Deportation vs. Inadmissibility After a DUI

Whether you are in the process of applying for a U.S. visa or green card (U.S. lawful permanent residence) or already have some immigration status, getting a DUI (or DWI) conviction can be damaging to your future. While nothing is automatic, a drunk driving conviction (or multiple convictions) can, under certain circumstances, bar you from receiving approval for a U.S. visa or green card, cause you to become removable from the U.S. after coming here with some lawful status, or prevent you from eventually becoming a U.S. citizen.

What's often confusing to people is that two separate sections of the U.S. immigration laws govern whether a crime bars you from U.S. entry or whether it will lead to your being kicked out of the United States. These are the laws of inadmissibility and the laws of deportability.

We'll briefly review these various concepts below, but no one should attempt to analyze their own case, or make immigration-related decisions, based on this discussion. See an experienced immigration lawyer for a full analysis and legal advice.

What Type of Crime Is a DUI/DWI?

DUI stands for "driving while under the influence," usually of alcohol or drugs (both the legal and the illegal sorts). Some states call this crime a DWI, for driving while intoxicated.

The facts around each person's DUI can be vastly different, however, and will be taken into account when determining what the conviction means for immigration purposes. In a simple DUI, for example, the person might not have high breath alcohol results, and might have simply been pulled over for weaving on the road. But many DUIs also involve an accident, reckless driving, injury to others, or other aggravating factors, perhaps leading to multiple criminal convictions.

Does a DUI Make You Inadmissible (Unable to Get a Visa or Green Card)?

Again, inadmissibility is the set of laws that can bar a person's entry to the U.S.; either when applying for an immigrant or nonimmigrant visa from overseas, or applying for a renewal, change, or adjustment of status while in the United States. But even a lawful permanent resident (green card holder) can be found inadmissible upon returning to the U.S. from a trip outside, if the person either stayed away for 180 days or more, committed a crime before departing, or committed a crime while away.

First, let's look at the potentially relevant grounds of inadmissibility (from I.N.A. Section 212). These include:

• having committed one or more crimes of moral turpitude (CMTs), which usually means an intentional crime that was base, vile, or contrary to social norms
• having been convicted of two or more crimes with a sentence of at least five years
• being a drug or alcohol addict (which could trigger inadmissibility on medical grounds), or
• having committed a crime involving a controlled substance; or even having personally admitted to a controlled substance violation, without having actually been convicted of the crime.

A single DUI conviction, with no aggravating factors, is not usually found to fit any of the above descriptions. However, multiple DUIs, or DUIs with aggravating factors, can be sufficient to meet one of more of the above grounds, making the person inadmissible to the United States. If they apply for a visa or green card and do not qualify or apply for a waiver of inadmissibility, they will be denied.

Does a DUI Make You Deportable (If You're Already a U.S. Permanent Resident)?

Being deportable means that, despite possibly having a green card or U.S. visa, you can be placed into immigration court (removal) proceedings, where your U.S. immigration status may be revoked (taken away). You will then be deported from the United States and barred from returning for many years.

The possibly relevant grounds of deportability (per I.N.A. Section 237) for someone with a DUI on record include:

• conviction of an aggravated felony, which includes serious crimes such as rape, murder, and trafficking, but also includes various other crimes such as theft, obstruction of justice, use of false documents, smuggling, or forgery, where the sentence was, or in some cases could have been, one year or more (the fact that your state's law might have called the crime a misdemeanor doesn't matter)
• conviction of a crime of moral turpitude, committed within five years of admission, for which the sentence could have been one year or more
• a crime of violence
• conviction of two separate crimes involving moral turpitude, or
• conviction of an offense relating to a controlled substance (other than a single offense involving possession for one's own use of 30 grams or less of marijuana).

Again, the circumstances of the case, and whether the person has other crimes on record, will make a difference in whether the DUI results in deportation.

Could a DUI Prevent You From Receiving U.S. Citizenship?

In order to go from having a green card to becoming a U.S. citizen (through the application and examination process known as naturalization), you need to prove that you've had good moral character for at least the last five years before submitting your application. With a DUI on your record, that gets more difficult.

You'd probably do best to wait to apply until enough time has gone by that you have established a recent clean record. Also take steps to deal with any underlying issues, perhaps by signing up for treatment, and complying with any court-ordered terms of probation, restitution, or other programs.

Do Not Try to Hide a Criminal Conviction From U.S. Immigration Authorities

It can be tempting to try to hide a conviction from U.S. immigration authorities, particularly when applying for benefits. (For people who already have green cards, being arrested often leads directly to being placed in removal proceedings.) However, lying about such a thing tends to backfire.

For one thing, the fingerprint check that most all applicants for immigration benefits must go through is likely to reveal the conviction. For another, lying in order to obtain immigration benefits is itself a ground of inadmissibility, and will be seen as a sign of bad moral character, thus leading to denial of benefits or refusal to believe other statements that you make.

If you are applying for or have a green card, and have had any sort of trouble with the law, speak to an immigration attorney at once. The immigration attorney can advise you based on the details of your situation, and can advise your criminal attorney on the immigration impact of such things as deferred prosecution or successful completion of probation. Don't rely on your criminal attorney's advice alone. Very few criminal attorneys understand the often surprising immigration consequences of criminal convictions.