The respondent in this case, a Mr. Lopez-Meza, is a Mexican national who has lived in the United States since shortly after his birth 24 years ago.  He became a lawful permanent resident in 1989 through the legalization provisions of the Immigration Reform and Control Act of 1986 (IRCA).  On June 19, 1998, he was convicted of two aggravated DUI offenses under Arizona law.  The two convictions were based on separate incidents that occurred on Jan. 24, 1997, and Mar. 1, 1998.  He received a sentence of four months’ incarceration for each offense, to be served concurrently, followed by five years’ probation.  The INS then initiated removal proceedings.

Since Lopez-Meza was not sentenced to a term of imprisonment of one year or more, the Immigration and Naturalization Service could not charge him with being removable as an aggravated felon.  Instead, the INS charged that he was removable for having been convicted of two crimes of moral turpitude not arising from the same scheme of misconduct.  No record or other documents regarding the conviction were submitted at the removal hearing, but the respondent admitted the convictions, while disputing that they constituted crimes of moral turpitude.  The immigration judge agreed, ruling that the convictions do not constitute crimes of moral turpitude, and concluded that the INS failed to establish that "driving under the influence of intoxicating liquor is, in fact, a crime involving base or vile conduct or moral turpitude as classically defined."  The INS appealed this decision to the BIA.

On appeal, the BIA concluded that simple DUI is not a crime of moral turpitude, since it is a regulatory offense that does not require a showing of intent.  However, the BIA pointed out, the Arizona offense of aggravated DUI does require evidence of specific intent.  A conviction requires a showing that the defendant drove while under the influence at a time when the defendant knew that he or she was either prohibited from driving or was on a restricted license due to a prior DUI offense.  Citing "accepted rules of contemporary morality," the BIA concluded that when an individual in such circumstances commits a DUI, the offense amounts to a crime of moral turpitude.  Accordingly, the BIA remanded the case to the IJ to determine whether Lopez-Meza qualifies for any relief from removal.

Board member Lory Rosenberg filed a concurring and dissenting opinion in which she agreed that simple DUI cannot constitute a crime of moral turpitude, but disagreed with the majority’s conclusion regarding aggravated DUI.  She argued that the majority’s opinion in effect combines two regulatory offenses—simple DUI and driving while one’s license is under a restriction—to create a crime of moral turpitude, although neither offense by itself could be considered to constitute such a crime.