CAN AN IMMIGRANT BE DEPORTED FOR A DUI?

When you live in the United States, you’re expected to obey the laws.  Failure to obey the laws has consequences from the criminal justice system.  And if you’re an immigrant, failure to obey the laws can also result in consequences regarding your immigration status. 

If an immigrant is caught drinking and driving, the immigration consequences will depend on the underlying crimes the immigrant is convicted of and whether it triggers criminal liability under immigration laws.  A DUI conviction – even one where someone was seriously injured or killed – does not usually meet the criminal requirements for deportation.  However, there may be other attendant circumstances that taken together with the DUI conviction could result in deportation.

If you or a loved one face DUI charges with the potential for immigration consequences, it’s extremely important to have both a good criminal defense attorney and a skilled immigration lawyer by your side.  At The Vegas Lawyers, we can help you navigate the complexities of criminal charges that carry immigration consequences.  Call us today at (702) 707-7000 for a free and confidential consultation.       

Crimes That May Trigger Deportation Under Federal Immigration Laws

Immigration laws specify that immigrants can be deported for conviction of any crime involving “moral turpitude” or which is defined as an “aggravated felony” by immigration statutes.

  • What Is A Crime Of Moral Turpitude?  Generally speaking, moral turpitude crimes involve “both reprehensible conduct and a culpable mental state.”  They’re crimes involving specific intent to do an act, deliberateness, or recklessness.
  • What Qualifies As An Aggravated Felony?  There are more than 20 types of conduct that qualify as “aggravated felonies.”  One aggravated felony that has been the subject of interpretation by the courts is a “crime of violence.”  Courts have determined that a crime of violence is one that has “use of force” as an element of the crime.  Crimes of violence can also include offenses where there is a “substantial risk that force will be used.” 
arrested for a DUI

A DUI conviction is not generally considered a crime of moral turpitude.  And driving while under the influence of alcohol is not listed as an aggravated felony.  But in the case of a motor vehicle accident involving serious bodily injury where an immigrant is convicted of DUI, can that conviction be a crime of violence and thus an aggravated felony?  The question was addressed by the United States Supreme Court in 2004.  

A DUI Is Not A Crime Of Violence

In Leocal v. Ashcroft, the Supreme Court decided that DUI offenses are accidental and do not require a person to use or anticipate using force so they do not violate federal immigration laws.

In that case, Duan Le, a citizen of Vietnam, was convicted of a DUI that caused serious bodily injury in an accident.  Deportation proceedings were initiated against him under immigration laws categorizing the DUI as a “crime of violence” and thus an aggravated felony.  The Supreme Court, with conservative Chief Justice William H. Rehnquist writing the majority opinion,  determined that a “crime of violence” is one where the nature of the crime itself suggests that force toward a person or property will be used or will very likely be necessary in order to accomplish the objective of the criminal conduct. 

Although the consequences of a DUI can result in force being used against another person or property, the use of force is not contemplated in order to commit the crime.  Rather, it is only incidental to the crime itself.  In other words, a DUI can be committed without the use of force and, therefore, it’s not considered a violent crime for immigration purposes.

Based upon its ruling in the Leocal case, the Supreme Court has determined that DUI offenses, except when involving purposeful intent, are considered accidental and not “crimes of violence” under federal immigration laws.  

How A DUI Can Affect Immigration Status

Under current immigration laws, getting a DUI should not result in deportation.  But getting a DUI in combination with other illegal conduct just might.  DUI convictions can be evidence of the quality of a person’s character.  And you still have to follow the rules even though immigration laws may have changed in your favor regarding an old DUI.

immigrates pulled over for a DUI

DUI that involves other criminal conduct – If a DUI includes driving while impaired by a controlled substance – such as marijuana – it can result in a deportable crime.  Many people forget that, although marijuana use is legal under many state laws, it’s still considered a Schedule I narcotic under federal law. 

Similarly, if a DUI includes the illegal possession of a firearm, it too can lead to deportation.  The key in these scenarios is that the DUI by itself is not what leads to the deportation, it’s the DUI in combination with other illegal activity.     

Good moral character – In 2019, US Citizen and Immigration Services (USCIS) adopted as policy the Attorney General’s opinion in Matter of Castillo-Perez.  When an immigrant is applying for an immigration benefit that requires good moral character, having 2 or more DUIs creates a presumption that the person does not have good moral character.  The presumption must be overcome by the immigrant showing evidence of good moral character or the immigration benefit will be denied.

Invalid removal does not justify illegal re-entry – For the immigrants deported for a DUI prior to Leocal vs. Ashcroft, it will not be a defense to illegal re-entry that your removal order is now invalid.  The Supreme Court recently decided in United States vs. Palomar-Santiago that an invalid removal order does not negate the need to go through the prescribed process to challenge the validity of the original deportation. 

Getting a DUI as an immigrant can seriously impact your immigration status.  How the crime is charged and your prior criminal history can affect your eligibility to obtain future immigration benefits.  Good legal advice and representation will be critical to effectively dealing with both state criminal laws and federal immigration laws. The resolution of your DUI can have significant consequences on your immigration status both currently and in the future.