Immigration Consequences Of Drunk Driving Convictions
I probably don’t need to warn you about the dangers of drunk driving. However, this column discusses immigration law and issues affecting immigrants. So I will warn you about the dangers of a drunk driving conviction if you are a non-citizen in the United States. If all goes well, this warning will lead to fewer acts of drunk driving by immigrants and fewer cases in which immigrants are separated from their homes and families because of drunk driving convictions.
A drunk driving conviction, referred to in this column as "DUI", can lead to inadmissibility or deportation from the United States. A DUI conviction is problematic because it could be considered, depending on the specifics of the state law, a "crime involving moral turpitude" and a "crime of violence" under US immigration law. There has been a great deal of litigation on both of these issues over the last few years.
Aggravated Felony – "Crime of Violence"
Aggravated felony convictions are disastrous for immigrants: such a conviction forecloses numerous avenues of relief from removal, can lead to deportation and results in a 20-year bar to re-entry after deportation. On April 4, 2002, the Board of Immigration Appeals published a decision in Matter of Ramos, 23 I & N Dec. 336 (BIA 2002), in which the Board clarified some issues with respect to DUIs as crimes of violence for purposes of the aggravated felony provision of INA §101(a)(43)(F).
The circuit courts have issued different and conflicting decisions regarding the determination of whether a DUI conviction is a "crime of violence."1 In Matter of Ramos, the Board held that it will follow the decisions of the circuit courts in those circuits that have addressed the issue of whether a DUI is a crime of violence. In circuits that have not addressed the issue, the Board decided that it will only find a "crime of violence" where the elements of the crime "reflect that there is a substantial risk that the perpetrator may resort to the use of force to carry out the crime" and where the offense is committed "at least recklessly."
Crime Involving Moral Turpitude (CIMT)
A conviction for a "crime involving moral turpitude" (or the admission of the acts that constitute such a crime) is a ground for inadmissibility to the United States and deportation from the United States. An alien who is convicted of a CIMT within five years of entry (for which a sentence of one year or longer may be imposed) or two CIMTs at any time after entry is deportable. An alien convicted of a single CIMT is inadmissible to the United States, although certain waivers might be available.
The Board of Immigration Appeals has found that an ordinary DUI conviction does not involve moral turpitude. See Matter of Lopez-Meza, Int. Dec. 3423 (BIA 1999). An ordinary DUI conviction does not involve a "culpable mental state requirement," such as intent or knowledge. In Matter of Lopez-Meza, the Board found that the crime did indeed involve moral turpitude because the alien was found to have the aggravating factor of operating the vehicle following the suspension of his license. The important distinction for the Board was that the aggravating factor of the suspended license required a showing that the offender knowingly drove with a suspended license. Thus, if a state has an ordinary DUI statute that would generally not be considered a CIMT, aggravating factors could change the crime to one involving moral turpitude.
Even if an alien is able to avoid deportation or inadmissibility resulting from a DUI conviction, he or she is not home free. The INS may consider any criminal conviction in making a determination regarding good moral character for purposes of an application for naturalization. There are statutory bars to a finding of good moral character, including an aggravated felony conviction after November 29, 1990 and an aggregate of 180 days spent in jail. See INA §101(f). However, even if a conviction does not fall within one of the statutory bars, it can still be a basis for a finding that the applicant lacks good moral character and the denial of his or her citizenship application.
DUI laws vary from state to state, but have become more uniform in recent years. In 1998, President Clinton launched an initiative to encourage all states to enact laws making it illegal per se to operate a motor vehicle with a blood alcohol concentration (BAC) of .08 percent or higher. A majority of states have passed .08 BAC per se statutes.2 These laws allow for a DUI conviction based on a blood alcohol content test, regardless of the level of physical or mental impairment.
According to research by the National Highway Traffic Safety Administration, a male weighing 170 pounds will have a BAC of .08 if he has about 4-5 drinks in one hour, about the time it takes to watch half a soccer game or a quarter of football. For a woman weighing 137 pounds, only about 3 drinks in an hour will cause a BAC of .08 percent.
If an individual is pulled over while driving in a state that has a .08 BAC per se law, is given a BAC test and the test shows .08 percent or more, no further proof is required. That person will be found guilty of DUI. The ease with which the state can prove a DUI case under the per se statutes means that convictions are very hard to avoid.
In addition to the inherent dangers of drunk driving, immigrants should be aware of the possible consequences if convicted of a DUI crime. Many immigrants come from countries in which DUI crimes are not prosecuted as strictly as in the United States and many may never have heard of a "designated driver." As is explained above, the immigration consequences of a DUI conviction depend on the state law and the relevant circuit court precedent. The result is that for immigrants, the decision to drive home instead of calling a taxi or a friend could lead to deportation from the United States.
1 Two circuit courts have found that a DUI conviction is a crime of violence. See Tapia Garcia v. INS, 237 F.3d 1216 (10th Cir. 2001); Le v. United States Attorney General, 196 F.3d 1352 (11th Cir. 1999). Four circuit courts have found that a DUI conviction does not amount to a crime of violence. See United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001); Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001); Bazan-Reyes v. INS, 256 F.3d 600 (7th Cir. 2001); United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001).
2 36 states currently have .08 BAC per se statutes. See http://www3.madd.org/laws/law.cfm?LawID=08PS>.
About The Author
Christina B. LaBrie, Esq. is an associate attorney at Cyrus D. Mehta & Associates, PLLC. She received her J.D. from the New York University School of Law in 2000. Prior to joining the firm, she practiced immigration law, representing primarily asylum applicants before Immigration Courts, the Board of Immigration Appeals and federal courts.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.