By Evita Tolu, Immigration Attorney
My phone rings and my long-time immigrant client is telling me frantically that he was arrested last night for drunk driving. The police arrested him, charged him with a DUI offense, punched a hole in his driver’s license, and gave him a bunch of forms once the bail was posted. By morning the immigrant client is in shock.
Once the shock wears out several important decisions must be made. There are three distinct areas the client’s attorney needs to concentrate on: immigration consequences of the DUI (or DWI, OUI, OWI, DWAI, depending on the state) charge, and the upcoming court process, which will involve both penalties and sentencing and an administrative process involving license revocation/suspension by the Bureau of Licensing or Department of Motor Vehicles.
(This article addresses immigration law issues only. See DrivingLaws.org for criminal and administrative penalties.)
A DUI record of arrest, criminal charge, and conviction may affect the status of an immigrant in the United States. When arrested, fingerprints and photographs of the alien are taken and registered in the national database. This record is permanent and will be referenced every time the alien makes an application for an immigration benefit -- for example applies for work authorization, visa renewal, asylum, adjustment of status, naturalization, or admission into the United States with a refugee travel document or a green card.
Having a criminal conviction on record can lead to a denial of reentry into the United States, or removal or deportation from the United States.
The immigration consequences of the client’s plea or conviction usually depend on specific facts of the crime, the client’s prior violations (if any), and where the client is in the immigration process. There are three main consequences of DUI convictions for aliens: deportation, denial of admissibility into the United States, and denial of citizenship.
Under the immigration law, conviction is defined very broadly. Pursuant to Section 101(a)(48) of the Immigration and Nationality Act the term conviction, with respect to an alien, means:
Any reference to a term of imprisonment or sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of the imprisonment or execution of that imprisonment or sentence in whole or in part.
An experienced immigration attorney must review carefully the particular state code and consider the criminal statute involved word for word, element for element. The attorney must also work with the court system to try to arrange that the client’s drunk driving crime does not meet the definition of conviction under immigration law. There are several strategies that might help your immigrant client under these circumstances. This article discusses the situation where your client already pled or was found guilty of a DUI offense and the immigration consequences of the guilty DUI plea or guilty verdict.
In the case of Leocal v. Ashcroft, the issue before the Supreme Court was whether a DUI crime is a crime of violence (deportable offense) for the purposes of an aggravated felony conviction. The Supreme Court considered the case of a lawful permanent resident (the “LPR”) who was convicted in Florida of two counts for driving under the influence and causing serious bodily injury. The Florida DUI statute penalizes as a third-degree felony the operation of a motor vehicle while under the influence, where it causes serious bodily injury to another.
In Leocal, the statute required proof of driving under the influence but it did not require a specific mental state. Nevertheless, the LPR was placed in removal proceedings, charged as an aggravated felon for a crime of violence. The Supreme Court analyzed the definition of “crime of violence” codified in 18 USCA 16(a). This section defines the crime as an offense that has an element of the use, attempted use, or threatened use of physical force against the person or the property of another. The Supreme Court concluded that this definition demands a higher degree of intent than mere negligent conduct. The Court said that the “use of physical force” language in 18 USCA 16(a) aimed at a category of violent, active crimes that cannot be said naturally include DUI offenses.
The Court’s analysis suggested that the a crime of violence is an offense that presents significant risk that the intentional use of force will arise in the course of committing a crime. The Supreme Court reversed Leocal’s removal order.
In June of 2009 in Hernandez-Perez v. Holden, the Eighth Circuit Court of Appeals found that a conviction under Iowa's DUI statute coupled with a conviction for child endangerment (the child was in the car) was a crime of moral turpitude preventing Hernandez-Perez from seeking cancellation of removal.
Hernandez-Perez, a citizen of Guatemala, entered the United States without inspection. While in the United States, he pled guilty in Iowa state court to one count of operating a vehicle while intoxicated and one count of child endangerment resulting in bodily injury pursuant to several Iowa statutes. Under Iowa law, a person is guilty of child endangerment if he is “the parent, guardian, or person having custody or control” over a minor child and “[k]nowingly acts in a manner that creates a substantial risk to a child or minor's physical, mental, or emotional health or safety.” Iowa Code § 726.6. The Eighth Circuit explained the term “knowingly” to mean actions with the knowledge that defendant was creating a substantial risk to the child's safety.
The phrase “crime of moral turpitude” is not defined in the Immigration and Nationality Act (the “I.N.A.”). The Eighth Circuit explained that the phrase “moral turpitude” refers to conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. The acts which involve moral turpitude are the acts which are accompanied by a vicious motive or corrupt mind, “the presence or absence of a corrupt or vicious mind is not controlling.”
Generally, to determine whether a conviction qualifies as one involving moral turpitude, the courts look at the language of the statute, and not at the underlying facts. Critical to a finding of moral turpitude is the intent required by the statute under which the petitioner is convicted. Although moral turpitude is typically found in crimes committed intentionally or knowingly, the courts have held that reckless conduct may be sufficient if an aggravating factor is present.
In Hernandez-Perez, the Eighth Circuit observed that even if the statute did not require a specific intent to cause harm, it required that the violator consciously disregard a substantial and unjustifiable risk. Although the court recognized that a drunk driving offense on its own “almost certainly does not involve moral turpitude,” it concluded that the statute's requirement that the defendant “create a grave risk of death to another person,” was an aggravating factor sufficient to find moral turpitude.
Hernandez-Perez was ordered to be removed from the United States.
When an individual who is physically present in a foreign country applies for an immigrant or nonimmigrant visa at a U.S. consulate abroad, the grounds of inadmissibility codified in Section 212(a) (violent crimes or crimes of moral turpitude) apply to him or her. If the alien has been convicted of a DUI with an aggravated factor, he or she might be denied the immigrant visa.
Further, if an immigrant visa applicant has a driving under the influence conviction that does not fall within definition of crimes of moral turpitude or crimes of violence, a U.S. consulate abroad may refer the applicant to a panel physician for further review. If the applicant is determined to be an alcoholic, then he/she will receive a Class A determination from the Panel Physician. In this case, the consulate must defer to the Panel Physician’s recommendation.
There is a procedure for review of a Panel Physician’s determination by the Center for Disease Control, but the procedure is rarely if ever used. It is important to work with an experienced immigration attorney before the medical examination required by the consulate. Preparation must start with the review of the facts with the immigrant visa applicant’s physician. If the record indicates possible addiction, immigrant visa applicants must be prepared to explain to the Panel Physician, and present evidence that establishes that the applicant does not possess a medical condition of alcohol or drug addiction/abuse.
In the nonimmigrant visa renewal or revalidation context, a visa applicant may be denied visa renewal as a result of the DUI conviction if the conviction falls within definition of crimes of violence or crimes of moral turpitude under the state law. An individual who falls under the purview of one or more of the grounds of inadmissibility will be denied the visa, unless he or she qualifies for and receives a waiver.
An alien who enters the United States with a nonimmigrant visa, like a tourist visa, and later files an application to change status or to adjust status must establish that he or she is not inadmissible under Section 212(a) of the INA. If the applicant is convicted as a result of vehicular homicide which falls within the description of the crimes of moral turpitude or crimes of violence under Section 212(a) of the INA he/she may be determined to be “inadmissible” and as a result, may be denied the change of status. At that point, removal proceedings (the deportation process) would be initiated.
This question was answered by a Minnesota federal court in Ragoonanan v. USCIS in 2007. The USCIS denied Ragoonanan's Application for Naturalization (Form N-400) on the grounds that he failed to establish that he “has been and still is a person of good moral character” within five years of his application as required for naturalization.
Ragoonanan was arrested for driving while impaired with a blood-alcohol concentration of 0.18 percent, more than double what Minnesota law allowed for motor vehicle operation. Ragoonanan was charged with a fourth-degree misdemeanor DWI, and was jailed for one night.
Later Ragoonanan voluntarily underwent a substance-abuse inventory that categorized him as having “abusive episodic” tendencies and a “low probability of having a Substance Dependence Disorder.” He also completed a six-hour Alcohol, Drug and DWI Awareness course. Ragoonanan’s 90-day sentence and $1,000 fine were stayed in lieu of a $300 fine, a $65 surcharge, one year of probation, and the requirement that he attend a victim impact panel. Ragoonanan fulfilled all financial and probationary requirements.
Ragoonanan applied for citizenship while his probation was pending. He disclosed his conviction to the USCIS, which in turn, denied Ragoonanan’s application on the basis of his DWI conviction. Ragoonanan sought de novo review in the federal court. After reviewing the facts and the law, the court held that there was no authority indicating that a single DWI conviction resulting in probation operates as a statutory or regulatory bar to a naturalization applicant who seeks to establish “good moral character.” The court explained that since Ragoonanan underwent substance-abuse treatment, attended a six-hour alcohol awareness course, paid a fine, and completed a year of probation, he was a person of good moral character.
Recent decisions of the immigration and federal courts clearly demonstrate that having a DUI conviction on an immigrant client's record can be very damaging. Therefore, it is important to hire an experienced immigration attorney to advise the client during DUI plea negotiations. We regularly represent foreign nationals during their DUI plea negotiations. We will assess your legal situation, explain the immigration consequences of the DUI plea, work with your criminal attorney to manage the negotiation process and if necessary work with the court system to minimize the negative impact of the DUI plea on your immigration record.
This information is general in nature and is not specific legal advice. It does not create an attorney-client relationship.