DUI law and Immigration --Think before you drink!
|You can be deported and be denied a green card or citizenship if charged with a DUI in California|
DUI Law and Immigration
For purposes of this note we will be discussing immigration effects of a DUI on “aliens.” Alien refers to any person in the United States who is not a citizen of the United States and owes political allegiance to another. Any un-naturalized foreign resident in the US is an alien. The immigration laws of the United States are constantly evolving and the purpose of this note is to discuss some of the possible ramifications of a DUI conviction on an alien. Further, the information provided in this article is subject to change, we strongly urge anyone reading this article to consult an immigration attorney regarding their particular situation and not rely on any representations of law made in this note.
Certain convictions can affect the status of an alien whether legal (on any visa) or illegal in the US. a DUI conviction is one of them. If convicted, fingerprints and photographs of the alien are registered in the national database. This record is permanent and will be referenced every time the alien makes an application either to re-enter the US, for change of status, or to claim immigration benefits under certain types of visas. Certain visas have immigration benefits attached to them. Aliens on some visas may apply for benefits at certain times. These benefits include work permits, asylum, adjustment of status, naturalization, re-entry into the U.S. using a refugee travel document or lawful permanent resident card. Having a criminal conviction on the record can lead to a denial of re-entry into the US or to deportation from the US.
A DUI conviction has two aspects: administrative and criminal charges. The administrative aspect covers the suspension and seizure of the license on the spot before conviction if the driver fails or refuses a chemical test. Criminal aspect deals with the sentencing, penalties and fines. Most drunk driving convictions are classified as misdemeanors when no injury is involved, but could be classified as felonies in cases when serious injury or death occurs as a result. The penalties for a first time offender are severe but are far greater for second and third time convictions. Compared to citizens, the consequences of DUI convictions for aliens are far greater besides the loss of license and higher insurance costs.
There are two main consequences of DUI convictions for aliens: deportation and denial of admissibility into the United States.
DUI convictions have severe effects on the immigration status of legal aliens and green card holders. In some cases, DUI conviction can even result in deportation. Even long term permanent residents can be deported for DUI convictions. The United States Citizenship and Immigration Services may determine a DUI conviction is a crime involving moral turpitude and/or a crime of violence under current immigration laws. This can result in deportation from or inadmissibility to the US. A crime involving moral turpitude is sufficient grounds for deportation or inadmissibility, denial of adjustment during the green card process, or a finding of bad moral character at a naturalization interview. Generally, a crime must have an intent requirement in order to involve moral turpitude. Most state DUI laws define DUI as driving with a certain blood level of alcohol above the legally permissible under law. There is no reference to intent, in fact, in most States, DUI is a "general intent" crime. The mere fact of being drunk is enough.
Aliens can be deported if convicted of a crime involving moral turpitude carrying a maximum possible sentence of one year or more. DUI convictions can result in problems for aliens seeking admission or readmission to the US. An ordinary DUI conviction alone by itself will not result in denial of immigration benefits. Generally, an ordinary DUI conviction is not considered as a crime involving moral turpitude. But if it is combined with an aggravating factor like operation of the car following suspension of license, the DUI conviction will be treated as a crime involving moral turpitude.
If the DUI conviction is determined to be an aggravated felony even if the conviction, settlement or fine did not involve a crime involving moral turpitude, it could have a severe impact and adverse affect on the immigration process including deportation and a bar to re-entry. Aggravated felonies are violent or other crimes which result in sentencing of one year or more. An offense is an aggravated felony when it is a violation of Federal or State law. An offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years is also an aggravated felony. Even if the conviction was before the date the enactment of the specific ground of aggravated felony as a removable offense, the alien can be deported.
Section 237 of the Immigration and Nationality Act lists the various crimes for which an alien can be deported. It includes even minor crimes involving moral turpitude. Section 101(a)(43) deals with aggravated felonies. The immigration act has constantly been revised and updated to include more and more offenses as deportable or removable crimes. Existing statutes have been modified to lower the threshold for removal, thereby increasing the number of aliens subject to deportation or other sanctions.
Under immigration laws, a conviction has a broader meaning than under normal criminal law. Even a diversion program, in which no formal conviction is entered, may be considered a conviction under immigration law. Under immigration laws, conviction is a formal judgment of guilt or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. It does not matter if the sentence is actually served or is suspended.
A visitor to the US, if arrested or convicted for DUI, could experience difficulty in receiving certain immigration benefits. Even if it does not result in deportation or inadmissibility, it can affect the procurement of visa or adjustment of status. A DUI conviction can complicate the process at a US port of entry when arriving from abroad.
All states treat the first DUI offense as misdemeanors. A majority of States treat the third offense as felony. Many states now have laws which a second or third DUI conviction can result in a sentence of more than one year. The Board of Immigration Appeals has held that a DUI conviction was a crime of violence because it involved a substantial risk of harm to persons and property and a repeat DUI offender was an aggravated felon and ordered him removed. Matter of Magallanes, Interim Decision 3341 (BIA 1998) . Many States have become stringent with DUI laws. Causing death to a person while driving under the influence can result in a felony charge punishable with a state prison term. Some states have gone to the extent of incorporating manslaughter or murder statutes into their DUI laws.
One DUI conviction does not automatically disqualify an alien from applying for a visa. However lying about a DUI conviction on a visa application could result in fraud and misrepresentation which is sufficient cause for inadmissibility into the US.
When applying for naturalization, all aliens must disclose all previous convictions including DUI convictions. If an undisclosed conviction is later discovered by the US government, then citizenship can be revoked.
One of the eligibility criteria for naturalization is that the alien must be a person of good moral character which has been interpreted by courts as character that measures up to the standards of average citizens of the community in which the alien resides. Generally, an alien applying for naturalization must show that he has been a person of good moral character for the statutory period (typically five years or three years if married to a U.S. citizen or one year for Armed Forces expedite) prior to filing for naturalization. A person also cannot be found to be a person of good moral character if during the last five years he or she:
· has committed and been convicted of one or more crimes involving moral turpitude
· has committed and been convicted of 2 or more offenses for which the total sentence imposed was 5 years or more
· has committed and been convicted of any controlled substance law, except for a single offense of simple possession of 30 grams or less of marijuana
· has been confined to a penal institution during the statutory period, as a result of a conviction, for an aggregate period of 180 days or more
· has committed and been convicted of two or more gambling offenses
· is or has earned his or her principal income from illegal gambling
· is or has been involved in prostitution or commercialized vice
· is or has been involved in smuggling illegal aliens into the United States
· is or has been a habitual drunkard
· is practicing or has practiced polygamy
· has willfully failed or refused to support dependents
· has given false testimony, under oath, in order to receive a benefit under the Immigration and Nationality Act.
The USCIS will check on the alien's criminal records for any arrests, convictions or crimes that involve moral turpitude. Just one such conviction, depending upon the severity of the offense and date of conviction in relation to the five year good moral character requirement, is sufficient to affect the naturalization process even if the legal alien successfully avoids deportation or inadmissibility. A legal alien applying for a green card should be concerned about the possible effect of DUI conviction on the medical examination required to obtain a green card.
However, alcohol related offenses generally call for a heightened scrutiny due to issues raised by chemical dependence or addiction. The results of the medical examination could in some instances, result in deportation or inadmissibility or denial of green card.
DUI convictions also affect the job prospects of an alien. Almost all job applications seek information about prior criminal offenses. If the alien is a professional such as a nurse or an airline pilot, it can negatively affect the status of the alien's professional license. Additionally, renting an automobile may also be a problem depending upon the policies of the rental company. Also the alien's travel outside the US will be restricted. Certain countries like Canada have strict laws on admission of persons convicted of DUI.
Finally, if an alien is convicted of a crime they may choose to have their record expunged however the Department of Justice has an advisory opinion relating to expungements and their applicability to immigration and naturalization. At the end of the day, it seems the best way to avoid problems with immigration status is to stay out of trouble with the law or, if in legal trouble, hire a lawyer to fight for you.
Thank you to Lawyer Joe Adams for providing us with this article. -Speak with a lawyer to help you through this process.