Recidivist Conduct Outside the Ten-Year Period as an Aggravator of an In-Period DUI: Commentary on Luna-Corona v. Bondi (10th Cir. 2025)

I. Introduction

In Luna-Corona v. Bondi, No. 24-9522 (10th Cir. Nov. 17, 2025), the Tenth Circuit confronted a recurring and practically important question in immigration law: when a noncitizen seeks cancellation of removal and must show ten years of “good moral character,” to what extent may immigration adjudicators rely on criminal convictions that fall outside that ten-year window?

The petitioner, Adan Enrique Luna-Corona, is a long-term undocumented resident of the United States from Mexico. Although described by the immigration judge (IJ) as a good father, husband, worker, and friend, he had four convictions for driving under the influence (DUI): three from 1995–1996 and a fourth from conduct in 2016 culminating in a 2017 conviction. The 2016/2017 DUI fell within the statutory ten-year “good moral character” period, but the earlier DUIs did not.

The immigration judge and the Board of Immigration Appeals (BIA) concluded that Luna-Corona failed to establish good moral character for the required period, primarily because the 2017 DUI was his fourth such offense and thus “recidivist in nature.” Luna-Corona argued that this reliance on convictions more than twenty years old violated the statute’s ten-year temporal limitation and improperly tainted the good-moral-character analysis.

The Tenth Circuit rejected that argument. It held that the agency did not improperly “reach back” beyond the ten-year period as an independent basis to find a lack of good moral character. Instead, the court endorsed an analytic move borrowed from criminal sentencing doctrine: past convictions—even outside the statutory period—may properly aggravate the seriousness and moral significance of a new offense that is within the period, particularly in a recidivist context.

This commentary examines the decision in depth, with particular attention to:

The factual and procedural background of the case;
The Tenth Circuit’s summary disposition and key holding;
The precedents and authorities relied upon by the court;
The court’s use of criminal-law recidivist principles in an immigration moral-character context;
The implications for future good-moral-character determinations in cancellation-of-removal cases; and
A clarification of core concepts such as “good moral character,” “recidivism,” and the scope of judicial review.

II. Summary of the Opinion

A. Background and Proceedings Below

Luna-Corona is a native and citizen of Mexico who entered the United States without authorization many years ago. In 2017, the Department of Homeland Security (DHS) served him with a Notice to Appear, charging him as inadmissible under the Immigration and Nationality Act (INA) based on unlawful entry. He conceded removability before the IJ.

He then applied for cancellation of removal for certain nonpermanent residents under 8 U.S.C. § 1229b(b)(1), and in the alternative sought voluntary departure. The IJ denied cancellation of removal but granted voluntary departure.

The crux of the IJ’s denial was that Luna-Corona had not demonstrated that he was “a person of good moral character for the ten years immediately preceding [the] Court’s final decision.” The IJ acknowledged substantial favorable evidence: Luna-Corona was regarded as a good father, husband, hard worker, and reliable friend. But the IJ concluded that these positive equities were outweighed by a “long history of alcohol abuse and criminal conduct.”

Most saliently, the IJ focused on:

A 2017 conviction for DUI arising out of a 2016 incident (within the ten-year period); and
Three prior DUI convictions from 1995 and 1996 (far outside the ten-year period).

The IJ acknowledged that the earlier DUIs “fall outside the purview of the ten-year period for good moral character.” Nevertheless, the IJ stated that he could not view the 2017 DUI “in isolation” from the earlier DUIs, because doing so would “ignore the widely recognized relationship between recidivist behavior and one’s moral character.” The IJ characterized the 2017 conviction not as a “single lapse in judgment,” but as “a continuation of multiple lapses in judgment.”

The BIA dismissed Luna-Corona’s appeal. It agreed that:

The 2017 DUI conviction was the fourth such offense;
The other DUIs occurred in 1995 and 1996, “well outside of the relevant good moral character period”; and
The 2017 conviction was “recidivist in nature” and its “seriousness and repeat nature” outweighed the positive equities.

The BIA also rejected any due process challenge, finding that the IJ had properly considered all relevant evidence, including the “egregious” fact that Luna-Corona drove under the influence in 2016 despite earlier DUI convictions.

B. Issue on Petition for Review

Luna-Corona sought review in the Tenth Circuit. He argued that:

The IJ and BIA improperly considered DUI convictions more than twenty years old;
The ten-year statutory period for good moral character operates as a firm temporal boundary; and
Precedent did not allow reliance on such remote convictions when assessing good moral character for cancellation of removal.

He asked the court to remand the case so that the agency could reconsider his application for cancellation of removal without factoring in the decades-old convictions.

The government conceded, and the court agreed, that 8 U.S.C. § 1252(a)(2)(D) preserved jurisdiction because the challenge raised a “question of law” rather than a pure discretionary judgment. The only question properly before the court was the legal permissibility of considering the recidivist nature of the in-period DUI in light of older DUIs.

C. Holding and Disposition

The Tenth Circuit, in an opinion by Judge Hartz, denied the petition for review.

Key aspects of the holding include:

The BIA’s decision, on its face, applied the correct temporal standard: whether Luna-Corona “has been a person of good moral character for the requisite time period.”
The BIA explicitly recognized that the earlier DUIs (1995, 1996) fell outside the relevant period and did not treat them as independent acts within that statutory window.
However, the BIA was permitted to consider the 2017 DUI’s “recidivist nature”—that is, the fact that it was the fourth DUI conviction—when assessing the gravity and character implications of the in-period offense.
This approach is consistent with well-established principles of recidivist punishment in criminal law: enhanced consequences for a repeat offense are treated as a “stiffened penalty for the latest crime,” not as new punishment for prior offenses.
Thus, the agency did not violate the ten-year statutory limitation by using pre-period convictions to understand and evaluate the moral significance of the in-period conviction.

Because this resolved the core legal question, the court did not reach Luna-Corona’s arguments concerning other eligibility elements for cancellation of removal.

III. Legal Framework

A. Cancellation of Removal and Good Moral Character

Cancellation of removal for certain nonpermanent residents is governed by 8 U.S.C. § 1229b(b)(1). To be eligible, a noncitizen must show, among other things, that:

They have been physically present in the United States for a continuous period of not less than ten years immediately preceding the date of the application;
They have been a person of good moral character during that same ten-year period;
They have not been convicted of certain disqualifying offenses; and
Their removal would result in “exceptional and extremely unusual hardship” to a qualifying U.S. citizen or lawful permanent resident relative.

The opinion focuses exclusively on requirement (2): whether Luna-Corona “has been a person of good moral character” for the necessary period. The statute imposes the burden of proof on the noncitizen. As the court notes, under Garcia v. Holder, 584 F.3d 1288 (10th Cir. 2009), an alien bears the burden of persuading the adjudicator that they meet the statutory requirements for cancellation of removal, including the good-moral-character requirement.

B. The Ten-Year Period and Its Endpoint

Section 1229b(b)(1) requires good moral character “for a continuous period of not less than 10 years immediately preceding the date of such application.” The BIA, in Matter of Ortega-Cabrera, 23 I. & N. Dec. 793 (BIA 2005), interpreted “the date of application” to mean the date of the administratively final decision, not the date the application was first filed.

The Tenth Circuit notes this interpretation and cites the Fourth Circuit’s recent approval of a similar understanding in Orellana v. Bondi, 141 F.4th 560 (4th Cir. 2025), which held that a petitioner must maintain good moral character “until a final decision issued in his case, whether from an IJ or following an appeal to the BIA.”

In Luna-Corona, however, the exact endpoint of the ten-year period does not matter to the resolution of the case, because:

The 2016 conduct and 2017 DUI conviction occurred well within any plausible ten-year period (whether measured back from the 2017 application, the IJ’s 2019 decision, or the BIA’s 2024 dismissal); and
The earlier DUIs (1995–1996) are far outside the ten-year window under any of these endpoint dates.

Thus, the controversy is not about when the ten-year period ends, but whether remote, pre-period convictions can lawfully inform the evaluation of an in-period offense.

C. Good Moral Character as a Legal Standard

“Good moral character” is an inherently flexible and somewhat amorphous concept. The IJ, quoting Matter of Castillo-Perez, 27 I. & N. Dec. 664 (Att’y Gen. 2019), and United States v. Francioso, 164 F.2d 163 (2d Cir. 1947), described his task as assessing the noncitizen’s character against “the generally accepted moral conventions” of the community.

The court also cites Black’s Law Dictionary (12th ed. 2024), which defines “good moral character” as:

“a pattern of behavior that is consistent with the community’s current ethical standards and that shows an absence of deceit or morally reprehensible conduct.”

Under this framework, the inquiry is not strictly mechanical or limited to specific statutory bars (though such bars do exist in other sections, such as 8 U.S.C. § 1101(f)), but can include broader evaluative judgments about the person’s conduct, especially over the relevant period.

IV. Analysis of the Court’s Reasoning

A. Standard of Review and the Focus on the BIA’s Decision

The court begins by clarifying the scope of its review:

Under Aguayo v. Garland, 78 F.4th 1210 (10th Cir. 2023), the court reviews the decision of the BIA, not the IJ’s, except to the extent the BIA adopts the IJ’s reasoning.
Under Igiebor v. Barr, 981 F.3d 1123 (10th Cir. 2020), legal conclusions by the BIA are reviewed de novo.

The court emphasizes that in this case the BIA did not address the IJ’s separate discretionary determination that Luna-Corona did not merit cancellation as a matter of discretion. Accordingly, the Tenth Circuit limits its review to the BIA’s determination that Luna-Corona failed to show good moral character because of the recidivist nature of the 2017 DUI conviction.

This framing is important. It means:

The court is not second-guessing the ultimate discretionary denial of relief, but only the correctness of the legal standard applied to the good-moral-character element.
The court’s jurisdiction under 8 U.S.C. § 1252(a)(2)(D) is engaged because a “question of law” is raised, even though cancellation of removal is otherwise discretionary and often insulated from judicial review under § 1252(a)(2)(B).

B. How the Court Reads the BIA’s Opinion

A critical move in the Tenth Circuit’s reasoning is a close reading of the BIA’s decision to show that it did not directly violate the ten-year limitation. The court notes:

The BIA explicitly stated that Luna-Corona “has not established that he has been a person of good moral character for the requisite time period.”
The BIA noted his 2017 DUI conviction was his “fourth such offense,” but it also acknowledged that the earlier three DUIs occurred in 1995 and 1996—“well outside of the relevant good moral character period.”
When explaining why his positive equities did not carry the day, the BIA focused on a single negative factor: “his 2017 DUI conviction,” specifying that it “does not represent a ‘single lapse’ in judgment, but rather is recidivist in nature.”
The Board characterized “the seriousness and repeat nature of [his] offense” (singular) as outweighing his positive equities. The offense referred to is the 2016/2017 DUI.

On this reading, the BIA did not declare that Luna-Corona lacked good moral character during the 1990s, nor did it treat the remote convictions as if they themselves fell within the ten-year period. Rather, the BIA treated the earlier convictions as background that transformed the current DUI into a more morally serious event—a repeat offense despite prior convictions.

The Tenth Circuit similarly reads the IJ’s reasoning (as background but not as independently controlling). The IJ recognized that the 1995–1996 DUIs were outside the ten-year period but nonetheless found it appropriate to consider them as part of a pattern when evaluating the in-period DUI.

C. The Petitioner’s Statutory Argument and Its Rejection

Luna-Corona argued:

“The statutory period for good moral character determinations is 10 years” and “precedent does not provide exceptions to this limitation broad enough to encompass convictions from twenty years before the hearing date.”

He further asserted that BIA precedent “dictates that the [BIA] may only look at convictions within the good moral character period to make its determination.”

The court acknowledges that this argument has “some appeal” in the abstract: after all, the statute explicitly references a “continuous period of not less than 10 years.” But the court points out that Luna-Corona offers no caselaw that directly supports his effort to shield the significance of recidivist conduct from consideration.

The petitioner attempted to distinguish two key agency decisions relied on by the IJ:

Matter of Castillo-Perez, 27 I. & N. Dec. 664 (Att’y Gen. 2019), in which the Attorney General held that multiple DUI convictions can be highly probative of a lack of good moral character; and
Matter of Siniauskas, 27 I. & N. Dec. 207 (BIA 2018), which emphasized the seriousness of DUI offenses in immigration bond determinations.

Although Luna-Corona notes that these decisions may be factually distinguishable, it emphasizes that nothing in them is inconsistent with the BIA’s reasoning in this case. In particular, Castillo-Perez supports the notion that multiple DUI convictions can be compelling evidence of poor moral character, and it frames the inquiry in terms of “generally accepted moral conventions” of the community.

Crucially, the Tenth Circuit shifts the focus from how many years ago the earlier convictions occurred to what they reveal about the character implications of the new DUI:

“The BIA and IJ treated Petitioner’s 2017 DUI conviction so seriously because it was his fourth such conviction. In doing so, the BIA and IJ were not reflecting on what Petitioner’s moral character had been back in 1995 or 1996. Rather, they were saying that his moral character was bad in 2017 because he was unable to keep himself from repeating serious misconduct for which he had been convicted.”

In other words, the temporal argument fails because the court sees the older convictions as evidence about the nature of the current misconduct, not as separate disqualifying acts that themselves need to fall within the ten-year window.

D. Importing Recidivist Doctrine from Criminal Law

The most significant doctrinal move in the opinion lies in its use of longstanding criminal-law principles regarding recidivism. The court cites several Supreme Court cases:

Witte v. United States, 515 U.S. 389 (1995): The Supreme Court explained that an “enhanced punishment imposed” for recidivism is not an “additional penalty for the earlier crimes.” Instead, it is a “stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.”
Moore v. Missouri, 159 U.S. 673 (1895): The Court, more than a century ago, reasoned that:
“the last offense … is rendered more severe in consequence of the situation into which the party had previously brought himself.… [T]he punishment for the second offense is increased, because, by his persistence in the perpetration of crime, he has evinced a depravity, which merits a greater punishment.… [R]epetition of the offense aggravates guilt.”
United States v. Rodriguez, 553 U.S. 377 (2008): The Court reaffirmed that repeat-offender statutes “penaliz[e] only the last offense committed by the defendant,” even though prior offenses are used as triggers or aggravators.

The Tenth Circuit imports this logic into the immigration context: when the BIA weighed the 2017 DUI heavily against Luna-Corona’s claim of good moral character, it was not punishing him anew for the 1995–96 DUIs. Rather, it was treating the 2017 offense as more serious—and more revealing of his character—because it represented a repeat offense committed despite earlier arrests and convictions.

Put differently:

The legal focus remains on conduct within the ten-year period (the 2016/2017 DUI);
The older convictions are relevant insofar as they demonstrate that the in-period misconduct is not a one-time aberration but evidence of a recurring disregard for the law and the safety of others; and
This approach, the court says, is “well explained” by established recidivist jurisprudence and does not conflict with the ten-year temporal limit in § 1229b(b)(1).

E. Narrowness of the Holding and What the Court Does Not Decide

It is important to recognize how the court narrows its analysis:

The decision does not hold that immigration adjudicators may freely deny good-moral-character findings based solely on conduct entirely outside the ten-year window, where there is no relevant adverse conduct within the period.
Nor does it define precisely how remote a prior conviction can be and still operate as a meaningful aggravator. It simply notes that recidivist principles can apply even where older convictions are decades old, as long as they credibly inform the character assessment of the in-period offense.
The court also does not address the interaction between this reasoning and the more specific statutory provisions defining per se bars to good moral character in 8 U.S.C. § 1101(f). Those provisions can sometimes govern directly, but they are not at issue here.

The court’s approach is thus relatively targeted: when there is an offense within the ten-year period, it is permissible to take into account earlier similar offenses—even outside the period—to evaluate what the in-period offense says about the person’s moral character during the relevant time.

F. Disposition of Other Arguments

The opinion also briefly addresses and rejects any suggestion of a due process violation, noting the BIA’s conclusion that the IJ “properly considered all relevant evidence” and that the 2016/2017 misconduct, viewed against the backdrop of earlier DUI convictions, was an “egregious factor.” The Tenth Circuit does not dwell on this, likely because once the legal permissibility of considering recidivist context is established, there is no evidently improper evidentiary or procedural defect.

Having resolved the key legal question against the petitioner, the court explicitly states that it need not address his arguments regarding other eligibility requirements for cancellation of removal. The petition is therefore denied in full.

V. Impact and Implications

A. Practical Effect on Good-Moral-Character Determinations

The central practical takeaway from Luna-Corona is this:

In the Tenth Circuit, immigration adjudicators may treat a conviction within the statutory ten-year good-moral-character period as significantly more serious—and more indicative of bad moral character—by reference to similar convictions that occurred outside the period, especially in a recidivist DUI context.

This has several implications:

Remote convictions retain indirect force. Even when decades old, prior convictions can still shape how a new offense is understood, eroding arguments that older conduct is effectively “quarantined” by the ten-year limit.
The “single lapse in judgment” argument is weakened. Many noncitizens argue that an isolated offense within the ten-year period should not, by itself, defeat good moral character, particularly if they have strong equities. In a recidivist context, Luna-Corona undercuts the ability to portray an in-period DUI as a one-off lapse if earlier DUIs exist, even if those are outside the period.
Agencies will likely draft decisions more carefully. BIA and IJ decisions can be expected to frame adverse findings in terms of the in-period offense, using older convictions to characterize it as recidivist, rather than relying directly on out-of-period conduct as independent bases for lack of good moral character.

B. Reinforcement of the DUI–Immigration Nexus

This decision sits atop a growing body of authority that treats DUI offenses as having serious moral and public-safety implications in immigration law:

Matter of Siniauskas underscored the seriousness of DUIs in bond determinations;
Matter of Castillo-Perez held that multiple DUIs can be powerful evidence of poor moral character for discretionary relief; and
Luna-Corona now reinforces that even old DUIs can magnify the moral weight of a more recent DUI in good-moral-character assessments for cancellation of removal.

Noncitizens with even one in-period DUI and a history of earlier DUIs now face a particularly steep uphill battle in establishing good moral character in the Tenth Circuit, notwithstanding positive equities such as family ties and employment history.

C. Litigation and Advocacy Strategy

For practitioners, Luna-Corona suggests several strategic considerations:

Focus on rehabilitation and changed circumstances. Where older convictions exist, advocates should marshal strong evidence of rehabilitation—treatment, sobriety, clean driving records, community contributions—to argue that the in-period offense is not indicative of current character (or that no in-period offense exists).
Contest recidivist framing when possible. If earlier convictions are dissimilar in nature or occurred under significantly different circumstances, counsel may argue that labeling an in-period offense “recidivist” is factually inaccurate or overstated.
Frame older convictions as attenuated. Even under Luna-Corona, there may be room to argue that extremely remote convictions (e.g., from adolescence or a vastly different life stage) are too attenuated to fairly characterize a current offense, especially absent intervening misconduct.
Preserve statutory-interpretation arguments. Although Luna-Corona is binding in the Tenth Circuit, counsel in other circuits, or seeking en banc or Supreme Court review, may argue for a stricter reading of the ten-year limitation in § 1229b(b)(1), particularly where no in-period offense is present.

D. Interaction with the Broader Good-Moral-Character Regime

While the opinion does not directly interpret 8 U.S.C. § 1101(f), that statute is the broader source of the “good moral character” concept and contains categorical bars (for example, certain criminal offenses, habitual drunkenness, etc.) as well as a catch-all provision. Historically, in the naturalization context, Congress has allowed adjudicators to consider conduct outside the standard statutory period as relevant background, even if the core focus is on a defined look-back period.

Luna-Corona fits comfortably within that general pattern: temporal limitations define the period to be affirmatively shown, but they do not necessarily erect a total evidentiary firewall against pre-period conduct, especially where that conduct logically bears on the meaning of in-period behavior.

At the same time, the case leaves open how far this principle might be taken. Would an adjudicator be permitted to deny cancellation solely based on a terrible but extremely remote crime, if the noncitizen’s conduct within the ten-year period is otherwise irreproachable? Luna-Corona does not answer that question because it involves a new, in-period DUI that is itself blameworthy and dangerous.

E. Normative and Policy Considerations

The court’s reliance on recidivist doctrine highlights enduring normative debates:

Public safety versus second chances. Recidivist DUI behavior understandably raises public-safety concerns, and the court’s reasoning reflects societal condemnation of repeated drunk driving. Yet it also underscores that, in immigration law, older mistakes can exert a long shadow if the person later reoffends.
Fairness of indefinite consequences. Critics might argue that using 20-year-old convictions to magnify the consequences of a newer offense risks allowing distant past conduct to exert disproportionate influence, especially when that past may have occurred under very different life circumstances. The court’s response is that the real focus is on the recent offense and the individual’s failure to internalize the lessons of past punishment.
Clarity versus flexibility. A bright-line rule strictly excluding any consideration of pre-period conduct would be clearer but less responsive to the nuances of character evaluation. Luna-Corona opts for flexibility, at the cost of some uncertainty about how far back adjudicators may look.

VI. Complex Concepts Simplified

A. What Is “Cancellation of Removal”?

Cancellation of removal is a form of relief that allows some noncitizens who are otherwise removable to remain in the United States and obtain lawful permanent resident status. For certain nonpermanent residents, the key requirements include:

Ten years of continuous physical presence in the U.S.;
Ten years of good moral character;
No conviction for certain disqualifying crimes; and
Exceptional and extremely unusual hardship to a qualifying relative if the person is removed.

Even if these statutory prerequisites are met, the relief is discretionary. The immigration judge and BIA can still deny it as a matter of discretion. In Luna-Corona, the court does not reach this discretionary aspect because it upholds the agency’s finding that one prerequisite—good moral character—was not satisfied.

B. What Does “Good Moral Character” Mean in Practice?

“Good moral character” is essentially a judgment about whether a person’s behavior over a defined period is consistent with the community’s ethical standards. It is not a demand for perfection, but significant or repeated criminal conduct—especially involving danger to others—often weighs heavily against a finding of good moral character.

In this case, the repeated nature of Luna-Corona’s DUI convictions caused the IJ and BIA to conclude that he had not shown good moral character, even though he had strong family ties and a reputation for hard work and responsibility in other areas of life.

C. What Is “Recidivism,” and Why Does It Matter?

“Recidivism” means repeatedly committing similar offenses over time. Many criminal laws impose harsher penalties on repeat offenders. The logic, as the Supreme Court has explained, is that:

Repeating an offense after prior punishment shows a deeper level of disregard for the law and community safety;
Repeat offenses demonstrate that earlier sanctions did not change the person’s behavior; and
This “persistence in the perpetration of crime” reveals a greater degree of culpability or “depravity.”

In immigration law, this same logic is now explicitly applied—at least in the Tenth Circuit—to moral-character evaluations. A single DUI might sometimes be argued as an aberration; a fourth DUI, particularly after a long history of similar conduct, is much harder to characterize as a momentary lapse.

D. Why Could the Tenth Circuit Review This Case at All?

Congress has limited judicial review of many discretionary immigration decisions through 8 U.S.C. § 1252(a)(2)(B). However, § 1252(a)(2)(D) restores jurisdiction over “constitutional claims or questions of law.”

In Luna-Corona, the petitioner argued not that the IJ and BIA exercised their discretion poorly, but that they applied the wrong legal standard by considering convictions outside the ten-year period. That is a classic “question of law.” Therefore, the Tenth Circuit had jurisdiction to review and decide whether the agency’s legal interpretation of the good-moral-character requirement was correct.

VII. Conclusion

Luna-Corona v. Bondi establishes an important and relatively nuanced precedent in the Tenth Circuit’s immigration jurisprudence. The court holds that, in assessing whether a noncitizen has shown good moral character for the ten-year period required for cancellation of removal, immigration adjudicators may:

Focus on conduct that occurred within the ten-year window (here, a 2016/2017 DUI conviction); and
Consider prior, out-of-period convictions as evidence that the in-period offense is a recidivist one, thereby increasing its moral and legal gravity.

By analogizing to well-settled criminal-law principles on recidivist sentencing, the Tenth Circuit concludes that using old convictions to “aggravate” the meaning of a new offense does not violate the statutory ten-year limitation. The enhanced moral condemnation remains rooted in the in-period misconduct, not in the remote crimes themselves.

For noncitizens with a history of DUI convictions, particularly those who reoffend within the ten-year period, Luna-Corona signals a harsh reality: even decades-old DUIs can significantly undercut claims of good moral character by transforming a new DUI into compelling evidence of persistent disregard for the law and community safety.

At a broader doctrinal level, the decision reinforces a flexible, context-sensitive understanding of “good moral character,” while preserving the statutory temporal framework. It leaves unresolved the harder questions about whether and how far out-of-period conduct alone might justify an adverse moral-character finding when there is no new misconduct. But it clearly affirms that once a new offense occurs, the shadow of the past can—and often will—fall heavily on the present.