How Does a DUI Impact Your Immigration Status?

Getting arrested for driving under the influence (DUI) can be a life-changing event for many people, especially for immigrants. As a non-citizen, it is natural to worry about how a DUI arrest could impact your immigration status. In this article, we’ll explore the details of how a DUI can affect your immigration status.

Immigration Status

First things first – whether a DUI conviction will impact your immigration status depends on your immigration status.

If you are an undocumented (illegal) immigrant, a DUI arrest can immediately lead to immigration proceedings and potentially result in deportation. In this case, hiring a lawyer should be your top priority to help you navigate the complex immigration process.

On the other hand, if you are in the US legally, then a single DUI conviction will not lead to deportation. However, it’s important to note that DUI can still affect your immigration status, especially when it’s combined with other criminal charges.

DUI’s and Immigration Status

The Immigration & Nationality Act (INA) is the key determinant that determines which crimes affect immigration status. Whether a crime involves criminal intent (strictly speaking, whether it is a “crime of moral turpitude”) is the primary factor that INA uses to determine whether a crime affects your immigration status.

DUI is not commonly interpreted as requiring criminal intent. Thus, even if you plead guilty or no contest to a DUI charge, or you’re convicted, the charge itself does not lead to any action involving your immigration status. In other words, you will not be deported nor will your permanent resident status (“green card”) or citizenship be denied based on a DUI charge.

Even if your DUI resulted in injury or death, there is no criminal intent presumed, so it will not lead to any action involving your immigration status.

Complicating Factors

While a DUI alone may not impact your immigration status, there are complicating factors to consider. These include a DUI that involves illegal drugs, driving on a suspended license, or a DUI with a child in the car.

Drug DUI’s

A DUI involving illegal drugs can impact your immigration status. The INA specifically lists drug crimes as grounds for deportation or denial of a visa/green card. Using any controlled substance that’s banned by federal law could put your immigration status at risk.

Driving on a Suspended License

Driving on a suspended license is a criminal offense that can lead to action on your immigration status. This is because you knew that your actions were illegal and still chose to drive. This charge can lead to deportation, regardless of whether your license was suspended due to a prior DUI or any other reason.

DUI with a Child in the Car

DUI’s are taken even more seriously when a minor is present in the vehicle. Prosecutors can either seek “enhanced” penalties on the DUI charge or charge the driver with Child Endangerment in addition to DUI. Child Endangerment is a separate charge that involves criminal intent and can affect your immigration status, potentially leading to deportation. It is best to have a good DUI lawyer to protect you from being deported.

DUI as a Felony

In some cases, DUI can be tried as a felony. A felony DUI is not on the INA’s list of aggravated felonies and cannot be used against you in this way. However, it can still impact your future if you are seeking residency through DACA or want to become a citizen.

The Immigration Consequences of a DUI Conviction

Understanding the Risks for Non-Citizen DUI Convicts

Are you a non-citizen worried about the immigration consequences of a DUI conviction? Our clients frequently ask us if a DUI conviction can lead to their deportation or being turned away if they leave and try to return to the United States.

The Former State of Affairs

Before President Trump took office, the general answer was no. However, it’s always wise to consult with an experienced immigration attorney before making any decisions, especially if you plan to visit another country like Canada. Felony DUIs carry even higher risks and require additional consultation.

The Current Reality

DUI is considered a “General Intent” crime, meaning it is not a crime of moral turpitude. However, this can change if the DUI involves injury to another person or if there are other aggravating factors, such as operating a motor vehicle with a suspended license or endangering a child. In these cases, the conviction can be deemed to involve moral turpitude, making the non-citizen subject to deportation under Immigration and Nationality Act § 237.

Repeat Offenders and Other Risks

Convictions for second or third time DUIs can also increase the risks of deportation or denial of re-entry. The Board of Immigration may view these convictions as revealing alcoholism or substance abuse, which can disqualify the non-citizen for a green card. Additionally, facts such as property damage involved in the DUI can also become problematic. One Board of Immigration Appeals decision even held that a second DUI was a crime of violence due to the risk of harm to persons and property.

Drug-related DUIs can also have severe consequences. If the non-citizen is offered a diversion program such as Prop 36 or PC 1000, their mere entry into the program is considered a conviction under immigration law. This finding can affect the moral character of the non-citizen and their eligibility for naturalization.

Protecting Yourself from Immigration Proceedings

If you’re afraid of being held for immigration proceedings, we recommend serving time for a second-time DUI through house arrest and wearing a SCRAM device, which usually avoids immigration proceedings.

The Broader Impact of a DUI Conviction

Even though a DUI conviction may not lead to deportation or denial of re-entry, it can still affect a non-citizen’s procurement of a visa or adjustment of status. Furthermore, a DUI conviction, even a misdemeanor, is considered a “significant misdemeanor” that can negatively affect eligibility for DACA (Deferred Action / Dream Act).

Final Thoughts

In conclusion, a DUI conviction usually doesn’t lead to deportation or denial of re-entry, but it can have other consequences that must be considered. It’s crucial to carefully and creatively negotiate any plea bargains to minimize these effects and protect your immigration status. Consult with an experienced immigration attorney to fully understand your options.