While many individuals are aware of the serious consequences of receiving a DUI, these consequences are even graver for non-citizens. In addition to the same consequences of possible jail time, fines and a loss of driving privileges, a non-citizen’s conviction of a DUI may result in a finding that he or she is inadmissible or is removable.
Types of Consequences
The type of immigration proceedings that the immigrant is going through make a big difference as to how a conviction will impact him or her. For example, if the individual is pursuing adjustment of status to acquire permanent resident status, his or her application may be denied. Similarly, a person who is applying for naturalization may be found to have bad moral character. For an individual who has not been in immigration proceedings, an argument may be made to have this individual removed from the United States.
According to the Immigration and Nationality Act, a non-citizen may be deported from the United States if he or she is convicted of a crime of moral turpitude. Even if a person is convicted of multiple misdemeanor or felony DUI offenses, this crime is not usually considered one that involves moral turpitude. In order for a DUI to be considered a crime of moral turpitude, it must contain other elements, such as knowingly driving on a suspended license.
Additionally, the Immigration and Nationality Act states that a non-citizen can be deported from the United States if he or she is convicted of an aggravated felony. This is defined as a crime of violence that has an imprisonment term of one year or more. For some time, there was disagreement as to whether a DUI charge could be considered an aggravated felony. However, in Leocal v. Ashcroft, a 2004 case before the United States Supreme Court, the justices ruled that a DUI is not a crime of violence and not an aggravated felony. This holding resulted even though the non-citizen received a sentence of more than one year.
When DUI Can Be Grounds for Inadmissibility or Removal
If a DUI constitutes a controlled substances conviction, it can be grounds for a finding of an immigrant being inadmissible or removable. This can occur when the person was under the influence of drugs and not alcohol at the time of arrest. However, one important note is that the crime must be construed as a controlled substances conviction under federal, and not state, law. State-defined controlled substances may be different from those on the federal list. The record of conviction may identify the substance that was involved. Immigration attorneys may recommend that a client avoid accepting a plea bargain that is considered to be under a controlled substances act or by asking that alcohol be listed in the conviction record.
Evidence of Alcoholism
The Immigration and Nationality Act also allows a non-citizen to be found inadmissible or removal if there is evidence of alcoholism. While a single DUI conviction is likely not strong enough to raise this inference, multiple convictions of DUI may be used to demonstrate this evidence. Likewise, a conviction for a DUI that resulted in bodily injury can also be considered as evidence that the individual has a dangerous health condition that is medical grounds of inadmissibility. This is the case when the individual’s physical or mental disorder causes a threat to the property, safety or welfare of the individual or others.
Good Moral Character
Individuals who apply for naturalization must undergo a naturalization interview. The Bureau of Citizenship and Immigration Services can consider any criminal conviction as it determines whether a citizen applicant has good moral character. Additionally, if the conviction caused the individual to be placed on probation, he or she is ineligible to naturalize until his or her probation has terminated. However, the individual can apply after his or her probation has ended. By establishing an individual’s good moral character, rehabilitation and other positive factors, an individual may be able to overcome a discretionary finding that he or she lacks good moral character. For example, the petitioner may be able to show that a significant period of time has occurred without further incident, a steady work history and only one conviction demonstrate good moral character.
Additionally, a DUI can establish a negative discretionary factor. In this manner, it may cause a person to be denied discretionary immigration benefits.