Whether you’re a student on an F1-visa, a green card holder, or in the US for asylum, you don’t want to take your chances when it comes to immigration. A California DUI arrest is a serious crime, but, for a non-citizen, it can lead to tragic consequences such as a denial of citizenship, deportation, or exclusion from admission. Imagine how horrible it is to come to your home in the US and not be let in by immigration because of a DUI on your record. We’ve entered a political climate where the US government (through its current president) acts very harshly against immigrants, as you’ve undoubtedly seen in the news. Here’s what you need to know about DUIs as an immigrant or visitor to the US.
IMMIGRATION LAW AND DUI
In section 237 of the Immigration and Nationality Act (INA), DUI is not listed as a ground for deportation. However, for a person who is here on a visitor’s visa, being arrested for any crime is a ground for visa revocation. Also, because many immigrants receive “discretionary benefits”, they will be ineligible to stay in the US if convicted of a DUI. This is why it is essential to choose the best legal representation you can if you find yourself arrested for a DUI (or any crime). Because immigration law is very nuanced, even if you are arrested for a DUI and think your case is hopeless, there is a lot you can do to avoid serious legal problems. For instance, DUI while having your license suspended can be considered a much more serious offense, but with a good Los Angeles DUI attorney, we often get suspended license charges dismissed as part of the negotiation with the Los Angeles DA or CA office.
EXAMPLE: you are arrested for a DUI and you have your child in the car. The prosecutor charges a special allegation under California Vehicle Code section 23572. This special allegation carries additional punishment of 2 days in the county jail. By itself, the additional jail sentence is not a serious consequence because a jail sentence of additional 2 days will not be devastating and most likely will not cause any increase in the actual number of jail (if any) spent in custody. However, if convicted of this special allegation under CVC 23572, you will deportable under INA 237(a)(2)(E)(i), a “crime of child abuse, child neglect, or child abandonment”. However, if the prosecutor instead charges you with a separate crime under Penal Code section 273a(b), it becomes a non-deportable crime (although it may carry some additional immigration consequences such as effect on DACA, TPS, etc).
Thus, pleading to a very similar additional charge (even a felony) is much more benign for immigrants than pleading to a very similar special allegation. So, being convicted of 2 crimes is better than being convicted of 1 crime with special allegations. But this is not always the case. It is very important to have the assistance of a good DUI attorney to help avoid immigration problems.
AGGRAVATED DUI and PARTICULARLY SERIOUS CRIMES
When people think about deportation they list aggravated felonies, offenses involving controlled substances, or multiple crimes of moral turpitude. A few years ago, a serious DUI, such as involving an accident and a serious injury to a victim, could be a ground for deportation based on a “crime of violence” analysis. In 2004, the US Supreme Court decided that DUIs weren’t crimes where someone was intentionally violent to others, but more crimes of negligence. This removed DUI from a crime of violence classification and made it into “seemingly” a “non-deportable offense”. This analysis only applies to “green card” holders and is irrelevant for many other types of immigrants, such as asylum seekers, TPS holders, DACA recipients, and undocumented persons. Also, if you are convicted of DUI with injury (CVC 23153(a)/(b)), it is considered a particularly serious crime and will cause revocation of asylum status. Moreover, recently, the Board of Immigration appeals held that 2 DUI prevents establishing “good moral character”, which is a requirement for citizenship, cancelation of removal, and several other immigration-related benefits. Similarly, a DUI when driving on a suspended license is a significant aggravation and will trigger additional immigration problems.
HABITUAL DRUNK AS A BASIS FOR DEPORTATION
Even though DUI does not fall within usual deportable grounds, multiple DUI convictions can lead to the start of deportation proceedings because the immigration will suspect that you are a habitual drunk. Being a habitual drunk is a separate ground for deportation and will require a visit to a doctor. A doctor will examine you and decide if multiple DUI offenses are coincidences or a result of being sick with alcoholism. An alcoholic can be deported and you need the help of an attorney if you are facing multiple DUI cases. Some circuits will have a rule that 3 DUI will require deportation based on this basis. Also, while an alcohol DUI is not usually a deportable offense, the presence of illegal drugs in your blood is. Any offense involving illegal drugs can have the most devastating consequences. Thus, in California, if you are charged with CVC 23152(f) (a drug-related DUI), it can results in deportation based on a “controlled substance violation).
VISITORS IN THE US
22 CFR 41.122 allows the consulate to cancel any visitor’s visa for any reason. Foreign Affairs Manual (FAM) authorizes consular officers to revoke visas merely for an arrest within 5 years.
EXAMPLE: You come to the US on a Studen Visa (F1). During your stay in the US, you got arrested for a DUI. The police transmit your arrest information through “livescan” to a California DOJ which is linked with Federal DOJ. Federal DOJ transmits your arrest information to the immigration which immediately transmits the arrest information to the consulate which issued the F1 visa to you. The consulate cancels your visa and you are notified by a letter to leave the United States incidentally.
If this happens to you, do not simply leave the country, look for immigration counsel right away.
The example above is a real-life situation that many persons face. If you are in the US as a visitor and are arrested for a DUI, it’s important to fight your DUI and get help from a DUI defense attorney right away. If you are near Los Angeles, call our office. Los Angeles DUI lawyer will analyze your case and help you determine how to fight your case and how to keep your immigration status. California DUI laws are very nuanced and you need the help of a professional DUI defense attorney to help you avoid deportation Los Angeles DUI attorney has developed the respect of judges and prosecutors and has technical knowledge of DUI defense that will help you maximize chances of winning. Even if DUI is not defensible, Los Angeles DUI lawyer can get you a better deal that will help you in immigration court. For example, recent changes in the asylum regulations cause 2 DUIs to be a bar to asylum (Matter of Castillo-Perez 27 I&N Dec.664). To fight that, if our clients are applying for asylum, we present evidence that they are suffering from fear of protection in their home country and need to get a reduction from a DUI. Remember, just avoiding jail time will not be helpful for a person who is faced with a DUI. A change in charge is needed to avoid deportation.
If you were arrested for a DUI in California and worried about deportation, call the DUI Law office of Alex Andryuschenko at (818) 921 7744. We provide a free DUI case review to help you defend your case.