THE NEW IMMIGRATION POLICY ON DUIS: Is it deportable as a disease? ICE thinks so!
DUIs, or the crimes surrounding Driving Under the Influence, have become the lightning rod for politicians to work on, it has become a very lucrative business for lawyers, and it has always been a touchy subject with the federal government and the U.S. Supreme Court.
Until 2004, everyone in America assumed a DUI was deportable as a crime of violence under the Immigration and Naturalization Act. So at the time, the advice of attorneys was plea it down to Reckless Driving as Reckless was less jail time and lower penalties and less harmful for immigration purposes.
This was until 2001 when a kid, who was a permanent resident pled guilty to a DUI and then was brought to court to be deported for his conviction. He was only 20 years old, had grown up here in the U.S. his entire life, and was being forced to move to Portugal. He couldn’t even speak Portuguese.
The issue was taken up to the U.S. Supreme Court in the case of Leocal v. Ashcroft, 543 U.S. 1 (2004). In this decision, the court held that aliens may not be deported after being convicted of DUI if the DUI statute that defines the offense does not contain a mens rea element or otherwise allows a conviction for merely negligent conduct.
For your information, Reckless Driving is also a problem with the immigration code. Where no court yet has held that the term “Reckless” is a crime of moral turpitude, well, let’s just say, it is only a matter of time. Just recently in the state of Texas, the federal court ruled that that recklessness is a culpable mental state if it entails a conscious disregard of a substantial and unjustifiable risk posed by one’s conduct. See Matter of Ruiz-Lopez, 25 I&N Dec. 551, 553−54 (BIA 2011), aff’d, 682 F.3d 513 (6th Cir. 2012); Matter of Franklin, 20 I&N Dec. 867, 869−71 (BIA 1994), aff’d, 72 F.3d 571 (8th Cir. 1995); Matter of Wojtkow, 18 I&N Dec. 111, 112−13 (BIA 1981); Matter of Medina, 15 I&N Dec. 611, 613−14 (BIA 1976). The court concluded that recklessly placing another in “imminent danger of serious bodily harm” is “reprehensible conduct” that constitutes a crime involving moral turpitude. As the reckless driving statute of Washington could be interpreted to be a crime of moral turpitude under the immigration code, the DUI options were preferred. So, from 2004 until yesterday, the advice to immigrants was to have the case resolved with a deferred prosecution (treatment program, abstaining from alcohol for 5 years, then case dismissed), also vcalled “Diversion” in Oregon, or plea to a DUI instead of a Reckless Driving.
That changed yesterday. Big time.
Someone, probably some politician in Congress who hated the result in the Leocol case, came up with an interesting way to get around the Supreme Court decision. Here it is:
All consular officers may prudentially revoke nonimmigrant visas for DUI arrests subsequent to visa issuance because driving under the influence is indicative of a possible INA 212(a)(1)(A)(iii) ineligibility for a possible physical or mental disorder with associated harmful behavior. Basically, because alcoholism is a disease that can be harmful to people in the United States, they can: 1) exclude you from entering the United States; 2) Revoke your current visa and then order you to leave by a certain date; 3) summarily start deportation proceedings against you as being to “sick” to remain in the United States. And they only need PROOF OF AN ARREST, A PLEA, OR AN AGREEMENT FOR A DISPOSITION showing you have the illness. They do not need a conviction. You are being deported for your illness, not because of a conviction.
This is really changing how the attorneys advise their clients now. Now, proof of the DUI is enough. So, where before the DUI was a better choice for immigration, now attorneys are back to advising Reckless Driving again. Reckless driving can be for speed, not that you exhibited the effects of alcoholism.
I see this issue being taken up in the next year or so. We will see if the policy makers of the Immigration law are right on this and if hundreds upon thousands of immigrants in the U.S. will be prevented from coming home to the United States or if they will be massively forced to leave the U.S. for something like a deferred prosecution of a DUI.
– Gregory Scott Hoover
Attorney at Law
Gregory Scott Hoover’s primary area of legal practice is in the form of civil, personal injury and criminal litigation, immigration law and assisting those involved in EB-5 transactions. Mr. Hoover is licensed in both Oregon and Washington, and New York, U.S.A., and England and Wales, U.K. Mr. Hoover is also a skilled negotiator, mediator and arbitrator. As a skilled negotiator and litigator, Mr. Hoover can skillfully resolve your situation through effective negotiations or, if necessary, aggressively represent your matter in court.
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