This article discusses HOW a DUI Can affect your immigration status. Click on the links below to go directly to your topic of interest.
- IMMIGRATION CONSEQUENCES AFTER A DUI
- TOURIST VISA B1/B2 AND DUI
- GREENCARD HOLDERS AND DUI
- DUI AND ASYLUM
- DACA AND DUI
- RECENT CHANGES IN IMMIGRATION LAW
- CATEGORICAL APPROACH IN DUI CASES
If you got arrested for a DUI and you are not a US citizen, a DUI can have immigration consequences. Because there are numerous immigration petitions, relief and statuses available to applicants, DUI will have different consequences depending on your immigration status. DUI is a California offense, however, a conviction, can be used by federal immigration officials and judges to deny admission, revoke visas and status. In addition to the conviction, immigration service can use admission to the facts of the DUI instead of the actual conviction.
For persons who are in the United States on a tourist visa, a DUI convictions can result in the termination of their tourist status and a possible deportation.
For persons who are in the United States illegally, a DUI conviction will make no difference, since they are in already here illegally. The biggest possible issue for someone who is facing a DUI case is to avoid jail time. If someone hears illegally and sentenced to a DUI, he can be sentenced to jail time. If the jail notifies the immigration department or if the immigration does jail cross-reference checks before prisoners are released, an immigration hold can stop a person from release. Instead of release, you can simply be transferred to the immigration jail. If an immigration hold is placed, deportation proceedings are likely to be initiated by the US government.
For persons who are green-card holders (permanent residents), DUI carries almost no consequences. A single simple first DUI is not a deportable offense and therefore green is likely not to be affected. As evidence of being an alcoholic, a DUI can result in extra scrutiny by the immigration officials. Second DUI or multiple DUI convictions can result in the immigration service requesting a psychological evaluation. The psychological evaluation is to determine if there is a serious drinking problem. The referring doctor will see if the person is an alcoholic and submit a repot to the immigration service. If the psychologist or a doctor determines that you are a drunk, the immigration service can institute deportation proceedings.
There is usually no problem to pass the psychological evaluation if the person in fact not an alcoholic. Note that a green-card holder who travels outside of the United States can be stopped at the border if he has a DUI conviction. The border stop will determine if there are any DUI convictions. It does delay the process of admission into the United States but it will not prevent admission or create any other problems.
A decision from 9th federal circuit court makes DUI a crime that can affect asylum and withholding of removal application. On August 19, 2011 in its decision in Delgado v. Holder, the court makes serious multiple DUI convictions a possible bar for asylum.
Mr. Delgado’s had a very serious criminal history because he had 3 DUI convictions, each with very serious facts. His first DUI was what appears to be a felony DUI with an injury where he was sentenced to 1 years in the county jail. His second DUI conviction was also a felony where he was sentenced to 16 month in the state prison. His third DUI conviction was a felony DUI that he was sentenced to 2 years in the state prison. When Mr. Delgado was arrested for his third DUI, he was on parole for the 2nd DUI.
The immigration judge decided that the cumulative effect of all thee convictions makes Mr. Delgdo a “danger to the community of the United States”. That is the language from “Withholding of Removal” and “Asylum/Refugee” federal immigration statutes that do not permit application of withholding of removal/refugee/asylum statute to an alien who was convicted of “particularly serious crimes”.
The federal statutes are vague and do not specifically include DUI’s as specific crimes that permit denial of asylum or withholding of removal. The statutes only make aggravated felonies deportable, defined in the federal law, as “particularly serious crimes”. A person who spends cumulative 5 years in prison or jail will likely be deemed to be convicted of “particularly serious crimes”.
Delegado’s total aggregate sentence was 4 years 4 month, shorter then the 5 years qualification. The Circuit Court does not clarify why Delgado’s crimes were deemed “particularly serious”. Instead, the Court said that the facts from his cases make his convictions particularly serious crimes. For clarification, the Circuit court remanded Delagado’s case back to the Board of Immigration Appeals.
Regardless of what happened to Delgado, this decision is a first decision where a DUI, previously without any immigration consequences, can result in a denial of asylum and deportation. The law permits Attorney General to designate certain crimes to be “particularly serious crimes”, usually on a case by case basis. An average DUI will not cause a denial of an asylum application. Delgado’s case was different and he is a “danger to the community of the United States”.
The 9th circuit court of appeal is a lot harsher then the 3rd Circuit which limited “particularly serious crimes” only to “the aggravated felonies”. The prevailing view is now being adopted by the 9th circuit.
After this decision felony DUI convictions can permit “particularly serious crimes” analysis and deportation. It is not clear what specific facts makes a DUI “a particularly serious crimes”. The only clear-cut case is that where defendant on parole with three felony DUI cases involving serious injury and an aggregate sentence of 4 years 4 month, can be a bar to asylum.
If you have a open DUI case in Los Angeles and can qualify for this program, here is some information to consider before pleading guilty to a DUI in Los Angeles.
As you might know, under President Obama’s executive order, USCIS permits young undocumented immigrants to apply for a “deferred action”, a possible path to a U.S. Citizenship. Under this federal program, an applicant’s deportation (if he is in one) will be stopped and he will receive a work permit.
To qualify for deferred action, the applicant must meet the following requirements:
- Must be under 31 as of June 15, 2012;
- Must be in the United States before turning 16;
- Must continuously reside in the United States since June 15, 2007 (5 years before program was announced);
- Be in the US the day program was announced (June 15, 2012) and when applying;
- EWE before June 15, 2012 or have expired status on that day;
- Be in School or have a certificate of completion of high school or have GED or be a honorably discharged veteran
- Can’t have any felony convictions or any significant misdemeanors and not be a threat to US.
More side notes about the program:
- Applications are accepted starting August 15, 2012 and there are some people who now, thanks to it, have work permits.
- The deferred action is called so because it delays deportation as an act of prosecutorial discretion currently the deportation is delayed for 2 years – but it is subject to renewal and grants work authorization.
What is a significant misdemeanor? Bad news: looks like DUI will be considered a significant misdemeanor for purposes of this program. To qualify for this program you need to avoid a DUI conviction.
If you have an open DUI case in Los Angeles County, call drunk driving attorneys Los Angeles to talk about your case.
Here I also touch on the effect of recent United State Supreme Court decision on convictions for Health and Safety Code Section 11360. Although the offense does not DUI related, it could easily be charged on the same complaint as a DUI.
Under Immigration Law, a conviction for transportation of marijuana was viewed as an aggravated felony. Recent Supreme Court decision determined that it is not. In Moncrieffe v. Holder, a conviction for a marijuana distribution offense that fails to establish remuneration or more that a small amount (at least more then 1.3 grams) of marijuana, it is not an aggravated felony. Moncrieffe’s conviction is from Georgia, but, a parallel can be drawn to California law and specifically to Health and Safety Code sections 11359 and 11360 – both are commonly charged when law enforcement believes the illegal sale of marijuana occurs. Ironically, Health and Safety Code Section 11360 is considered a more serious offense under state law because the maximum punishment is 4 years. Under 11359, the maximum punishment is 3 years.
The Supreme Court decision rests on Controlled Substance Act statute that although prescribes punishment for marijuana distribution for up to 5 years as a felony, it provides an exception for small amount of marijuana for no remuneration. Under federal law, such excepted conduct is considered a crime of simple possession, a misdemeanor. Because Georgia distribution state statute did not require remuneration or more then small amount of marijuana – Moncrieffe’s conviction was determined by the Supreme Court to be not an aggravated felony. What striking is SC determination that actual conduct is irrelevant for purposes of analysis which must be only based on the language of the state statute “standing alone”.
The consequences of this ruling are important for any immigrant who is facing charges for marijuana distribution. Because the language of Health and Safety Code section 11359 implies remuneration, it is arguably less safe to plead to it as opposed to Health and Safety Code section 11360. Unless 9th circuit decides that Health and Safety Code section 11360 is somehow is not a statute within Moncrieffe’s decision, it appears HS 11360 is another alternative safe plea and is hugely better than 11359.
The concept of “categorical approach” is used in immigration law to determine if someone is deportable or not.
Under the categorical approach – only conduct covered in the statute of conviction and only with a conviction can an immigrant suffer immigration consequences. Under the categorical approach the immigration court is not permitted to consider mere conduct and to go “beyond” the conviction by reading the police reports.
In the last few years the categorical approach was severely limited by number of decisions and Attorney General opinion inSilva-Trevino 24 I&N Dec 687, that specifically permitted reading police reports.
Moncrieffe v. Holder, not only excluded conviction for distribution of marijuana from aggravated felony analysis because the statute did not specify remuneration and had a small amount, but it also reaffirmed categorical approach, a great win for defense lawyers criminal defendants with immigration issues. Importantly, the Moncrieffe court specifically rejected Matter of Aruna deviation from categorical approach. It also provided several arguments to challenge Silva-Trevino arguments. In short, not only did Moncrieffe allows settlement of certain cases without an offense being deemed an aggravated felony, but it also reversed a terrible trend in recent years of rejecting categorical approach in deportation analysis.
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