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.
Can an Alien Be Removed or Deported as a Result of a DUI Conviction?
DUI as a Crime of Violence
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.
DUI as a Crime of Moral Turpitude
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.