Can a DUI/DWI Lead to Revocation of Your Green Card?

A green card can indeed be revoked if the holder commits certain crimes, in some cases drunk driving convictions.

By , Attorney · Case Western Reserve University School of Law

Although a U.S. green card reflects someone's "permanent residence" in the United States, this can indeed be revoked if its holder commits certain crimes' in some cases DUIs or DWIs (driving while under the influence of alcohol or drugs). Revocation of a U.S. green card doesn't happen right away, however. If you're in this situation, you can expect to first be called into immigration court for removal proceedings. There, an immigration judge will hear your defense and decide whether or not to revoke your green card and deport you.

What Makes Someone Deportable Under U.S. Immigration Laws?

Having one or more DUIs on record is not, by itself, on the list of deportability grounds found in U.S. immigration laws. But it's a long and complicated list. And, depending on the facts of the case, it is possible for even one DUI to make a person deportable.

It all depends on whether there were aggravating factors in the case. These might include, for example, driving on a suspended license, or having a child present in the vehicle. Such factors could easily lead U.S. immigration authorities to conclude that you had committed a crime of moral turpitude (CIMT). A CIMT is enough by itself to make you deportable if it was committed within five years of your admission to the United States, and if it carries a possible prison sentence in your state of at least one year.

Or, if you already had a crime of moral turpitude on your record, having another one could make you deportable as someone who has committed two separate crimes involving moral turpitude.

If your DUI related to drugs rather than alcohol, you've got another deportability problem. You could be found removable for having committed an offense relating to a controlled substance.

Along the same lines, if an accident occurred due to the DUI, and someone was injured as a result, additional charges of aggravated assault or negligent homicide could lead to deportability problems. Courts so far have not been inclined to call such incidents "crimes of violence," but that is another ground of deportability. With a bad enough incident, it's not hard to imagine U.S. immigration authorities invoking this section of the law.

When Should You Speak to an Immigration Attorney?

Consult an immigration attorney BEFORE you take a plea deal or bargain or receive a conviction for a DUI. Some plea deals might seem advantageous on the criminal side, but leave you inadvertently admitting to a CIMT.

Judges, prosecutors, and defense attorneys are often unaware of the immigration risks involved in admitting to a CIMT, but an immigration attorney can sometimes work with your defense attorney to craft a sentence that doesn't involve a CIMT conviction.

When Might You Get Caught by U.S. Immigration Authorities Owing to the DUI?

Government agents, typically of Immigration and Customs Enforcement (ICE) sometimes visit prisons to see whether non-citizens are held there, and institute removal proceedings where appropriate. And it's common to see cooperation between the police and U.S immigration authorities. ICE agents also scan public records, so having no jail time doesn't mean you will escape their notice.

Barring that, simply applying for U.S. citizenship will lead U.S. Citizenship and Immigration Services (USCIS) to review your case. It could not only deny citizenship, but refer your case for removal proceedings if it sees a reason to. (See Applying for U.S. Citizenship With a DUI on Your Record.)

What Happens When a Green Card Holder With a DUI Is Sent for Deportation Proceedings?

Upon revoking the green card, the DHS will also initiate removal proceedings against you and serve you with a Notice to Appear (NTA) before an immigration judge. At the court hearing (in the Executive Office for Immigration Review, or EOIR), you will have the opportunity to contest the allegations against you and potentially be able to get your green card (lawful permanent residence) back, as described more below.

What to Do After Receiving a Notice to Appear

Once you receive a notice to appear in immigration court, you should immediately contact an immigration attorney. If your hearing date is soon and you have not yet contacted an attorney, you can appear at your first hearing, called a Master Calendar Hearing, at which time you can request the opportunity to do so.

Whatever you do, don't fail to show up at the Master Calendar or any other court hearing, or an order of removal will automatically be entered against you ("in absentia"), and you will be forced to leave the U.S., with a prohibition on returning for many years.

Because of the strictness and complexity of immigration laws, this is not a matter to attempt to handle yourself, perhaps hoping that the judge will show leniency if you come up with an excuse for your behavior. If you can't show a specific legal reason why you should keep your green card, you risk being removed (deported).

Requesting Relief from Deportation/Removal

In addition to disputing the overall allegations, you will want to apply for any relief available in the event that you are found removable, such as:

  1. Cancellation of Removal for Certain Permanent Residents, or in the alternative
  2. Voluntary Departure.

Cancellation of Removal for Certain Permanent Residents

Qualifying for the relief of cancellation of removal depends largely on the length of your presence in the United States before the incident took place and the number of years you have had a green card. For example, you may qualify for cancellation of removal by filing Form EOIR-42A with the court if:

  1. you have been a permanent resident (green card holder) for at least five years
  2. you have been in the U.S. for at least seven years before the incident occurred, regardless of your immigration status, and
  3. you have not been convicted of an aggravated felony.

If the immigration judge grants cancellation of removal, your green card will be reinstated. In some cases, meeting the above requirements for cancellation can be sufficient to warrant the judge's favorable discretion. However, if in addition to the DUI, other negative factors exist, the immigration judge will balance those adverse factors against the favorable ones. Some favorable factors include evidence of:

  • significant family ties in the U.S.
  • lengthy presence in the U.S., particularly if you have lived here since childhood
  • hardship to you and/or your family if you were to be removed/deported,
  • your value and service to the community, and
  • your rehabilitation since the DUI.

Upon considering all of the evidence and hearing from witnesses., the immigration judge will render a decision as to whether or not to cancel your removal. If the decision is not favorable, you will have the right to appeal the judge's decision to the Board of Immigration Appeals within 30 days. And again, you also have the right to, and are urged to seek, legal representation.

For more on this option, please see Cancellation of Removal in Deportation Proceedings.

Voluntary Departure

In case all else fails, your lawyer will probably want to add a request for voluntary departure to your claims before the immigration judge. This is simply a way of avoiding an order of removal, by saying that you will leave the U.S. on your own. The advantage is that it also avoids your becoming inadmissible to the U.S. for several years based on the order of removal. For more information, see Voluntary Departure vs Deportation.

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