RULES IN ILLINOIS TRAFFIC, DUI, CRIMINAL CASES CIRCUIT COURT OF COOK COUNTY

PROCEDURES IN ILLINOIS TRAFFIC CASES, QUASI-CRIMINAL CASES AND CERTAIN MISDEMEANORS

11.2 Alcohol and Drug Evaluations in Driving Under the Influence cases (DUI) and Other Serious Traffic Offenses

(a) An alcohol and drug evaluation and recidivist background check shall be made available to the court prior to disposition in the following:

(i) All driving under the influence of alcohol or drug cases.

(ii) Any charge of reckless driving that is a reduced charge of a DUI.

(b) All evaluations shall be filed with the Clerk of the Court. The Clerk shall keep and maintain evaluations separate from general access files and shall release the evaluation as prescribed by law or upon appropriate order of court. The Clerk shall return all evaluations to the evaluation program upon completion of sentence.

[Amended, effective March 26, 1992.]

11.3 Driving While Under the Influence Cases (DUI)

(a) Supervision - Prior to considering a disposition of supervision for a defendant who has been charged with the offense of driving while under the influence of alcohol, other drugs, or a combination thereof, in violation of Section 11-501, of the Illinois Vehicle Code, (Ill. Rev. Stat., 1991, ch. 95 1/2, par. 11-501) [625 ILCS 5/11-501] or a similar provision of a local ordinance, the court shall first review and have made of record each of the following:

(i) The facts and circumstances of the violation with specific attention to the level of alcohol concentration in the defendant's blood and to whether personal injury or property damage occurred in conjunction with the violation.

(ii) The written alcohol/drug evaluation of the defendant prepared by the Central States Institute of Addiction, with specific attention to the determination of the risk to public safety that the defendant presents if he/she continues to drive a motor vehicle. Risk means the specific level (minimal, moderate, significant, or high) assigned to a DUI defendant which describes the defendant's probability of continuing to operate a motor vehicle in an unsafe manner. This level assignment is based upon the following factors: The nature and extent of the defendant's alcohol and/or drug use; the BAC level at the time of arrest; prior dispositions for DUI; and other factors which may include any physical, emotional and/or social dysfunction arising from the use of alcohol and/or other drugs.

(iii) Any alcohol or drug related driving offenses contained in the defendant's driving abstract, as recorded by the Secretary of State's Office, for the preceding five years.

(iv) A DUI recidivist check (a record of any prior order(s) of supervision entered by the Circuit Court of Cook County, and a statement whether the defendant has participated in an alcohol/drug intervention program for a DUI offense) shall be conducted by the Central States Institute of Addiction as part of its evaluation process.

(v) Whether, in connection with the circumstances of the violation, the driving privileges of the defendant have been suspended as a result of a refusal to submit to a chemical test.

(vi) Evidence of all other elements required by law.

(vii) When the defendant requests the sentence of supervision, he/she shall establish:

1. That an order of supervision is in the best interests of the public.

2. That an order of supervision is in the best interests of the defendant and his/her family; and,

3. That there are other matters in mitigation for consideration.

(viii) Any other factors deemed relevant by the court or brought to the attention of the court by either the defendant, the prosecutor or the victim.

(b) Evaluation Program - The Central States Institute of Addiction (C.S.I.), hereinafter referred to as "the evaluation program," shall perform all alcohol/drug evaluations for the court pursuant to the statutory requirements of Section 6-206.1 or Section 11-501, of the Illinois Vehicle Code, (Ill. Rev. Stat., 1991, ch. 95 1/2, par. 6-206.1 and 11-501) [625 ILCS 5/6-206.1, 625 ILCS 5/11-501], similar provisions of a local ordinance or by court order for other misdemeanors wherein the nature of the charge, the conduct of the defendant, or a factor to be considered in sentencing is alcohol/drug related.

(c) Evaluation Program Requirements - The Evaluation Agency shall comply with the following requisites:

(i) The evaluation program shall demonstrate competency in the substance abuse field.

(ii) A representative of the evaluation program shall be present and available to testify on all scheduled court dates.

(iii) The evaluation program shall, on a regular basis, monitor each Level I - Minimal Risk defendant, while that person is assigned to an intervention program and until the termination of the sentence. Required reports shall be made to the court's designated monitoring agency as to the defendant's progress.

(iv) The evaluation program shall charge a fair and reasonable fee. The evaluation program shall have a written policy, acceptable to the court, concerning the acceptance of and the servicing of indigent defendants. The criteria used in the determination of indigency shall be as prescribed by the Department of Alcoholism and Substance Abuse Regulations (D.A.S.A.).

(v) The evaluation program shall establish a network of D.A.S.A. funded agencies for the purpose of providing intervention services, which include inpatient or outpatient treatment and aftercare services to indigent defendants.

(vi) The evaluation program shall provide reports, for both fee paying and indigent clients, within statutory guidelines and on scheduled court dates.

(vii) Reports by the evaluation program shall contain a statement concerning the defendant's recidivism, which shall include a record of any prior orders of supervision not contained in the Secretary of State's driving abstract and a statement whether the defendant has participated in an alcohol/drug intervention program for a prior DUI offense.

(viii) The evaluation program shall not refer or accept a DUI defendant, classified as Risk Level I, into a remedial education program provided within the same program or service. The evaluation program shall not refer or accept a DUI defendant, classified as Risk Level II or III, into a treatment program provided within the same program or service.

(ix) The evaluation program shall have referral agreements with service agencies that provide comprehensive treatment services and adhere to the, to Illinois Department of Alcoholism and Substance Abuse Regulations, and have established procedures that protect the confidentiality of program participants and their records.

(x) The evaluation program shall refer defendants classified as Level I - Minimal Risk, to a remedial education program that maintains that population separate from defendants classified as Level II - Moderate or Significant Risk, or Level III - High Risk. Risk means the specific level (minimal, moderate, significant or high) assigned to a DUI defendant which describes the defendant's probability of continuing to operate a motor vehicle in an unsafe manner. This level assignment is based upon the following factors: The nature and extent of the defendant's alcohol and/or drug use; the BAC level at the time of arrest; prior dispositions for DUI and other factors which include any physical, emotional, and/or social dysfunction arising from the use of alcohol or other drugs.

(xi) C.S.I. shall continue as sole provider of alcohol/drug evaluations for the court as long as it remains a not-for-profit organization and conforms with all requirements contained herein, retains all necessary licenses required by state statute or regulations, and is in compliance with any agreement executed with the Circuit Court of Cook County.

(xii) The evaluation program shall file a statement of compliance with this Rule. This statement must express the program's intention to comply with all of the provisions of Rule 11.3. The statement shall be filed in the Office of the Chief Judge, Circuit Court of Cook County, Richard J. Daley Center, Chicago, Illinois 60602. Failure to file a statement of compliance will result in the non-acceptance of the evaluator's reports for any Circuit Court of Cook County purpose.

(d) Remedial Service Providers - Any licensed program providing a driver remedial education course of study for a defendant charged with the offense of driving while under the influence of alcohol, other drugs, or a combination thereof, in violation of Section 11-501, of the Illinois Vehicle Code, (Ill. Rev. Stat.,1991, ch.95 1/2, par. 11-501) [625 ILCS 5/11-501] or a similar provision of a local ordinance, shall comply with the following:

(i) The remedial education course shall be conducted as prescribed by the Department of Alcoholism and Substance Abuse Regulations.

(ii) The remedial education program shall charge a fair and reasonable fee.

(iii) The remedial education program shall have a written policy, acceptable to the court, concerning the acceptance and servicing of indigent defendants. The criteria used in the determination of indigency shall be as prescribed by the Department of Alcoholism and Substance Abuse Regulations.

(iv) The remedial education program shall maintain classes for defendants classified as Level I - Minimal Risk, separate from defendants classified as Level II - Moderate or Significant Risk, or Level III - High Risk.

(v) The remedial education program shall encourage family members to attend classes with the clients at no additional cost.

(vi) The remedial education program shall report to the court or to the court designated monitoring agency as to the client's progress. Written progress reports, as required by the court, shall be made in a timely manner for both fee paying and indigent defendants.

(vii) The remedial education program shall notify the appropriate prosecuting authority and the designated monitoring agency of a defendant/client's failure to attend and/or complete court ordered remedial education classes. The program shall communicate this information, in writing, to the court within thirty (30) days after said noncompliance.

(viii) The remedial education program that services DUI defendants in the Circuit Court of Cook County must file a statement of compliance with this Rule. This statement must express the program or agency's intention to comply with all of the provisions of Rule 11.3. The statement shall be filed in the Office of the Chief Judge, Circuit Court of Cook County, Richard J. Daley Center, Chicago, Illinois 60602. Failure to file a statement of compliance will result in the non-acceptance of the driver remedial education program report for any Circuit Court of Cook County purpose.

[Amended, effective March 26, 1992.]

11.4 Community Service

(a) All defendants sentenced to community service shall be processed as follows:

(i) The defendant shall be directed to contact the Social Service Department. The Social Service Department will direct the defendant to the appropriate community service program pursuant to the court order. All defendants who are subject by statute to mandatory community service sentences shall be directed to the Sheriff's Community Service Program.

(ii) If a defendant is evaluated as inappropriate for either community service program, the Social Service Department will immediately notify the prosecuting authority. The case will be recalled for reconsideration of the sentence.

(iii) A progress report shall be made to the court regarding the defendant's placement and progress in the community service program as required by the court.

(iv) On the termination date of sentence, the defendant shall appear in court with evidence of the successful completion of all aspects of the court's order.

(b) The defendant shall pay the reasonable costs associated with community service activities ordered by the court whether the agency providing the community service activity is the Sheriff of Cook County or the Social Service Department of the Circuit Court of Cook County. Each community service agency shall establish a schedule of fees and shall uniformly assess fees based upon the defendant's ability to pay.

(c) Defendants who have not satisfactorily completed community service may be resentenced to community service at the discretion of the court and with such modifications as the court deems appropriate.

[Amended, effective March 26, 1992.]


11.5 Termination of Supervision

(a) Whenever a defendant is charged with a crime that has the potential of a jail sentence, he shall be required to return to court on the date set for the termination of supervision.

(b) The court, on the record, shall inquire of the prosecuting authority whether or not there is any objection to the termination.

[Amended, effective March 26, 1992.]

11.6 Monitoring

(a) In all cases where a defendant is placed on Supervision or Conditional Discharge for an alcohol/drug-related misdemeanor driving offense, the Sentencing Order shall indicate that the defendant is to be monitored on a reporting basis by the Social Service Department or their designee. The defendant placed on Supervision or Conditional Discharge shall pay all reasonable costs assessed by the monitoring agency for such monitoring, in addition to fines, costs, surcharges and/or restitution as ordered by the sentencing court.

(b) The monitoring agency shall provide written reports to the sentencing court pursuant to the sentencing order. A final report shall be filed with the court on the scheduled date for termination.

(c) The monitoring agency shall promptly report in writing to the prosecuting authority any violation of the sentencing order or the requirements of the monitoring agency. All violations shall be reported as soon as discovered or no later than thirty (30) days prior to the date of termination of sentence. Nothing herein shall prevent the filing of a violation at any time prior to the termination of the sentence. Upon filing of a Petition for Violation, said petition shall be set for hearing within the period prescribed by law.

[Amended, effective March 26, 1992.]

DUI Defense Illinois Legal challenges to evidence

1. ILLEGAL STOP OF PERSON OR VEHICLE – a driver cannot be stopped unless the officer has a reasonable and articulate basis to believe that a traffic law or other law has been violated. Similarly, a person cannot be seized unless a violation has occurred.

2. WEAVING INSIDE THE LANES IS NOT ILLEGAL – weaving without crossing any lines is not a violation of the law, and a vehicle cannot be stopped for that reason.

3. ANONYMOUS REPORT OF DRUNK DRIVING -- a car cannot be stopped simply because an anonymous citizen reported that the driver was drunk.

4. STANDARD FIELD SOBRIETY TESTING IS INACCURATE – in healthy individuals, the one-leg stand test is only 65% accurate, and the walk-and-turn test is only 68% accurate in determining if a person is under the influence. Those persons with injuries, medical conditions, 50 pounds or greater overweight, and 65 years or older cannot be validly judged by these tests.

5. NON-STANDARDIZED FIELD TESTS ARE INVALID – neither the Federal Government (NHTSA) nor medical science considers touching your finger to your nose, or saying the alphabet, or counting backwards, as valid sobriety tests.

6. BREATH TESTING IS INACCURATE – virtually all experts concede that one breath test alone is unreliable. The Illinois Supreme Court has remarked that breathalyzers are not foolproof. Finally, breath testing in Illinois is subject to various inaccuracies, including a +/- 12.5% variance, non-specificity for ethanol, etc.

7. BOOKING ROOM VIDEOS – Many police stations videotape suspects at the police station, where their speech is clear and their balance is perfect, in spite of police testimony to the contrary.

8. IN-SQUAD VIDEOS – more and more often, the suspect’s driving and performance on field tests is being recorded; often contradicting police testimony.

9. FAILURE TO PROVIDE SPEEDY TRIAL – If a client is not provided with a trial within 120 to 160 days of demand, through delays of the court or prosecutor, the charges must be dismissed.

10. POLICE BLOOD TEST INACCURATE – Many times, police blood testing fails to follow prescribed rules of testing, analysis, or preservation recommendations.

11. HOSPITAL BLOOD TEST INACCURATE – Hospital blood tests overestimate a person’s true level by as much as 25% in healthy, uninjured individuals, and are not statistically reliable in severely injured persons.

12. BREATH TEST OPERATOR UNLICENSED – An Illinois Breath Test Operator must possess a valid, unexpired operator’s license, or the breath test result is inadmissible.

13. BREATHALYZER MACHINE MALFUNCTIONS – if there is a malfunction or repair of the breath test instrument within 62 days before or after a suspect’s breath test, the results of the suspect’s test are presumed invalid.

14. BREATH TEST OPERATOR LICENSE EXPIRED -- An Illinois Breath Test Operator must possess an unexpired operator’s license, or the breath test result is inadmissible. Licenses expire automatically every 3 years.

15. BREATH TEST DEVICE NOT APPROVED – A breath testing instrument must be listed on the Federal List of Approved Breath Evidential Instruments and the ISP approved list of Devices, or the results are inadmissible.


16. FAILURE TO PROVE DRIVING – a defendant’s admission to driving, without more, does not prove a charge of driving under the influence.

17. INDEPENDENT WITNESSES – often times, independent witnesses to accidents, bartenders, hospital personnel and others can provide crucial evidence of the defendant’s sobriety.

18. FAILURE TO MIRANDIZE – prosecutors may not use as evidence the statements of a defendant in custody for a DUI when the police have failed to properly issue Miranda Warnings.

19. FIELD SOBRIETY TEST IMPROPERLY ADMINISTERED – according to the National Highway and Traffic Safety Administration, improperly administered field tests are not valid evidence of intoxication.

20. OFFICER’S PRIOR DISCIPLINARY RECORD – a police officer’s previous disciplinary record can be used to attack the officer’s credibility.

21. PORTABLE BREATH TEST INADMISSIBLE – Illinois law prohibits the use of portable breath testing results as evidence at trial in a DUI case.

22. PORTABLE BREATH TEST IMPROPERLY ADMINISTERED – The manufacturers of portable breath testing devices require a minimum of two tests to consider the results evidential in nature.

23. FAILURE TO CONDUCT OBSERVATION PERIOD – Illinois requires that a driver be observed continuously for a minimum twenty minutes prior to a breath test in order for the results to be considered admissible and valid.

24. EXPERT WITNESSES – Expert witnesses are available to review the validity of breath tests, blood tests and field sobriety tests.

25. MEDICAL AND HEALTH PROBLEMS -- Medical problems with legs, arms, neck, back and eyes can affect the results of field sobriety tests. Further, other medical conditions can also affect the validity of breath test results.

26. BAD WEATHER – Weather reports establishing high winds, low visibility, and other conditions are available to explain poor driving or poor balance.

27. LACK OF PROBABLE CAUSE TO ARREST -- A police officer must have specific and articulable facts to support any arrest for DUI, or the suspension will be reversed and the evidence suppressed at trial.

28. ILLEGAL SEARCH – the police are prohibited from searching a person or the automobile for a minor traffic offense, and may not search a car without a driver’s consent or probable cause. Any evidence illegally obtained is not admissible in court.

29. PRIOR INCONSISTENT STATEMENTS BY POLICE OFFICERS – any statement made by a police officer, verbally, in police reports, or at previous court proceedings may be used to attack that officer’s credibility.

30. POST-DRIVING ABSORPTION OF ALCOHOL – the prosecutor must prove the blood or breath alcohol at the time of driving. Recent consumption of alcohol just prior to driving will cause the test results to be higher than what the true level was when the person was operating the automobile.

31. INTERFERING SUBSTANCES – many items contain forms of alcohol which may cause false results, such as asthma spray, cough drops, paints, fingernail polish. These items can cause the breath results to be invalid.

32. BREATH MACHINE NOT PROPERLY OPERATED – the manufacturers of breath testing devices have specified protocols which must be followed for a breath result to be valid. Failure to follow these requirements will result in improper readings.

33. FAILURES TO PRODUCE DISPATCH TAPES – most stops of vehicles are recorded on dispatch tapes, as well as recording police communications regarding an arrest of an individual. Failure to preserve such tapes upon request can cause all evidence which could have been recorded to be suppressed.

34. MISLEADING STATEMENTS BY POLICE OFFICERS – Any misleading statement by the police regarding the consequences of taking (or refusing) a blood, breath, or urine test will cause the suspension to be reversed and removed from the driver’s record.

35. STATUTES OF LIMITATIONS – A misdemeanor charge of DUI must be filed within 18 months of the date of offense, or the charges will be dismissed outright.

36. PRIVATE PROPERTY – a person who has not driven the car on a public highway cannot be suspended for drunk driving.

37. FAILURE TO DISCLOSE EXPERTS – the failure of the prosecutor to disclose the state’s expert(s) will cause those witnesses to be barred from testifying against the defendant.

38. LACTATE RINGERS – when hospital staff use lactate ringers during the treatment of a patient, the hospital blood serum results will report falsely elevated, and therefore invalid, readings.

39. FAILURE TO RECORD CERTIFICATION TESTS – the failure to include the value of the simulator solution used to test breath machines will cause the breath test results to be inadmissible in court against the driver.

40. FORCED BLOOD DRAWS – the police may not take a blood test against the driver’s consent where there has not been an injury involved, or the result is inadmissible.

7th Circuit, Aliens, Immigration case law updates, Asylum

Eke v. Mukasey
No. 06-3391 January 7, 2008.

Pet. for Review, Order of Bd. of Immigration Appeals. Petition denied. Bd. did not err in finding that aliens' Illinois conviction on charge of conspiracy to violate Illinois identity fraud statute by attempting to purchase automobile constituted "aggravated felony" under 8 USC sec. 1101(a)(43)(M)(i) in govt. petition for summary removal. Value of vehicle was more that $10,000, and fact that alien never actually acquired vehicle was not material since Bd. could look to intended loss to satisfy requirements of sec. 1101(a)(43)(M)(i).

Hussain v. Mukasey
No. 07-2448 December 18, 2007

Denial of a petition for habeas corpus alleging that petitioner's detention pending removal proceedings deprived him of liberty without due process of law is affirmed where: 1) the immigration code bars the court from ordering the release of an alien pending judicial review of the order of removal; and 2) the principle that an alien may be released if, six months after the beginning of the removal period there is no significant likelihood of removal in the reasonably foreseeable future, does not apply when judicial review of the removal order is pending.

Dist. Ct. did not err in denying alien's habeas petition, claiming that his 2.5-year detention pending resolution of his removal proceeding deprived him of liberty without due process. Alien's petition was rendered moot when IJ subsequently entered order directing that alien be removed contingent to govt. compliance with Convention Against Torture provisions. Moreover, Ct. of Appeals could not order alien's release pending its review of validity of contingent removal order.

Mekhael v. Mukasey
11/16/07 No. 06-4285

Christian Lebanese citizen's petition for review of a denial of a motion to reopen asylum proceedings is granted and the matter remanded where BIA failed to give reasoned consideration to post-hearing evidence, including the 2006 war between Israel and Hezbollah, as well as increased violence against Christians in Lebanon following the publication in Denmark of cartoons caricaturing the Prophet Muhammad.

Zheng v. Mukasey
11/09/07 Case Number: 07-3673

A motion seeking a stay of petitioner's removal to China pending review
of the dismissal of his original asylum claim and a denial of his motion
to reopen the asylum proceedings is denied as: 1) the motion was
untimely as far as the original asylum claim was concerned; and 2)
petitioner failed to establish that he was entitled to a stay as to the
other claim.

Bolante v. Keisler
10/31/07 Case Number: 07-2550

A motion for release on bail by an asylum applicant is denied where: 1)
a grant of a bail would conflict with the Attorney General's
non-reviewable discretion to deny parole to asylum-seekers; and 2) the
petitioner's entry visa was revoked prior to his arrival in the U.S.,
thus he was not lawfully admitted to the U.S. for constitutional
purposes, and had no right to be released.

Mohammad Hussain v. Keisler
10/24/07 Case Number: 06-2932

Petition for review of an order of voluntary departure is denied where:
1) petitioner filed an asylum application but later withdrew it in
exchange for a longer period of voluntary departure; and 2) the court
lacks jurisdiction over petitioner's claim that his obligation to
register pursuant to the National Security Entry-Exit Registration
System led to the initiation of removal proceedings against him and
violated his right to equal protection of the laws.

US v. Pacheco-Diaz
10/23/07 Case Number: 05-2264

Sentence for illegal reentry is affirmed over defendant's arguments
that: 1) a prior Illinois conviction for simple possession of marijuana
was insufficient to trigger an eight-level enhancement; 2) the district
court misapprehended the scope of its discretion when it declined to
further reduce his sentence for acceptance of responsibility; and 3) his
sentence was unreasonable because the court failed to meaningfully
consider the unwarranted disparity between his sentence and the
sentences of similarly situated defendants in fast-track jurisdictions.

Potdar v. Kiesler, No. 06-2441 (10/10/07).

Petition for Review, order of Bd. of Immigration Appeals. Petition
denied. Petition for review of an order vacating an earlier order to
reopen removal proceedings is denied where the court did not have
jurisdiction to review the denial of petitioner's motion for a
continuance.

Ct. of Appeals lacked jurisdiction to consider alien's appeal of Bd.'s
order denying alien's request to reopen and terminate exclusion hearing
in order to allow alien to proceed on his application for adjustment to
permanent resident status. Alien's motion to reopen was essentially
request for continuance of exclusion proceedings, which, under Ali,
precludes any review of denial by Ct. of Appeals.

Tariq v. Keisler, No. 06-2518 (10/9/07). Petition for Review, Order of
Bd. of Immigration Appeals. Petition denied.

Record contained sufficient evidence to support IJ's denial of asylum
request by alien (native of Pakistan) where alien alleged that he and
his family were persecuted by creditor while in Pakistan, and that he
would be subject to future persecution based on his Western upbringing
if forced to return to native country. Alien's asylum petition, which
was filed more than 1 year after alien reached age of majority, was
untimely. Moreover, alien could not base application for withholding of
removal on acts of creditor where: (1) creditor was mere private
citizen; (2) alien could not demonstrate that harm done by creditor was
on account of alien's membership in particular social group; and (3)
alien failed to present evidence that his Western upbringing would cause
individuals in Pakistan to attribute any political opinion to him.

Ali v. Gonzales, No. 06-3240 Petition for review of a denial of a
request for a continuance and subsequent motion for reconsideration is
dismissed for lack of jurisdiction where: 1) the jurisdiction-stripping
provision of section 242(a)(2)(B)(ii) of the Immigration and Nationality
Act (INA) generally precludes judicial review of continuance decisions
of immigration judges; and 2) selective prosecution claims by aliens are
largely barred by 8 U.S.C. section 1252(g), and petitioner's claims of
discrimination were insufficient to invoke the exception for outrageous
cases. (9/14/07)

Moab v. Gonzales, No. 06-2710 (9/13/07). Petition for Review, Order of Bd. Of Immigration Appeals. Petition granted.

Record failed to support Bd.’s finding that alien was not credible in his asylum and withholding of removal applications where alien alleged that he endured beatings in his native country (Liberia) because he was homosexual. While Bd.’s credibility determination was based largely on fact that alien failed to mention his homosexuality in airport interview, airport interviews are not always reliable indicators of credibility, and alien’s alleged homosexuality was consistently mentioned in his asylum application.

Kadia v. Gonzalez No. 06-1299 (9/7/07). Petition for Review, Bd. of Immigration Appeals. Petition granted.

Record failed to support IJ's denial of asylum petition by alien (native of Cameroon) who alleged that he would be persecuted because of his political beliefs if forced to return to native country. While IJ found alien to be incredible based on perceived inconsistencies between his testimony and his statements made in asylum application, Ct. determined that said inconsistencies either pertained to trivial facts or were not in fact inconsistent statements. IJ also improperly questioned alien by failing to give alien full opportunity to explain events supporting his asylum claim.

Peralta-Cabrera v. Gonzalez, No. 06-2254 (9/7/07). Petition for Review, Order of Bd. of Immigration Appeals. Petition granted.

Bd. erred in denying alien's motion to reopen asylum proceedings based on contention that alien was entitled to new hearing because he never received notice of asylum hearing and because deportation order was entered in absentia. Record showed that notice was sent via certified mail to address given by alien, but that, pursuant to post office policy, post office never attempted to deliver said notice because it was not addressed to alien "in care of" actual home owner. Ct. further found that govt., which was aware that alien was staying temporarily with home owner, had responsibility to ensure that notice would be delivered in compliance with postal policy.

DUI Illinois, Summary Suspension, Lawyer, Driving on a Suspended or Revoked License, Chicago, Illinois DUI Attorney

The DUI criminal charge in Illinois is separate from the Statutory Summary Suspension, which is an administrative process. In Illinois, Driving under the Influence of Alcohol (DUI) or on a Suspended or Revoked license can have serious consequences.

An officer stops a vehicle at a roadside safety check or for probable cause, reasonable suspicion or unusual operation. The officer observes the driver and requests a driver's license, vehicle registration.

If the officer suspects the driver is under the influence, the driver is requested to submit to field sobriety tests.

If the officer has probable cause based on the field sobriety tests, the driver is placed under arrest for DUI and taken to the police station. The driver is requested to submit to a chemical testing of breath, urine or blood.

If a tested driver's BAC is more than .05 but less than .08 percent and no drugs are found in the system, no Statutory Summary Suspension will apply. However, the associated DUI charge will remain until appropriate action is taken by the court.

If the driver refuses or fails to complete testing, the Statutory Summary Suspension will apply. A repeat offender who refuses testing will not be eligible for a Restricted Driving Permit (RDP) during the three-year suspension. A repeat offender who takes the test and fails is not eligible for an RDP during the 12-month suspension.

If the driver's test results show a BAC of .08 percent or more, or any trace of a drug, illegal substance or intoxicating compound, the driver will be issued a law enforcement sworn report notifying the driver of a Statutory Summary Suspension.

If the driver's license is valid, a receipt is issued that will allow driving for 45 days. The offender is required to post bond and may be detained until bond is posted. The offender's vehicle may be towed, impounded or seized.

Statutory Summary Suspension, Illinois (Effective on January 1, 2009, a new Illinois law mandates car breath test device for first-offense DUIs. Provides that a first offender who receives a statutory summary suspension shall be issued a monitoring device driving permit (rather than a monitoring device driver's license), except under specified circumstances.)

A Statutory Summary Suspension is an administrative procedure providing for the automatic driver's license suspension of a driver arrested for DUI who fails chemical testing (a test showing a BAC of .08 percent or more or any amount of cannabis, controlled substance or intoxicating compound) or who refuses to submit to or fails to complete testing.

Penalty for failing chemical testing:

First offense — mandatory 3-month driver's license suspension
Second offense — mandatory 12-month suspension

Penalty for refusing to submit to chemical testing:

First offense — mandatory 6-month driver's license suspension
Second offense — mandatory 36-month suspension

A Statutory Summary Suspension in Illinois does not apply to an individual who has a BAC of less than .08. If a BAC greater than .05 and additional evidence such as an open container warrants a DUI arrest, the outcome of the court case will determine if penalties apply.

Summary suspensions in Illinois are automatic, effective on the 46th day from the notice date of the suspension. This suspension of driving privileges does not take the place of criminal penalties for a DUI conviction. An offender may request a judicial hearing to challenge the legality of an arrest; however, the request does not stop the suspension from taking effect.

If a commercial driver’s license (CDL) holder receives a Statutory Summary Suspension, his/her CDL privileges will be disqualified for 12 months if a first offender and lifetime disqualification for a second offender. A Judicial Driving Permit (JDP) may be available to qualifying offenders during the suspension period.

Penalties for a DUI Conviction, Driving Under the Influence, Illinois

A first-time or second-time DUI in Illinois is typically charged as a misdemeanor, not a felony. However, a third-time DUI in Illinois or a drunk driving case where someone suffers great bodily harm will be treated as a felony.

A first DUI offender in Illinois can receive court supervision, only once, which will not be viewed as a conviction. The criminal case is dismissed after successful completion of court supervision, but can't be expunged from the public record.

First conviction (under age 21) — Class A misdemeanor with possible 0- 12 months imprisonment; loss of driving privileges for minimum 2 years; 100 hours community service; fines of up to $2,500; eligible for Restricted Driving Permit (RDP) after one year of revocation; may be required to have a BAIID installed in vehicle as part of driving relief.

Underage DUI, Illinois: zero tolerance law penalties apply to drivers in Illinois under age 21 who have any trace of alcohol in their systems or who refuse to submit to chemical testing.
• First offense: 3-month driver's license suspension for a BAC greater than .00; 6-month suspension for refusal to submit to or failure to complete testing.
• Second offense: 1-year driver's license suspension for a BAC greater than .00; 2-year suspension for refusal to submit to or failure to complete testing.
• If a commercial driver’s license (CDL) holder receives a zero tolerance suspension, his/her CDL privileges will be disqualifed for 12 months if a first offender and lifetime disqualification for a second offender.

Offenses Related to Underage Drinking, Illinois

Purchase or Attempted Purchase of Alcohol by a Minor
• Any person under age 21 convicted of violating the Liquor Control Act of 1934 for the illegal purchase, attempting to purchase, accepting, possession or consumption of alcohol will have his/her driving privileges suspended or revoked for 1 year.

Providing Alcohol to a Person Under 21
Class A misdemeanor with possible 0-12 months imprisonment; fines of $500-$2,500.

Parental Responsibility
Applies to parents or guardians knowingly allowing underage consumption of alcoholic beverages at gatherings at a residence. Class A misdemeanor with possible 0-12 months imprisonment; fines of $500-$2,500.

Illegal Transportation
Offenders may have their driving privileges suspended for 1 year for a first offense and revoked for a subsequent offense.

Hotel/Motel Responsibility
Applies to any hotel/motel employee who rents a room to a person under age 21 knowing that alcoholic beverages will be consumed there; or any person age 21 or older paying for a hotel room or facility knowing alcoholic beverages will be consumed there by individuals under age 21.
• Class A misdemeanor with 0-12 months imprisonment; fines of up to $2,500.
• Persons over age 21 paying for the hotel/motel room are held liable for any injuries or damage to persons or property caused by the underage drinker(s).

Accidents Causing Injury or Death
• Any person under age 18 who has been charged with an offense as a result of an accident in which a passenger was seriously injured or killed may be denied a driver's license or license renewal by the Secretary of State's office.

First conviction (over age 21) — Class A misdemeanor with possible 0-12 months imprisonment; loss of driving privileges for minimum 1 year; 100 hours community service; fines of up to $2,500; eligible for RDP; may be required to have a BAIID installed in vehicle as part of driving relief.

Second conviction — Class A misdemeanor with possible 0-12 months imprisonment; fines of up to $2,500; eligible for RDP after one year of revocation; required to have a BAIID installed in vehicle as part of driving relief; loss of driving privileges for minimum 5 years if committed within 20 years of first conviction.

—Within five years of first conviction: Mandatory 5 days in jail or 240 hours community service (terms of imprisonment or community service not subject to suspension/reduction nor is offender eligible for probation); fines of up to $2,500; eligible for RDP after one year of revocation; required to have a BAIID installed in vehicle as part of driving.

Third conviction (Aggravated DUI) — Class 2 felony with possible 3-7 years imprisonment; mandatory minimum 10 days in jail or 480 hours community service; fines of up to $25,000; loss of driving privileges for minimum 10 years.

—Within five years of previous conviction: Mandatory minimum 10 days in jail or 480 hours community service (terms of imprisonment or community service not subject to suspension/reduction nor is offender eligible for probation); eligible for RDP after one year of revocation; required to have a BAIID installed in vehicle as part of driving relief.

Fourth conviction (Aggravated DUI) — Class 2 felony with possible 3-7 years imprisonment; fines of up to $25,000; lifetime loss of driving privileges; not eligible for any type of driving relief.

Fifth conviction (Aggravated DUI) — Class 1 felony with possible 4-15 years imprisonment; fines of up to $25,000; lifetime revocation of driving privileges; not eligible for any type of driving relief.

Sixth or subsequent conviction (Aggravated DUI) — Class X felony with possible 6-30 years imprisonment; fines of up to $25,000; lifetime revocation of driving privileges; not eligible for any type of driving relief.

Driving Under the Extreme Influence — BAC of .16 or greater, Illinois

First conviction — Class A misdemeanor with possible 0-12 months imprisonment; loss of driving privileges for minimum 1 year (if under 21, minimum 2 years); 100 hours community service; fines of $500-$2,500; eligible for RDP; may be required to have a BAIID installed in vehicle as part of driving relief.

Second conviction — Class A misdemeanor with possible 0-12 months imprisonment; loss of driving privileges for minimum 5 years if committed within 20 years of first conviction.

—Within five years of first conviction: Mandatory 7 days in jail; community service may be awarded in addition to, but not in lieu of jail time; fines between $1,250-$2,500; eligible for RDP after one year of revocation; required to have a BAIID installed in vehicle as part of driving relief.

—Within 10 years of first conviction: Mandatory 2 days in jail; fines of $1,250-$2,500; eligible for RDP after one year of revocation; required to have a BAIID installed in vehicle as part of driving relief.

Third conviction (Aggravated DUI) — Class 2 felony with possible 3-7 years imprisonment; mandatory 90 days imprisonment (not eligible for community service); fines of $2,500-$25,000; loss of driving privileges for minimum 10 years; eligible for RDP after one year of revocation; required to have a BAIID installed in vehicle as part of driving relief.

—Within 20 years of previous conviction: Loss of driving privileges for minimum 10 years.

Fourth conviction (Aggravated DUI) — Class 2 felony with possible 3-7
years imprisonment (not eligible for probation or conditional discharge);
minimum fine of $2,500.

Driving Under the Influence — Child Endangerment
(driver over age 21 transporting a child under age 16)

First conviction — Mandatory 6 months in jail and 25 days of community service in a program benefiting children; loss of driving privileges for minimum 1 year; fines of $1,000-$2,500; eligible for RDP; may be required to have a BAIID installed in vehicle as part of driving relief.

—If resulting in bodily harm to a child: Class 4 felony with possible 1- 3 years imprisonment; mandatory fine of $2,500-$25,000 and 25 days of community service in a program benefiting children (imprisonment or assignment to community service not subject to suspension); not eligible for probation.

Second conviction — Class A misdemeanor with possible 0-12 months imprisonment; mandatory 6 months in jail and 140 hours community service, 40 hours of which in program benefiting children (terms of imprisonment or community service not subject to suspension/reduction); not eligible for probation; fines of $1,000-$2,500; loss of driving privileges for minimum 5 years if committed within 20 years of first conviction; eligible
for RDP; required to have a BAIID installed in vehicle as part of driving relief.

—Within 10 years of first conviction: Class 4 felony with possible 1-3 years imprisonment; mandatory 1 year in jail and 25 hours community service in program benefiting children (terms of imprisonment or community service not subject to suspension/reduction); not eligible for probation; minimum fine of $2,500; eligible for RDP; required to have a BAIID installed in vehicle as part of driving relief.

—Within 10 years of first conviction and resulting in bodily harm to a child: 18 months in jail; 25 days community service in program benefiting children (terms of imprisonment or community service not subject to suspension/reduction); not eligible for probation; mandatory minimum fine of $5,000-$25,000.

Third conviction (Aggravated DUI) — Class 2 felony with possible 3-7 years imprisonment; 25 days community service in program benefiting children (terms of imprisonment or community service not subject to suspension/ reduction); not eligible for probation; mandatory fine of $2,500-$25,000; loss of driving privileges for minimum 10 years.

—Within 20 years of previous conviction: Class 2 felony with possible 3-7 years imprisonment; mandatory 3 years in jail and 25 days community service in program benefiting children (imprisonment or assignment of community service not subject to suspension); not eligible for
reduced sentence; mandatory fine of $25,000.

Fourth conviction (Aggravated DUI) — Class 2 felony with possible 3-7 years imprisonment; not eligible for probation/conditional discharge; minimum fine of $25,000.

DUI while Suspended or Revoked for Previous DUI; Leaving the Scene of a Personal Injury or Fatal Crash; Reckless Homicide; or Aggravated DUI with a Death.

First conviction — Class 4 felony with possible 1-3 years imprisonment; loss of driving privileges for double the original suspension period or additional 1-year revocation.

—If suspended for previous DUI: Additional 30 consecutive days in jail, 40 days of 24-hour periodic imprisonment or 720 hours community service (terms of imprisonment or community service not subject to suspension/reduction); not eligible for probation; fines of up to $2,500; may result in seizure and forfeiture of vehicle.

Second conviction — Class 4 felony with possible 1-3 years imprisonment; mandatory 30 days in jail or 200 hours community service; loss of driving privileges for double the original suspension period or additional 1- year revocation.

—If suspended for previous DUI: Additional 30 consecutive days in jail, 40 days of 24-hour periodic imprisonment or 720 hours community service (terms of imprisonment or community service not subject to suspension/ reduction); not eligible for probation; fines of up to $2,500; may result in seizure and forfeiture of vehicle.

Third conviction — Mandatory minimum 10 days in jail or 480 hours community service; loss of driving privileges for double the original suspension period or additional 1-year revocation.

—If suspended for previous DUI: Additional 30 consecutive days in jail, 40 days of 24-hour periodic imprisonment or 720 hours community service (terms of imprisonment or community service not subject to suspension/ reduction); not eligible for probation; may result in seizure and forfeiture of vehicle.

Fourth conviction — Class 2 felony with possible 3-7 years imprisonment (not eligible for probation or conditional discharge); fines of up to $25,000; may result in seizure and forfeiture of vehicle.

Additional Consequences of DUI, Illinois
• A DUI conviction is a permanent part of an offender's driving record.
• The offender may lose work time.
• The offender will be required to complete an alcohol/drug evaluation and an alcohol/drug remedial education course or substance abuse treatment program before his/her driving privileges are reinstated.
• The offender must meet the requirements of the Secretary of State's Department of Administrative Hearings prior to obtaining a Restricted Driving Permit.
• The offender's vehicle may be impounded or seized.
• A Breath Alcohol Ignition Interlock Device (BAIID) may be installed in the offender's vehicle as a condition of driving relief.
• The offender is required to carry high-risk auto insurance for 36 consecutive months.
• The offender's vehicle registration will be suspended or revoked.

Penalties for Other DUI-Related Offenses, Illinois

Aggravated DUI
A third or subsequent DUI conviction; a DUI while driving a school bus carrying children; a DUI resulting in great bodily harm, permanent disability or disfigurement; a DUI without a license or permit; a DUI with no proof of insurance; or a DUI after a prior conviction of reckless homicide or Aggravated DUI resulting in one or more details.

Aggravated DUI Involving a Death
A DUI resulting in one or more deaths.
• Class 2 felony with possible 3-14 years imprisonment; fines of up to $25,000.
• Possible 6-28 years imprisonment for multiple fatalities.
• Minimum 2-year revocation of driving privileges.

Reckless Homicide (DUI)
A DUI resulting in the loss of life.
• Class 2 felony with possible 3-14 years imprisonment; fines of up to $25,000.
• Possible 6-28 years imprisonment for multiple fatalities.
• Minimum 2-year revocation of driving privileges.

Possession of Drugs in a Vehicle
Illegal possession of a controlled substance or cannabis by a driver; violations must be entered in court records and reported to the Secretary of State.
• 1-year suspension of driving privileges for a first conviction.
• 5-year suspension of driving privileges for a second conviction within 5 years.

Knowingly Permitting a Driver Under the Influence to Operate a Vehicle
Class A misdemeanor with possible 0-12 months imprisonment and fines of up to $2,500.

Driving on a Suspended or Revoked License, Illinois

First conviction — Class A misdemeanor with possible 0-12 months imprisonment; mandatory 10-day imprisonment or 30 days community service; fines of up to $2,500; loss of driving privileges for double the original suspension period or additional 1-year revocation; may result in seizure or forfeiture of vehicle.

Second conviction — Class 4 felony with possible 1-3 years imprisonment; minimum 30 days in jail or 300 hours community service; fines of up to $25,000; loss of driving privileges for double the original suspension period or additional 1-year revocation; may result in seizure or forfeiture of vehicle.

Third conviction — Class 4 felony with possible 1-3 years imprisonment; minimum 30 days in jail or 300 hours community service; fines of up to $25,000; loss of driving privileges for double the original suspension period or additional 1-year revocation; may result in seizure or forfeiture of vehicle.

Fourth-ninth conviction — Class 4 felony with possible 1-3 years imprisonment; minimum 180 days in jail; fines of up to $25,000; loss of driving privileges for double the original suspension period or additional 1-year revocation; may result in seizure or forfeiture of vehicle.

10th-14th conviction — Class 3 felony with possible 2-5 years imprisonment; not eligible for probation or conditional discharge; fines of up to $25,000; loss of driving privileges for double the original suspension period or additional 1-year revocation; may result in seizure or forfeiture of vehicle.

15th or subsequent conviction — Class 2 felony with possible 3-7 years imprisonment; not eligible for probation or conditional discharge; fines of up to $25,000; loss of driving privileges for double the original suspension period or additional 1-year revocation; may result in seizure or forfeiture of vehicle.

Dram Shop
An employee or owner of an establishment may be held liable for a crash resulting from the unlawful selling, giving or delivery of alcohol in that establishment to a minor, intoxicated person or person known to be under legal disability or in need of mental treatment.
• Liability is limited to $50,467 for property damage or personal injury.
• Liability extends to $61,682 for a loss of means of support due to death or injury

Illegal Transportation/Open Container
Transporting, carrying, possessing or having any alcoholic beverages in the passenger compartment of a motor vehicle, except in the original container with the seal unbroken, is illegal. Exceptions to the law are limousines, motor homes, mini motor homes and chartered buses not hired for school purposes.
• Maximum $1,000 fine and point-assigned violation on driver's record.
• 1-year driver's license suspension or revocation for a second conviction within 12 months.
• Mandatory 1-year license suspension for an offender under age 21 for a first offense, and mandatory license revocation for a second offense.

Fraudulent IDs and Driver's Licenses
It is illegal to assist in obtaining or to fraudulently obtain, distribute, use or possess a fictitious or fraudulent state ID card or driver's license.The Secretary of State has the authority to suspend (up to 12 months) or revoke driving privileges prior to a conviction for anyone involved in the following offenses:

Class A misdemeanors (subsequent offenses are Class 4 felonies)
• Possessing, attempting to obtain or assisting another in obtaining a fictitious driver's license or permit.
• Allowing another person to use your license or permit.
• Displaying or representing as one's own any license or permit issued to someone else.
• Allowing any unlawful use of one's license or permit.

Class 4 felonies (subsequent offenses may be Class 3 felonies)
• Possessing, attempting to obtain or assisting another in obtaining a fraudulent license or permit.
• Issuing or assisting in the issuance of a fictitious driver's license.
• Manufacturing, possessing or providing any document for the purpose of obtaining a fictitious license.
• Possessing a driver's license-making or permit-making implement.

Judicial Hearings, Illinois

A driver may request a judicial hearing to challenge a summary suspension within 90 days after the notice date. The hearing must be conducted within 30 days of the request or on the first court date scheduled to consider the criminal charges.

Legally, only four issues may be considered:
• Whether the person was properly arrested;
• Whether there were reasonable grounds to believe at the time of arrest that the person was driving or in physical control of the vehicle while under the influence of alcohol or other drugs;
• Whether the driver, after being informed of the impending summary suspension, refused to submit to chemical testing; and
• Whether, after being advised of the summary suspension, the driver submitted to chemical testing that showed a BAC of .08 or greater or any trace of cannabis, a controlled substance and/or intoxicating compounds.

The summary suspension is rescinded if the court rules in favor of the driver. The result of the hearing is entered on the driver's record.

Driving Permits, Illinois

Drivers who have had their licenses suspended or revoked may be granted limited driving privileges. These temporary driving permits are only issued for employment, education and/or medical purposes when no other form of transportation is available. Some offenders may be required to have a Breath Alcohol Ignition Interlock Device (BAIID) installed in their vehicles as a condition for the issuance of a permit.

Judicial Driving Permit (JDP), Illinois
• Drivers under age 18 are not eligible for a JDP.
• First-time DUI offenders may request a JDP from the court to allow limited driving during a Statutory Summary Suspension. (A first-time offender is a driver who has not received a previous summary suspension, been convicted of DUI or assigned court supervision for DUI in this state, or who has not been convicted of DUI in another state within five years.)

Before the court can approve a permit, the offender must prove a hardship exists and provide proof of a current professional alcohol and drug evaluation.
• The JDP does not become effective until the 31st day of suspension.
• A commercial driver’s license (CDL) holder does not qualify for a JDP to operate a commercial motor vehicle. The driver may be eligible for a JDP for base driving privileges if the driver is a first offender.

Restricted Driving Permit (RDP), Illinois

Full driving privileges are lost for a minimum of five years if a driver receives a second conviction for any of the following: DUI; leaving the scene of a personal injury or fatal crash; reckless homicide, or any combination of these offenses in a 20-year period. If a driver receives a third conviction for any of these offenses, regardless of the length of time between convictions, full driving privileges will be lost for a minimum 10 years. If a driver receives a fourth or subsequent conviction, his/her license will be revoked permanently. If a driver is convicted of DUI in another state, Illinois driving privileges will be revoked.

If eligible, those convicted of DUI may apply to the Secretary of State's office for an RDP.
• A multiple offender whose BAC test results are .08 percent or greater or whose chemical test indicates any amount of a controlled substance, is not eligible for an RDP during the summary suspension period.
• A multiple offender who refuses to submit to or fails to complete chemical testing is not eligible for an RDP during the summary suspension.
• A driver under age 16 whose driving privileges are revoked is not eligible for an RDP.
• To obtain an RDP, the offender must prove hardship exists, provide a current professional drug and alcohol evaluation and, when appropriate, provide proof of remedial education or treatment.
• An offender must appear before a hearing officer in the Secretary of State's Department of Administrative Hearings. The driving record is reviewed to ensure that the driver would not threaten public safety if allowed to drive on a limited basis.
• An individual with two or more alcohol related driving incidents on his/her driving record within 10 years is required to have a Breath Alcohol Ignition Interlock Device (BAIID) installed in his or her vehicle for the duration of the RDP. As required by statute, the individual is responsible for the fee required for the BAIID during this period.
• An individual requesting a formal hearing for an RDP or reinstatement of his or her driving privileges will be charged a $50 nonrefundable filing fee when requesting the formal hearing.

Driver’s License Reinstatement, Illinois, Chicago

Statutory Summary Suspension, Illinois
Driving privileges may be reinstated at the end of the Statutory Summary Suspension period unless the court instructs the Secretary of State otherwise.

A person convicted of DUI who lost his/her driving privileges because of a summary suspension will have that time credited to the minimum driver's license revocation period.

Before driving privileges can be reinstated:
• Other suspensions or revocations on the driving record must be cleared.
• A $250 reinstatement fee must be paid to the Secretary of State, $30 of which goes to the Department of Human Services, Office of Alcoholism and Substance Abuse, to help defray the cost of professional alcohol and drug evaluations for indigent offenders.
• In the case of repeat offenders, the reinstatement fee is $500, with $60 going to the Illinois Road Fund, $190 going to the Drunk and Drugged Driving Prevention Fund, and $250 going to the General Revenue Fund.
• The reinstatement of a Statutory Summary Suspension becomes valid when it is entered on the driver's record in the Secretary of State's office provided the provisional termination date has passed.
• Payment for the reinstatement fee may be mailed to: Secretary of State, DUI Section, 2701 S. Dirksen Pkwy., Springfield, IL 62723. If paying by credit card, please call 217-782-3619 (debit cards not accepted).

Revocation

To have driving privileges reinstated in Illinois, a driver convicted of DUI must:
• Have a clear driving record other than the revocation sanction.
• Undergo an alcohol and drug evaluation. If an alcohol or drug problem is indicated, proof of treatment must be submitted.
• Complete an alcohol and drug remedial education program. Even if the evaluation does not recommend treatment, the driver is still required to complete a remedial education program.
• Appear before a Secretary of State hearing officer. For a first offense, aninformal hearing may be conducted by visiting a hearing officer at one of the regional Driver Services facilities. Multiple offenders must request in writing, pay a $50 non-refundable filing fee and attend a formal hearing in Chicago, Springfield, Mt. Vernon or Joliet.
• Demonstrate during the hearing that public safety will not be endangered if driving privileges are restored. The hearing officer considers the seriousness of the offense, the offender's overall driving record and the driver's remedial efforts.
• File proof of financial responsibility prior to reinstatement, pay a $500 reinstatement
fee, pass the driver's license examination (written, vision and driving portions) and pay the appropriate application fee.
• Repeat offenders must pay an additional $500 in reinstatement fees.
• Payment for a revocation may be mailed to: Secretary of State, Traffic Violations Section, 2701 S. Dirksen Pkwy., Springfield, IL 62723. If paying by credit card, please call 217-785-8619 (debit cards not accepted).
• An individual requesting a formal hearing for reinstatement of his/her driving privileges must pay a $50 non-refundable filing fee when requesting the formal hearing.

A reinstatement in Illinois becomes valid when it is entered on the driver's record in the Secretary of State's office.

Secretary of State
Administrative Hearings Dept.
291 Howlett Bldg.
Springfield, IL 62756
217-782-7065
or
17 N. State St., #1200
Chicago, IL 60602
312-793-3862

Good Moral Character (GMC), Naturalization N-400 application, Chicago District Office, Citizenship and Immigration Services (CIS)

1. Lawfully Admitted for Permanent Residence
2. Continuity of Residence
3. Residency: Jurisdiction
4. Physical Presence
5. Good Moral Character
6. Attachment to the Constitution
7. English language proficiency and knowledge of United States history and government.

Naturalization applicants are required by law to appear in person before an USCIS District Adjudications Officer (DAO, formerly called an “Immigration Examiner”) for an "examination under oath."

District Adjudications Officers (DAO) must make a determination whether the applicant possesses the requisite Good Moral Character for purposes of naturalization. In making this determination, DAO's will primarily focus on the 5-year statutory period prior to filing of the N-400 application. Part 7 of the N-400, entitled Additional Factors of Eligibility has 15 questions which contain most of the grounds for finding a lack of GMC. In addition, DAOs "should always ask" the applicant the following questions, if applicable:

1. Have you ever failed to pay, or refused to pay, alimony, or failed to comply with a court order to pay alimony?
2. Have you ever failed to pay, or refused to pay, child support or failed to comply with a court order to pay child support?

If an applicant admits to having committed or been arrested, sentenced, or convicted for any crimes or offenses in violation of the law, or if the file contains evidence of any crimes or offenses, DAOs will focus on the number and type of offenses to determine whether the applicant lacks GMC based on this evidence.

A person will always lack GMC if, during the 5-year statutory period, he has committed one or more "crimes involving moral turpitude"(CIMT). The most common definition of a CIMT is "an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man."

If the applicant gives an affirmative response to any of the questions involving GMC in Part 7 (Questions No. 8, 9, 12, and 15) or if the cases involves CIMTs, DAOs will refer the applicant to a secondary officer for a traditional interview format.
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A list of crimes involving moral turpitude: This checklist is designed to provide a quick reference to the types of offenses which the Board of Immigration Appeals has found to be "Crimes Involving Moral Turpitude." This list is not exclusive and DAOs will consult with Service counsel for more in-depth information.

Crimes Against The Person

• Murder/Intentional Homicide
• Voluntary Manslaughter
• Homicide by Reckless Conduct
• Involuntary Manslaughter w/ Reckless Disregard
• Attempted Murder
• Kidnapping Mayhem
• Assault or Attempted Murder Upon Government Officers
• Carrying a Concealed Weapon w/ Intent to Use Against the Person of Another
• Assault w/ a Deadly Weapon
• Assault w/ Weapon Likely to Produce Bodily Harm
• Interfering w/ a Law Enforcement Officer w/ Use of Deadly Force
• Attempting to Obstruct/Impede the Progress of Justice
• Aggravated Assault Against a Peace Officer

Crimes Against Property

• Attempted Arson
• Blackmail/Extortion
• Forgery
• Uttering a Forged Instrument/Forged Prescription
• Making False Statements of Financial Condition
• Robbers'
• Embezzlement
• Larceny/Theft
• Grand theft
• Petty Theft
• Receiving Stolen Property
• Concealing Assets in Bankruptcy
• Encumbering Mortgaged Property w/ Intent to Defraud
• Fraudulently Issuing Check w/ Insufficient Funds
• Fraudulently Issuing Worthless Check
• Illegal use of ATM or Credit Card
• Passing Forged Instrument
• Attempted Fraud
• Using Mails to Defraud
• Making False Statements in Acquisition of Firearm
• Securities Fraud
• Welfare Fraud
• Transporting Stolen Property
• Obtaining Money by False Pretenses
• Bribery
• Malicious Trespass

Sexual and Family Crimes

• Assault w/ Intent to Commit Abortion
• Attempted Assault w/ Intent to Commit Carnal Abuse
• Statutory Rape/Rape
• Indecent Assault/Sexual Battery
• Adultery
• Bigamy
• Prostitution
• Sodomy
• Gross Indecency
• Contributing to the Delinquency of a Minor/Sexual Acts
• Taking Indecent Liberties w/ a Child
• Incest
• Oral Sexual Perversion

Crimes Against the Government

• Falsely Issuing a Narcotic Prescription
• Offering a Bribe
• Making, Passing, or Possessing Counterfeit Coins
• Conspiracy to Violate IRS Laws
• Securities Fraud
• Counterfeiting
• Smuggling Merchandise
• Impersonating Federal Officer
• False Statements/Firearm
• False Statements or Entries
• Harboring a Fugitive
• Using False Names & Addresses to Violate Postal Laws
• Uttering/Selling False/Counterfeit Immigration Documents
• False Statements to Obtain a Passport
• False Statements in LPR Application
• Perjury
• Theft from U.S. Mail
• Taking Kickbacks
• Receiving Funds by False Statements
• Trafficking in Narcotics
• Failing to Report Income
• Union Official Unlawfully Accepting a Loan
• Kickbacks on Government Contracts
• False Statements/Selective Service
• Falsely Representing Social Security Number
• False Statements/Unemployment Benefits

_____________________________
(a) General Criteria . One of the most important basic requirements in naturalization is that of good moral character (GMC). An applicant for naturalization must show that, during the statutorily prescribed period, he or she has been and continues to be a person of good moral character. This period includes the time between the examination and the oath of allegiance. Although the law specifies that the good moral character requirement applies to the statutory period, conduct prior to that period may impact the adjudicator’s dec ision regarding whether or not an applicant meets the requirement. Consideration of the applicant’s conduct and acts outside the statutory period is specifically sanctioned by law if the applicant’s conduct during the statutory period does not reflect reform of character or the earlier conduct is relevant to the applicant’s present moral character. See section 316(e) of the Immigration and Nationality Act (the Act) and 8 CFR 316.10(a)(2) . Thus, when addressing the issue of good moral character, the examination should be broad enough and sufficiently detailed to disclose all relevant adverse conduct or activity. Although the focus should be on conduct during the statutory period, the inquiry should extend to the applicant’s conduct during his or her entire lifetime.

Good moral character should be determined on a case-by-case basis. Section 101(f) of the Act and 8 CFR 316.10 specifically provide that certain criminal conduct precludes a finding of good moral character. Section 101(f) also provides that an applicant may lack good moral character for reasons other than those described in 101(f)(1) – (f)(8). The courts have held that good moral character means character which measures up to the standards of average citizens of the community in which the applicant resides. Any conduct or acts which offend the accepted moral character standards of the community in which the applica nt resides should be considered, without regard to whether the applicant has been arrested or convicted.

(b) The Record and GMC . Although a GMC issue can arise at any time during the naturalization interview, the N-400 contains questions in Part 7 which are keyed directly to the good moral character requirement. See Chapter 74.2(g) of the AFM for a detailed discussion of each question in part 7. Some offenses which may preclude a finding of good moral character such as controlled substance violations, prostitution, smuggling, gambling, and habitual drunkenness which are not mentioned in this section, are discussed in detail in Chapter 74.2(g) of this manual. In general, these questions represent an effort to obtain a complete record of any criminal, unlawful, or questionable activity in which the applicant has ever engaged, regardless of whether such information eventually proves to be material to the moral character issue. The previous version of the N-400 falls short of this objective in relation to the arrest-related question (question 15B of Part 7). For example, many applicants will not mention arrests in which prosecution was declined or resulted in suspended sentences or not guilty verdicts, based on their own interpretation of what the arrest question means. The arrest-related questions on the revised N-400 were expanded in an effort to obtain a more complete arrest record.

Even with the expanded arrest-related questions, a mere reading of the question to the applicant does not always mean that accurate and complete testimony will be forthcoming. In each case, you should take into consideration the education level of the applicant and his or her knowledge of the English language. Then, based on these factors, you should rephrase the question in simple language, supplementing it with additional questions to the extent required for complete understanding by the applicant. The em phasis should always be in the direction of over-simplification and explanation, and the scope of the inquiry should always be clearly reflected in the record. Examples of clarifying questions include, “Have you ever been arrested, anywhere in the world?” “Has a police officer ever questioned you?” “Have you ever been handcuffed by a police officer?” “Have you ever been in a police station?” “Have you ever been in court?” “Have you ever been in jail, even if just for one night?” “Have you ever had a crimina l record diverted, expunged, or dismissed?” "Have you ever had a record sealed by a judge and been told that you did not have to reveal the criminal conduct?" An applicant, when confronted with a false statement in a subsequent legal challenge, may claim that he or she did not understand what the officer meant when pertinent questions were asked during the interview.

In addition, a well-documented record of proceeding will strengthen the case in the face of a subsequent legal challenge. The record should be clearly and thoroughly documented so that anyone reviewing the file knows exactly what happened at the interview without need for the interviewing officer’s explanation. It is of vital importance that you mark, in red ink, the questions in Part 7 that you ask during the interview. The check or circle marks must be made next to the answers to the questions. In particular, questions (15A) and (15B), relating to criminal history, capture information central to naturalization eligibility and must always be annotated during the interview.

Notations of the applicant’s testimony should be made on the N-400 to provide for a more complete record of the examination. Clear and legible notations will have more probative value in subsequent legal proceedings. For example, you may note, “admits to one arrest for petty theft in (year), one year probation only, states no other arrests” on the application of an applicant who admits to the arrest during the interview. Suppose, in fact, this applicant had an additional disqualifying arrest and conviction for assault and battery two months prior to the interview that he failed to disclose. You learned of the second arrest after the interview. You continued the case for expired fingerprints and the second fingerprint check revealed the additional arrest. Although you should call in the applicant to establish why he failed to disclose the arrest, the notations are objective evidence that can be used in a denial on false testimony grounds. A sworn statement should always be taken if the applicant admits to comm itting a crime for which he or she has not been arrested. See Chapter 74.2(g), question (15A) regarding the admission of crimes for which an applicant has not been arrested. See also Chapter 15.6 regarding sworn statements. A sworn statement should also be taken when an applicant provides false testimony. See Chapter 74.2(g), question (12) part (H) , False Testimony .

(c) Definition of “Conviction ”. Most of the criminal offenses that preclude a finding of good moral character require a conviction for the disqualifying offense. Sometimes, it is difficult to determine if the outcome of the arrest resulted in a conviction. Various states have provisions for diminishing the effects of a conviction. In some states, adjudication may be “deferred” upon a finding or confession of guilt. Some states have a “diversion” program whereby the case is taken out of the normal criminal proceedings in order to avoid criminal prosecution and so that the person may benefit from a counseling or treatment program.

Prior to the passage of the 96 Act (IIRIRA), Matter of Ozkok , 19 I&N Dec. 546 (BIA 1988) defined “conviction” for immigration purposes. That decision set forth a “3- pronged test” for determining convictions:

•the alien pled guilty or nolo contendere or was found guilty of the charges against him or her.
•the judge ordered some form of punishment, penalty, or restraint of liberty to be imposed.
•a judgment of adjudication of guilt may be entered without further proceeding regarding guilt or innocence if the person violated the terms of probation or failed to comply with the requirements of the court order.

In the 96 Act, Congress broadened the scope of the definition of “conviction” by deleting the “3 rd prong”. The definition of “conviction” in Matter of Ozkok is no longer in effect. Section 101(a)(48)(A) of the Act defines “conviction” as:

1. a judge or jury has found the alien guilty or the alien entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
2. the judge has ordered some form of punishment penalty, or restraint on the alien’s liberty to be imposed.

By removing the third prong of Ozkok , Congress intended that even in cases where the adjudication is “deferred”, the original finding or confession of guilt and imposition of punishment is sufficient to establish a “conviction” for immigration purposes.

(1) Effect of Expungement . Post-IIRIRA, expungements do not remove the underlying conviction in many cases. In Matter of Roldan , Int. Dec. #3377 (BIA 1999), the BIA held that a state court action to “expunge, dismiss, cancel, vacate, discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute” has no effect. The regulations already provide that an expungement of a controlled substance violation does not affect the conviction. See 8 CFR 316.10(c)(3)(i) . Also, a second crime involving moral turpitude that is expunged is still considered a conviction. See 8 CFR 316.10 (c)(3)(ii) . Post IIRIRA, other expungements will not be given effect. If you are unsure of the effect of a particular expungement, contact your local district counsel .

The USCIS can in all cases require an applicant to bring in evidence of a conviction, even if the conviction has been expunged. It remains the applicant’s responsibility to obtain his or her record, even if it has been sealed by the court. In some cases the USCIS may file a motion with the court to obtain a copy of the record in states where the applicant cannot obtain it.

(d) Finding of a Lack of Good Moral Character . Finding a lack of good moral character may occur as a result of a statutory bar that precludes the applicant from establishing good moral character, or may occur as a result of a discretionary finding of a lack of good moral character by the adjudicating officer. An applicant may commit a certain act or acts that effectively and permanently bar him or her from naturalizing, in all cases and under all circumstances, or may commit a lesser offense during the statutory period that may conditionally bar him o r her from establishing good moral character. Other less serious acts require the adjudicating officer to take into consideration the nature of the offense(s), the applicant’s overall conduct, and other factors relevant to the definition of good moral character.

(1) Permanent Statutory Bars to Establishing Good Moral Character .
• Murder . If an applicant is convicted of murder at any time, he or she can never establish good moral character. See 8 CFR 316.10(b)(1)(i) . If the applicant has ever been convicted of murder, you should deny the naturalization application and consider whether the case should be referred for removal proceedings.
• Aggravated Felony Committed On or After November 29, 1990 . The definition of “aggravated felony” is in section 101(a)(43) of the Act. It is of vital importance that all interviewing officers are very familiar with what crimes constitute an aggravated felony. Some offenses require a minimum term of imprisonment to qualify as an “aggravated felony”. For example, a theft offense and a crime of violence are aggravated felonies if the term of imprisonment is at least one year. Note that the term of imprisonment is deemed to be the period of confinement ordered by the court regardless of whether the sentence was actually imposed. S ee section 101(a)(48)(b) of the Act. In IIRIRA, Congress expanded the offenses considered aggravated felonies and amended the definition to apply to offenses that occurred at any time.

For naturalization purposes, an applicant convicted of an aggravated felony on or after November 29, 1990, regardless of when the crime was committed, is permanently precluded from establishing good moral character. Accordingly, an application for naturalization filed by an individual convicted of an aggravated felony on or after November 29, 1990, must be denied. Moreover, the case should be considered for possible initiation of removal proceedings because an individual convicted of an aggravated felony at anytime is removable. See section 237(a)(2)(A)(iii) of the Act.

(2) Conditional Bars to Establishing Good Moral Character .

(A) Effect of Crime Involving Moral Turpitude (CIMT) Convictions . An applicant who commits and is convicted of or admits to committing one or more crimes involving moral turpitude during the statutory period cannot establish good moral character and is ineligible for naturalization. See 8 CFR 316.10(b)(2)(i) . However, there is an exception to the general rule, which you must consider. See section 212(a)(2)(A)(ii)(II) of the Act. The exception applies if the applicant has committed only one CIMT and the crime is a petty offense. A petty offense is defined as a crime for which the maximum penalty possible for the crime does not exceed imprisonment for one year and , if there is a conviction, the term of imprisonment does not exceed six months, regardless of suspension. Thus, an individual convicted of a CIMT will only qualify for the exception if the two conditions are satisfied. Not only must the sentence imposed have been less than six months, the maximum possible sentence that could have been imposed must not exceed one year.

For example, suppose an applicant commits petty theft in the statutory period. This was his or her only conviction. The applicant was fined and sentenced to one year of probation and community service. The maximum possible sentence for this conviction is 364 days. No term of imprisonment was imposed. The applicant meets both conditions of the petty offense exception and is not precluded from establishing GMC. In the above example, if the applicant had also received a suspended jail sentence of eight months, he or she would not meet the exception because he or she does not meet the second condition of the petty offense exception. The petty offense exception is inapplicable to an alien who has been convicted of or who admits the commission of more than one crime involving moral turpitude, even if only one of the two or more CIMTs was committed during the statutory period. An applicant who has committed more than one petty offense, only one of which is a CIMT, remains eligible for consideration of the petty offense exception.

(B) Definition of a Crime Involving Moral Turpitude (CIMT) . As defined in case law, moral turpitude generally refers to conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality and the duties owed to persons or society in general. See Matter of Flores , 17 I&N, Dec. 225 (BIA 1980), and cases cited therein. It is defined as conduct which is morally reprehensible and intrinsically wrong, the essence of which is an evil or malicious intent.

In determining whether a crime is one that involves moral turpitude, one must look to the nature of the offense itself. Matter of Esfandiary , 16 I&N Dec. 659 (BIA 1979) . Additionally, whether or not a crime is a CIMT often depends on whether or not a state statute includes one of the elements that introduces moral turpitude. A crime with the same name may be a CIMT in one state but not in another if the state statutes define the crime differently. Conspiracy to commit a crime considered a CIMT is also a CIMT in itself. If you are unsure if a crime involves moral turpitude, contact your local district counsel.

The general categories of crimes which involve moral turpitude contained in this reference guide are as follows:

• Crimes against a person . Crimes against a person involve moral turpitude when criminal intent or recklessness is an element of the offense, or when the crime is defined as morally reprehensible by state statute, e.g. statutory rape. Criminal intent or recklessness may be inferred from the presence of unjustified violence or the use of a dangerous weapon. Aggravated battery is usually, if not always, a CIMT. Assault and battery is usually not a CIMT.

•Crimes against property. Moral turpitude attaches to any crime against property which involves fraud, whether it entails fraud against the government or an individual. Certain crimes against property may require guilty knowledge or an intent to permanently take property. Theft (petty and grand), forgery, and robbery are CIMTs in some states. Possession of Burglary Tools and Loan Sharking are usually not CIMTs.

• Sexual and family crimes. It is difficult to discern a distinguishing set of principles which the courts apply to determine whether a particular offense is a CIMT. In some cases, the presence or absence of violence seems to be an important factor. The presence or absence of criminal intent can be a determining factor. Spousal abuse and child abuse can be CIMTs. For example, the Simple Assault, Domestic charge used by some states generally does not rise to the level of being a CIMT. Indecent Exposure and Abandonment of a Minor Child are also not CIMTs in some states.

• Crimes against the authority of the government . The presence of fraud is the main determining factor as to the presence of moral turpitude. Offering a Bribe to a Government Official and Counterfeiting are CIMTs. Possession of Counterfeit Securities (Without Intent) and Contempt of Court are not CIMTs.

(C) Controlled Substance Violations . Per section 101(f)(3) of the Act and 8 CFR 316.10(b)(2)(iii) , an applicant who has violated any law of the United States, of any state within the United States, or of any foreign country relating to a controlled substance is precluded from establishing good moral character, unless the violation was for a single offense of simple possession of 30 grams or less of marijuana. See Chapter 74.2(g), question 12 parts (A) and (F) for more details regarding these types of violations.

(D) Incarceration . Per section 101(f)(7) of the Act and 8 CFR 316.10(b)(2)(v) , an applicant who has been confined, as a result of conviction, to a penal institution for an aggregate period of 180 days or more cannot establish good moral character, unless the confinement was outside the United States due to a conviction of a purely political offense committed outside the United States. See Chapter 74.2(g), question 15B for more details regarding incarceration.

(E) False Testimony . An individual who gives false testimony during the statutory period for the purpose of obtaining any benefit under the Act is precluded from establishing good moral character. See section 101(f)(6) of the Act and 8 CFR 316.10(b)(2)(vi) . The most common occurrence of false testimony is failure to disclose a criminal or other adverse record, but false testimony can occur in any area. False testimony may relate to facts about lawful admission, absences, residence, marital status or infidelity, employment, organizational membership, tax filing information, or any of the multitudes of facts that are developed during a naturalization interview. False testimony, in any area, occurs when the individual deliberately intends to deceive the government while under oath in order to obtain citizenship, regardless of whether the information provided in the false testimony was material, in the sense that if given truthfully it would have made the applicant ineligible for naturalization. For example, an applicant may conceal an arrest that occurred outside or within the statutory period, believing that the disclosure of the arrest would bar his or her naturalization, even though the arrest was minor in nature and would not have an adverse effect upon his o r her eligibility. The applicant’s false testimony, in itself, denotes a lack of good moral character and renders the applicant ineligible for naturalization on the present application and on any future naturalization application until the false testimony date is outside of the statutory period.

There are three elements to false testimony that must exist for a naturalization application to be denied on false testimony grounds. In accordance with the Supreme Court decision in Kungys v. United States, 485 U.S. 759, 780-81 (1988) [ Appendix 74-6 ], the elements of false testimony are:

• Oral statements. “Testimony” for the purposes of section 101(f)(6) of the Act must be oral. False statements in an application, whether or not under oath, do not constitute “testimony”. Falsified documents do not constitute “testimony”. Further, the oral statement must be an affirmative misrepresentation. The Kungys decision makes it clear that there has been no false testimony if facts are merely concealed. Thus, incomplete but otherwise truthful answers will not rise to the level of false testimony. Concealment of the existence of a conviction is not false testimony. Fo r example, an individual has two convictions in the statutory period: one DUI conviction and one conviction for Assault and Battery. In response to the “arrest” question, the applicant testifies, “Yes, I was arrested for DUI and given one year probation.” That testimony is not false. It does conceal the existence of the other conviction, but is not an affirmative misrepresentation and is not, therefore, false testimony. To solve this problem, ALWAYS ask a follow-up question after a known concealment, such a s, “Are there any other arrests?” Assuming the applicant answers “no”, he has now provided false testimony.
• Under Oath . The oral statement must be made under oath in order to constitute false testimony. Oral statements to officers that are not under oath do not constitute false testimony.

• With Subjective Intent to obtain an immigration benefit . An individual must be providing the false testimony in order to obtain an immigration benefit. False testimony provided for any other reason does not preclude an individual from establishing good moral character. Subjective intent is often the most difficult aspect of sustaining a false testimony denial. As the government acknowledges in Kungys v. the United States :

“It is only dishonesty accompanied by this precise intent that Congress found morally unacceptable. Willful misrepresentations made for other reasons, such as embarrassment, fear, or a desire for privacy, were not deemed sufficiently culpable to brand the applicant as someone who lacks good moral character.”

For Illinois applicants read this case: Plewa vs. INS, 77 F. Supp. 2d 905; 1999 U.S. Dist. LEXIS 19652 (1999)

(F) Prostitution . Per section 101(f)(3) of the Act and 8 CFR 316.10(b)(2)(vii) , an applicant who has been involved with prostitution or commercialized vice as described in section 212(a)(2)(D) of the Act is precluded from establishing good moral character. Solicitation of a prostitute is not the same as procurement for purposes of prostitution as used in section 101(f)(3) of the Act. See Chapter 74.2(g) question 12 part (D) for additional discussion of prostitution.

(G) Gambling Offenses . Per section 101(f)(4) and section 101(f)(5) of the Act, and paragraphs (2)(x) and (2)(xi) of 8 CFR 316.10 (b) , an applicant who has committed and has been convicted for two or more gambling offenses, or who derives his or her income principally from illegal gambling activities is precluded from establishing good moral character. See Chapter 74.2(g) question 12 part (G) for additional discussion of gambling offenses.

(H) Probation and Parole . The USCIS is precluded from approving an application for naturalization while the applicant is on probation, parole, or under a suspended sentence per 8 CFR 316.10(c)(1) . An applicant who has satisfactorily completed probation, parole, or a suspended sentence during the statutory period is not precluded from establishing good moral character per se. However, the fact that an applicant was on probation or parole, or under a suspended sentence during the statutory period should be considered in determining whether that applicant can establish good moral character.

(3) Discretionary Finding of a Lack of Good Moral Character. In addition to examining the applicant’s record to determine if there are circumstances that preclude the applicant from establishing good moral character, you must determine if an applicant should be denied as a matter of discretion for a lack of good moral character. Discretionary findings should be made on a case-by-case basis, and should include consideration of all factors relevant to the case. The proper exercise of discretion involves considering these relevant factors as they relate to U.S. law, F ederal regulations, precedent decisions and their interpretations, and General Counsel opinions. Political decisions, ideological beliefs, and personal opinions about the strictness or leniency of the law must not be considered while exercising discretion. Although each decision must be made on a case-by-case basis, you should strive for consistency in application of the law while exercising discretion. Chapter 10.15 of this field manual discusses the proper application of discretion during adjudications.

(A) Aggravated Felony Committed Prior to November 29, 1990 . An aggravated felony conviction prior to November 29, 1990, does not preclude a finding of good moral character for purposes of naturalization. See Legal Opinion 96-16 . However, such a conviction would still be relevant to making an overall determination whether the individual has met his or her burden of establishing good moral character during the statutory period. This is especially so in light of Congress' expansion of the offenses considered aggravated felonies, and the fact that an applicant convicted of an aggravated felony at any time after admission is subject to removal pursuant to section 237(a)(2)(A)(iii) of the Act. It is important to note that the agency may not consider an application for naturalization where removal proceedings are pending against the applicant. See section 318 of the Act.

The fact that proceedings are not initiated and the fact that the applicant was not convicted of an aggravated felony on or after November 29, 1990, does not mean that the individual has met the burden of affirmatively establishing good moral character. See section 101(f) of the Act ("the fact that any person is not within (subsections (1) through (8)) does not preclude a finding that for other reasons such person is or was not of good moral character."); see also 8 CFR 316.10(a)(2) . Accordingly, you should consider the seriousness of the aggravated felony conviction committed in the past combined with the applicant's present moral character measured against the standards of the community. If the applicant's actions during the statutory period do not reflect a reform of character, then the applicant may not be able to demonstrate good moral character during the statutory period pursuant to section 101(f) , and section 316(e) of the Act, and 8 CFR 316.10(a)(2) . In such cases, the application for naturalization should be denied.

For example, an applicant may have been a convicted drug dealer prior to November 29, 1990. His or her conviction(s) prior to November 29, 1990, are aggravated felonies pursuant to section 101(a)(43) of the Act. Moreover, while such conviction(s) render him or her removable pursuant per section 237(a)(2)(A)(iii) , the District Director has chosen to exercise prosecutorial discretion in his or her case, and has not initiated removal proceedings (see the November 17, 2000 INS memorandum titled Exercising Prosecutorial Discretion for guidance). Nonetheless, if the record obtained during the naturalization application process shows a continued pattern of drug-related or other criminal activity, other negative factors such as lack of steady employment, home life, or conduct generally showing a lack of rehabilitation, th e applicant may be found to lack good moral character pursuant to section 101(f) and section 316(e) of the Act, 8 CFR 316.10(a)(2) , and possibly 8 CFR 316.10(b)(3)(iii) .

(B) Additional Grounds for Discretionary Denial . The following denial grounds involve a considerable degree of discretion. They are acts which may preclude a lack of good moral character that are specifically contained in the regulations. The regulations provide that you must consider any extenuating circumstances surrounding the commission of these acts:

• Support of dependents. Unless the applicant can establish extenuating circumstances, willful failure or refusal to support dependents precludes a finding of good moral character. See 8 CFR 316.10(3)(i) and Interpretations 316.1(f)(5) . For a detailed discussion of child support issues related to good moral character, see Chapter 74.2(f)(2) of this field manual.
• Adultery - Formerly section 101(f)(2) of the Act. Adultery as a mandatory bar to establishing good moral character was repealed by the Act of December 29, 1981. A detailed historical discussion on adultery as it relates to good moral character is contained in Interpretations 316.1(g)(2). Per 8 CFR 316.10(3)(ii) , an extramarital affair which tended to destroy an existing marriage shall preclude a finding of good moral character, unless the applicant establishes extenuating circumstances. If the lawful marriage ceased to be viable and intact before the commission of the adultery, such sexual misconduct without cohabitation does not support a finding of lack of good moral character.
• Unlawful Acts . [Revised as of 09-19-2005; AD05-35] The regulations provide for a finding of lack of good moral character based on discretionary grounds. An applicant may lack good moral character if he or she has committed unlawful acts that adversely reflect upon his or her moral character, or was convicted or imprisoned for such acts, unless the applicant can establish extenuating circumstances. See 8 CFR 316.10(b)(3)(iii) .

Proper application of this regulation requires the examining officer to make an individualized determination as to whether the applicant’s unlawful acts in fact reflect adversely upon the applicant’s moral character. In order to make such a determination, the examining officer must consider not only the nature and magnitude of the unlawful act but also the circumstances surrounding the conduct, including any mitigating or favorable factors (“extenuating circumstances”).

If the officer determines that the applicant’s unlawful acts do adversely reflect upon the applicant’s moral character, the applicant should be given the opportunity during the interview to establish extenuating circumstances. The applicant’s file should be annotated accordingly. The officer will consider evidence of extenuating circumstances if the evidence directly pertains to the applicant’s commission of the unlawful act.

In order to pertain to the commission of an unlawful act, an extenuating circumstance must precede or be contemporaneous to the commission of the unlawful act during the statutory period of required good moral character (“statutory period”). No conduct or equities (including evidence of reformation or rehabilitation) subsequent to the commission of the unlawful act during the statutory period shall be considered as an extenuating circumstance.

Additionally, any evidence of extenuating circumstances offered by the applicant “must pertain to the reasons showing lack of good moral character, including acts negating good character, not to the consequences of these matters, including the consequence” of ineligibility for naturalization. Jean-Baptiste v. United States , 395 F.3d 1190 (11th Cir.2005), citing Rico v. INS, 262 F.Supp.2d 6 (E.D.N.Y.2003).

This section of the regulation can be used when the unlawful act is not specifically mentioned in paragraph (1) or (2) of 8 CFR 316.10(b) . For example, the commission of a petty theft (a CIMT) in the statutory period should be considered for denial under 8 CFR 316.10(b)(2) , not 8 CFR 316.10(b)(3)(iii) . Conversely, convictions for Disorderly Conduct and basic Driving While Intoxicated do not fall under any category of disqualifying offenses listed in the statute or regulations.

Nevertheless, based on the facts of your particular case, you may decide the applicant’s conduct during the statutory period precludes a finding of good moral character under 8 CFR 316.10(b)(3)(iii) . Discretion must be applied on a case-by-case basis. The statute does not provide that ALL unlawful acts and/or criminal convictions merit a finding of lack of good moral character. Thus, circumstances surrounding the commission of the act are material to your decision. External factors that disclose purpose, motivation, and explanation assume importance.

- Is this the applicant’s only offense?
- Did the unlawful act occur early or late in the statutory period?
- What was the final outcome of the arrest?
- How long was the applicant on probation?
- Did the applicant comply with all conditions of the probation?

Because denial of naturalization under these provisions is not mandatory, you will need to be able to justify your finding in each case.

Nevertheless, based on the facts of your particular case, you may decide the applicant’s conduct during the statutory period precludes a finding of good moral character under 8 CFR 316.10(b)(3)(iii) . Discretion must be applied on a case-by-case basis. The statute does not provide that ALL unlawful acts and/or criminal convictions merit a finding of lack of good moral character. Thus, circumstances surrounding the commission of the act are material to your decision. External factors that disclose purpose, motivation, and explanation assume importance. Is this the applicant’s only offense? Did the unlawful act occur early or late in the statutory period? What was the final outcome of the arrest? How lon g was the applicant on probation? Did the applicant comply with all conditions of the probation? Because denial of naturalization under these provisions is not mandatory, you will need to be able to justify your finding in each case.

(4) Other Factors Affecting Good Moral Character . The application also contains other information in a number of areas which, when developed by proper examination, may have an indirect or less obvious bearing upon the issue of good moral character. Questions regarding the applicant’s occupation, method of lawful entry, tax filing, residences, absences, marital status and children may reveal issues that affect the applicant’s good moral character and may indicate areas that need to be explored further. This is the case even if a denial on the basis of oth er grounds, such as under INA Section 318 for not lawfully obtaining LPR status, is more appropriate than a denial for lacking good moral character.

Fraudulent admission . Examine for evidence of past fraud in the immigration process regarding the applicant’s status and the dependent’s status. The applicant may have obtained admission as a lawful permanent resident through a fraudulent marriage. The applicant may have concealed the marriage and entered as an unmarried son or daughter. You may discover this fact when, reviewing the birth certificates of the applicant’s children, you discover that he or she was married at the time of immigration as a second preference unmarried child of an alien resident (P22/F24). Or, when reviewing the N-400, you see that the applicant is now claiming a spouse that appears to make his or her admission as a permanent resident invalid. If he or she acquired permanent residence through an employment-based petition, he or she may never have met the requirements of the petition. The applicant may have obtained lawful permanent residence through a fraudulent legalization application. If a fraudulent admission is established, you may deny the natura lization application pursuant to section 318 of the Act because the applicant was not lawfully admitted for permanent residence. Detailed discussions concerning the above are found in Chapter 74.2, question (1) part (C) , Immigration Status .

The following example emphasizes the importance of examining the validity of the applicant’s status at the time of his/her entry into the U.S.

The following is a summary of the United States Court of Appeals, Ninth Circuit’s decision involving an alien that fraudulently entered the United States as an unmarried son of a legal permanent resident alien.

On October 19, 1984, Raymoundo Montilla Bernal immigrated to the United States, representing himself to be the unmarried son of a lawful permanent resident alien. As it turned out, however, Mr. Bernal had previously married Girlie M. Marty, a citizen of the Philippines, in a civil ceremony in the Philippines on November 16, 1980. The ceremony was performed by the Municipal Mayor of Subic. The marriage was attended by the couple’s parents and was witnessed by them. It was also recorded in the municipal regis try of the city of Subic.

On November 20, 1989, Mr. Bernal applied to become a naturalized citizen of the United States. During his naturalization interview conducted on May 24, 1990, Mr. Bernal stated under oath to the INS examiner that he had not been married in either a civil or a religious ceremony before immigrating to the United States in 1984. In his application for naturalization, he noted that he was married to Girlie M. Marty in the United States on June 3, 1986 in a ceremony in the United States.

Mr. Bernal gave false testimony under oath before a naturalization examiner. During Mr. Bernal’s naturalization examination, he was sworn under oath. Under oath, he misled the INS officer about his marital status at the time of his immigration to the United States. The INS officer recorded Mr. Bernal’s pertinent answers on the interview form and annotated the form in red ink. The officer noted that Mr. Bernal “claims no other wives: subject states he was single and not married in either a religious or civil ceremony prior to immigrating to the U.S.A. in 1984.”

On January 13, 1991, the INS issued an order to show cause charging Mr. Bernal with deportability for being within a class of aliens excludable at the time of entry. The INS charged that Mr. Bernal’s immigrant visa was obtained by fraud or by willful misrepresentation of a material fact concerning his marital status.

In order to be eligible for suspension of deportation, an applicant must be physically present in the United States for seven years prior to the issuance of a notice to appear and must show “good moral character” for the seven-year period. For purposes of the INA, an applicant cannot be regarded as a person of good moral character if “during the period for which good moral character is required to be established,” the applicant gave “false testimony for the purpose of obtaining benefits under this chapter.” 8 U.S.C. § 1101(f)(6).

The IJ found Mr. Bernal had immigrated to the United States by falsely representing himself as an unmarried child of a permanent resident alien. The IJ concluded that Mr. Bernal could not demonstrate good moral character for the required seven years in light of his false testimony before the naturalization examiner in 1990. The IJ denied Mr. Bernal’s application for relief from deportation and for voluntary departure and ordered him deported. Upon appeal by the applicant, the 9 th Circuit Court subsequently upheld the IJ’s decision.

Note that this whole case rested on the adjudicator asking proper questions and making proper annotations on the N-400.

When the adjudicator carefully conducts the examination and properly annotates the N-400, the USCIS has more objective evidence that can be used in any subsequent legal challenge.

For the complete decision please see Bernal v INS , 154 F.3d 1020 (9 th Cir. 1998).

• Legalization or Special Agricultural Worker (SAW) fraud . The legalization regulations at 8 CFR 245a.3(n)(4(ii) and 8 CFR 245a.4(b)(23)(iv) permit information contained in granted legalization files (W16 and W26) to be used at a later date to make a decision on a naturalization application. Naturalization may be denied if the applicant fraudulently gained lawful permanent residence through a legalization application USCIS can establish was fraudulent. You may not use information contained in SAW files (S16 and S26) to make a decision on a naturalization application . The confidentiality clause prohibits you from questioning an applicant regarding any information provided by the applicant relative to his or her SAW application. See section 210(a)(6)(A) of the Act. Further, Matter of Masri , 22 I&N Dec. 1145 (BIA 1999) states the following:

“Information provided in an application to adjust an alien’s status to that of a lawful temporary resident under section 210 of the Act is confidential and prohibited from use in rescission proceedings under section 246 of the Act, or for any purpose other than to make a determination on an application for lawful temporary residence, to terminate such temporary residence, or to prosecute the alien for fraud during the time of application.”

However, the fact that an applicant was a SAW does not preclude you from questioning that applicant about his or her SAW status and from denying the application based on your findings. A direct admission by the applicant during the naturalization examination that he or she never did agricultural work can be used as a basis for denying his or her application. Additionally, indirect evidence that the applicant obtained SAW status fraudulently or did not meet the conditions for obtaining SAW status may be suff icient basis for denial. For example, if a SAW applicant claims her children were born in her country of origin during the qualifying period for SAW eligibility, then the evidence of her children’s birth indicates that she was not physically present in the U.S. during the qualifying period. This evidence is not “information provided in an application to adjust an alien’s status to that of a lawful temporary resident under Section 210,” hence it can be used as a basis for denial. A detailed discussion on thi s topic is found in Chapter 74.2, question (1) part (C) , Immigration Status .

• Future fraud . Examine for the possibility of future fraud regarding additional beneficiaries never before claimed or acknowledged. Sometimes, in anticipation of obtaining citizenship and the ability to quickly sponsor children on I-130 petitions, some applicants claim relatives on their N-400 who are not their children in the belief that this will facilitate the process. If an applicant also orally testifies to this claim in addition to listing relatives who are not actually his or her children, then this constitutes f alse testimony for the purpose of obtaining benefits under the Act (in this case, a benefit for a relative), and is grounds for denial of the naturalization application.

74.1 General Information and Introduction to Form N-400

74.2 Part-by-Part Discussion of Form N-400 Data

74.2(a) Part 1: Information About You

74.2(b) Part 2 of the N-400

74.2(c) Part 3 of the N-400

74.2(d) Part 4 of the N-400

74.2(e) Part 5 of the N-400

74.2(f) Part 6 of the N-400

74.2(g) Part 7 of the N-400

74.2(h) Part 8: Allegiance to the U.S.

74.2(i) Part 9 of the N-400

74.2(j) Part 10 of the N-400

74.2(k) Part 11 of the N-400

74.2(l) Part 12 of the N-400

74.3 Closing Actions