OWI and immigration status: what the primary sources say

Whether an OWI affects immigration status depends on the person's status, criminal history and exact conviction under federal law; no web page can answer it for an individual. What the primary sources do show: a DUI is not a "crime of violence" under Leocal v Ashcroft, the Board of Immigration Appeals did not treat simple DUI as a crime involving moral turpitude, and two or more DUI convictions create a rebuttable presumption against good moral character.^[1][2][3]

This page summarizes a handful of federal decisions and agency guidance. It is not individual advice, and it does not cover every ground of inadmissibility or removal. Immigration consequences turn on facts this page cannot assess, so a noncitizen facing an OWI charge can ask an immigration lawyer to review the exact charge before any plea is entered.

Why immigration and criminal law answer different questions

The Michigan criminal case decides whether you committed an OWI offense and what sentence follows. Immigration authorities then apply federal categories, such as "crime involving moral turpitude" or "good moral character", to that conviction. The label "OWI" or "DUI" does not settle the federal question by itself. USCIS, for example, defines "driving under the influence" by whether the offense requires proof of impairment, and the Board of Immigration Appeals' moral-turpitude decisions turned on what the Arizona statute required the driver to know.^[4][2][8] For how Michigan defines its offenses, see how MCL 257.625 is organized.

Is a DUI an "aggravated felony" or a "crime of violence"?

In Leocal v Ashcroft (2004), the U.S. Supreme Court held that state DUI offenses that either have no mental-state element or require only negligence in operating a vehicle are not "crimes of violence" under 18 USC 16.^[1] The case involved a Florida DUI that caused serious bodily injury.^[1] So a DUI offense of that kind is not an aggravated felony on the crime-of-violence theory.^[1] Leocal did not address every other immigration ground, such as controlled-substance offenses or good moral character, and this page does not either.

Is a DUI a "crime involving moral turpitude"?

In Matter of Lopez-Meza (BIA 1999), the Board of Immigration Appeals said that simple DUI is ordinarily a regulatory offense with no culpable mental state, and that a simple DUI offense does not inherently involve moral turpitude.^[2] But the Board held that Arizona aggravated DUI, which required the driver to know he or she was prohibited from driving, was a crime involving moral turpitude.^[2]

In Matter of Torres-Varela (BIA 2001), the Board held that Arizona aggravated DUI based on two or more prior DUI convictions was not a crime involving moral turpitude.^[8] The number of prior DUIs alone did not change the answer in that case.^[8]

These decisions concern Arizona statutes. Whether any Michigan variant, such as OWI combined with driving while license suspended, would be treated the same way was not determined in the sources used for this guide.

Good moral character: cancellation of removal and naturalization

In Matter of Castillo-Perez (2019), the Attorney General held that evidence of two or more DUI convictions during the relevant period creates a rebuttable presumption that the person lacked good moral character during that time.^[3] Because cancellation of removal requires 10 years of good moral character, such evidence also presumptively makes a person ineligible for that relief.^[3]

The USCIS Policy Manual applies the same kind of presumption in naturalization cases. It says:^[4][9]

• "Driving under the influence" includes all state and federal impaired-driving offenses, including "operating under the influence", but not lesser offenses, such as negligent driving, that do not require proof of impairment.^[4]
• Two or more DUI convictions during the statutory period establish a rebuttable presumption that the applicant lacks good moral character.^[4]
• The presumption may be overcome only with "substantial relevant and credible contrary evidence" that the person had good moral character even during that period and that the convictions were "an aberration"; later rehabilitation efforts do not by themselves show good moral character for that period.^[4]
• A person who is or was a "habitual drunkard" during the statutory period cannot establish good moral character, and arrests or multiple DUI convictions may be indicators of that status.^[9]

Because Michigan counts prior convictions under its own rules, a second Michigan OWI is relevant on both tracks; see how prior convictions are counted.

Visas: the State Department's alcohol guidance

The Foreign Affairs Manual tells consular officers to refer visa applicants, immigrant and nonimmigrant, to the panel physician when they have a single alcohol-related arrest or conviction within the last five years, two or more within the last ten years, or other evidence suggesting an alcohol problem.^[5]

The same guidance lets the consular section or the Department prudentially revoke a visa when a record shows a DUI arrest or conviction within the previous five years, unless the arrest was already addressed in a visa application through a panel physician.^[6] Consular officers are told never to revoke a visa while the person is in the United States, except for a DUI-based revocation; other revocations of people in the country are left to the State Department's Visa Office.^[10] What a revoked visa means for a person's status inside the country is a separate question that the sources here did not address.

Your defense lawyer's duty

In Padilla v Kentucky (2010), the Supreme Court held that the Sixth Amendment requires defense counsel to advise a noncitizen client whether a plea carries a risk of deportation.^[7] If you cannot afford a lawyer, see getting a court-appointed lawyer.

Practical steps

• Tell your criminal defense lawyer your immigration status at the first meeting. The questions to ask a lawyer page has a checklist.
• Before agreeing to any plea agreement, an immigration lawyer can review the exact charge in the proposed plea.
• Keep certified copies of the complaint, the judgment and any dismissal order, including for a charge that did not lead to a conviction, in case an immigration filing or interview asks about it.
• Do not assume a Michigan set-aside removes a conviction for immigration purposes; the sources here do not address that, so ask.
• For travel, also read traveling to Canada with an OWI; CBP says a DUI conviction or pending DUI charge can make a person ineligible for Global Entry.^[11]