respondent was convicted of three counts of DUI, for offenses committed from September to November 1994. On March 27, 1998, the respondent was convicted of aggravated DUI with two or more prior DUI convictions, in violation of sections 28-692(A)(1) and 28-697(A)(2), (D), (F), (H)(1), (I), and (J) of the Arizona Revised Statutes, and he was sentenced to a term of imprisonment of 1½ years.2
On March 2, 1999, the Service issued a Notice to Appear (Form I-862) charging the respondent with removability under section 237(a)(2)(A)(iii) of the Act for having been convicted of an aggravated felony pursuant to section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F) (Supp. V 1999). Specifically, the Service charged that the respondent's aggravated DUI offense constituted a "crime of violence" as defined in section 101(a)(43)(F).
Before the Immigration Judge, the respondent conceded the charge of removability set forth in the Notice to Appear. However, he requested an opportunity to file an application for adjustment of status, because he was the beneficiary of an approved Petition for Alien Relative (Form I-130) filed by his United States citizen wife. The Service moved to pretermit the adjustment application, arguing that the respondent's conviction for aggravated DUI with two or more prior DUI convictions constituted a conviction for a crime involving moral turpitude under section 212(a)(2)(A)(i)(I) of the Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (Supp. V 1999), rendering the respondent inadmissible to the United States and ineligible for adjustment of status. The Service relied on our holding in Matter of Lopez-Meza, Interim Decision 3423 (BIA 1999), that a conviction for aggravated DUI after the defendant's license had been suspended or revoked was a conviction for a crime involving moral turpitude.
The Immigration Judge disagreed with the Service, distinguished Matter of Lopez-Meza, supra, and found that the respondent's conviction for aggravated DUI was not a conviction for a crime involving moral turpitude. The Immigration Judge granted the respondent's request for a waiver under section 212(h) of the Act and granted his application for adjustment of status. The Service's appeal followed.
Although the Immigration Judge found that the respondent's conviction for aggravated DUI under sections 28-692(A)(1) and 28-697(A)(2) of the Arizona Revised Statutes renders him removable as charged, as an alien convicted of an aggravated felony, that issue is not before us on appeal. Accordingly, we will only consider here whether the respondent's conviction is for a crime involving moral turpitude.
The respondent applied for adjustment of status based on an approved visa petition filed on his behalf by his wife. An alien's status may be adjusted to that of a lawful permanent resident under section 245(a) of the Act if: (1) the alien makes an application for such adjustment; (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and (3) an immigrant visa is immediately available to the alien at the time his or her application is filed. Section 245(a) of the Act. In the proceedings below, the respondent submitted an application for adjustment of status and, pursuant to the approved immediate relative visa petition, has an immigrant visa immediately available to him. The Immigration Judge found that the respondent met the requirements for adjustment of status and granted his application for such relief.3
The Service does not contest on appeal that the respondent has met two of the requirements for adjustment of status, in that he has submitted an application for relief and has demonstrated that an immigrant visa is immediately available to him. The more difficult issue is whether the respondent is admissible to the United States as an immigrant. In essence, we must decide whether the respondent's DUI conviction is for a crime involving moral turpitude, which would render him inadmissible. We note that the respondent's conviction for an aggravated felony does not, by itself, render him inadmissible to the United States. A conviction for an aggravated felony constitutes a ground of removability, but not a ground of inadmissibility. Compare section 212(a) of the Act with section 237(a) of the Act. We also note that the Service, other than asserting that the respondent is inadmissible as an alien convicted of a crime involving moral turpitude, did not challenge his eligibility for adjustment of status as a matter of fact or law, or in the exercise of discretion, either during the hearing below or on appeal. Therefore, the sole remaining issue on appeal in determining whether the respondent was properly granted adjustment of status is whether he is eligible to receive an immigrant visa and is admissible to the United States for permanent residence.
A. Relevant State Statutes
The respondent was convicted under section 28-692(A)(1) and sections 28-697(A)(2), (D), (F), (H)(1), (I), and (J) of the Arizona Revised Statutes. The first three statutory sections provide as follows:
§ 28-692. Driving or in actual physical control while under the influence of intoxicating liquor or drugs; violation; classification; definition
A. It is unlawful for any person to drive or be in actual physical control of any vehicle within this state under any of the following circumstances:
1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree.
§ 28-697. Aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs; violation; classification; penalties; notice; definition
. . . .
2. Commits a third or subsequent violation of § 28-692 or this section or is convicted of a violation of § 28-692 or this section and has previously been convicted of any combination of convictions of § 28-692 or this section or acts in another state, a court of the United States or a tribal court which if committed in this state would be a violation of § 28-692 or this section within a period of sixty months . . . .
. . . .
D. Aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs committed under:
1. Subsection A, paragraph 1 or 2 of this section is a class 4 felony.
Ariz. Rev. Stat. Ann. §§ 28-692(A)(1), 28-697(A)(2), (D) (1997).
In addition, section 28-697(F) of the Arizona Revised Statutes provides that an individual convicted under section 28-697(A)(2) is not eligible for probation, pardon, commutation, or suspension of sentence, or release until the person has served at least 4 months in prison. Section 28-697(H)(1) mandates alcohol and drug screening and education, or treatment, for persons convicted and allows the court to order additional sanctions against individuals who fail to comply. Section 28-697(I) states that the time an individual spends in custody pursuant to subsections (E), (F), (G), or (H) shall not be counted toward the sentence imposed if probation is revoked and the person is sentenced to prison following revocation of probation. Finally, section 28-697(J) mandates that the court order the surrender of the person's driver's license and the revocation of his or her driving privileges for 3 years.
In arguing that the respondent's aggravated DUI conviction is for a crime involving moral turpitude, the Service relies on our decision in Matter of Lopez-Meza, supra. The Immigration Judge considered this case and determined that it was not controlling, because the alien in Lopez-Meza was convicted of aggravated DUI under section 28-697(A)(1) of the Arizona Revised Statutes,...
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