VC 23152 (a)

VC 23152 (a)

Offense

Driving under the influence of alcohol

Aggravated Felony (AF)

Not AF

(In the future Congress might make a third DUI with 1-yr imposed an AF. If possible, avoid 1 yr on a single DUI count in that situation. See § N.4 Sentence.

Crime Involving Moral Turpitude (CIMT)

Not CIMT, including multiple offenses.1Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001).

Other Removal Grounds

Conviction is itself is not an inadmissibility ground but see Advice.

Discretion: While not a specific removal ground, a DUI conviction is a common basis for denying release on bond and discretionary applications for relief. See Advice.

U.S. consulates might revoke a non-immigrant visa (e.g., student visa) in response to DUI arrest or conviction. If this happens, the person should not return home without first consulting with an imm attorney.

Advice and Comments

See 23103.5 as alternative plea.

See Practice Advisory on DUI immigration consequences.2See ILRC, Immigration Consequences of Driving under the Influence (August 2017) at https://www.ilrc.org/immigration-consequences-driving-under-influence.

Good Moral Character. The BIA held that two DUI convictions within the period for which GMC must be shown create a rebuttable presumption against the person having GMC. GMC is necessary for naturalization, non-LPR cancellation, VAWA, and some other relief.3See Matter of Castillo-Perez, 27 I&N Dec. 664 (AG 2019) and see forthcoming practice advisory at www.ilrc.org/crimes. For more on the good moral character requirement, see section 17.26 of ILRC, N.17 Relief Toolkit (2018) at www.ilrc.org/chart.

Release on bond from ICE detention. Any DUI — but especially more than one DUI, or a relatively recent DUI – is a serious factor against release on bond.4In the case of a long-time permanent resident charged with a felony DUI, with two prior DUI convictions from ten years earlier at least one of which included an accident, the BIA held that the combination of events meant that the person was not eligible for release on any bond because he was a danger to the community. Matter of Siniauskas, 27 I&N Dec. 207 (BIA 2018). However, a federal district court held that an immigration judge could not deny bond based on a finding that the person was a danger to the community, when the finding was based solely on two misdemeanor DUI convictions from a few years earlier, when the person did not serve custody time and did complete probation conditions. The finding that these DUI convictions demonstrated that the person was a danger to the community was “clearly erroneous.” Ramos v. Sessions, 293 F.Supp.3d 1021 (N.D. Cal. 2018). Wet reckless offers no guarantee but is better.

Inadmissibility. A recent DUI arrest or conviction, or multiple past arrests or convictions, can trigger evaluation for being inadmissible due to alcoholism.5Having a physical or mental disorder (including alcoholism) that poses a current risk to self or others is a basis for inadmissibility under the health grounds. 8 USC § 1182(a)(1)(A)(iii).

People with multiple DUI priors might have become inadmissible by amassing a lifetime of 5 years aggregate sentence imposed (including suspended sentences) for two or more convictions of any type of offense.68 USC § 1182(a)(2), INA § 212(a)(2).

Asylum. Proposed imm regulations would make two DUI’s, or one DUI with injury (see 23153), a bar to asylum. Check updates.

SB 54 and ICE Visits to the Home. A misd DUI comes under SB 54 protections, which depending on the county may decrease the chance that ICE will arrest the person from jail. In that case, however, ICE may go to D’s home, because ICE prioritizes DUI’s. Give D “red cards” and refer for training.7SB 54 and the California Values Act provides some limits on how local law enforcement can interact with ICE, unless the immigrant defendant was convicted of certain offenses. A misdemeanor (as opposed to felony) DUI does not destroy SB 54 protection. For more on SB 54, see ILRC, § N.4. SB 54 and the California Values Act (2018) at www.ilrc.org/chart.

If the client is removable, the DUI is likely to make them a priority for ICE, so that ICE may come to their home if ICE doesn’t arrest them from jail. You can help your client by providing red cards and referring the person to a local nonprofit for advice and training. “Red cards” are red laminated cards distributed by ILRC that explain immigrants’ rights on one side (in any of several different languages) and on the other side, state in English that they do not wish to speak to the officer. To get more information, order red cards in bulk in various languages (for free, for California public defender and nonprofit organizations, and otherwise at low cost), or download any of the text for free, go to www.ilrc.org/red-cards.

DACA. A DUI is a bar to DACA, but PC 1203.4 may work. See PC 25400.

See also 23153 regarding a particularly serious crime, affecting asylum applicants, asylees and refugees.

2020-10-23T19:44:03+00:00Updated January 29th, 2020|