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 a per se inadmissible offense. However:
A recent DUI arrest or conviction, or multiple past arrests or convictions, can trigger evaluation for being inadmissible under the health grounds due to alcoholism.2Having 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 (and other) 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.38 USC § 1182(a)(2), INA § 212(a)(2).
See Advice for other consequences.
Advice and Comments
See 23103.5 as alternative plea.
See Practice Advisory on DUI immigration consequences.4See ILRC, Immigration Consequences of Driving under the Influence (August 2017) at https://www.ilrc.org/immigration-consequences-driving-under-influence.
Pretrial Diversion. Two California courts of appeals have found that DUI is not eligible for PC 1001.95 diversion.5See Grassi v. Superior Court (2021) 73 Cal.App.5th 283; Tan v. Superior Ct. of San Mateo Cty (2022) 76 Cal. App. 5th 130 (review filed).
Reckless, wet reckless. While 23103.5 is not a good immigration plea, it is far better than a DUI for purposes of discretion in all cases, and often is the identified case goal. It is critical for DACA. See negotiating resources here.6DACA, DUI’s, and Wet Reckless. In many crim/imm cases, the immigrant does not need to seek a less serious offense; in fact, they may even “plead up” to an offense that carries more severe criminal consequences but is immigration-neutral. But this is not the case with DUI’s, and especially not with DACA. A DUI is an absolute bar to DACA, but VC 23103.5 is not. Absent some other serious negative factor, applicants with a 23103.5 conviction are routinely granted. In other kinds of cases, while it is best not to have a 23103.5, it often is treated with far more leniency than a DUI and can make the difference between winning and losing. In all cases, of course, a 23103 is even better.
Here are two resources for negotiating these cases. First, regarding the DA’s duty to consider avoiding immigration consequences in general, and especially in the context of DUI’s and DACA, see ILRC, DACA and California Penal Code § 1016.3 (2019), https://www.ilrc.org/sites/default/files/resources/ilrc_memo_re._dui_cases_and_1016.2_and_1016.3_final.pdf.
Second, here is a sample letter explaining the DACA issue to a DA or other party.
Because Mr. XYZ was brought to the U.S. as a child and before 2006, he is eligible to apply for Deferred Action for Childhood Arrivals, or DACA, the special relief for Dreamers. That makes this case critical, because a misdemeanor conviction for driving under the influence (DUI) is an absolute bar to DACA. A person who is convicted of a “significant misdemeanor” is barred from DACA eligibility, and a misdemeanor DUI conviction is a significant misdemeanor and will act as a bar. See U.S. Citizenship and Immigration Service, DACA Frequently Asked Questions, Question # 63, listing DUI as a significant misdemeanor, https://www.uscis.gov/humanitarian/consideration-of-deferred-action-for-childhood-arrivals-daca/frequently-asked-questions#criminal_convictions.
If instead he can plead to a wet reckless, Mr. XYZ will remain eligible for employment authorization and temporary protection from removal under DACA. In our universal experience, a misdemeanor conviction for VC § 23103.5 is not counted as a DUI for DACA purposes because it lacks the element of incapacity. As you know, VC § 23103.5 can carry the same criminal/driving penalties as a DUI and is equally priorable. My understanding is that the defendant shows great remorse for his action and is determined to make amends and prove that he will do better. [If applicable: Because Mr. XYZ already registered for DACA and voluntarily provided information about his immigration status, he is potentially subject to removal if he is disqualified from DACA.] Given that [list equities], I hope that the People will consider a wet reckless plea as a means ‘to reach a just resolution’ in this case, pursuant to Penal Code 1016.3(b).”
DACA. A DUI is a bar to DACA (the relief for Dreamers), but PC 1203.4 may work to eliminate it. VC 23103.5 is not a bar to DACA. See resources at endnote above.
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.7See 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.
Discretion in general: While not a specific removal ground, a DUI conviction is a common basis for denying release on bond and discretionary applications for relief.
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.8In 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.
Asylum/Refugees. A DUI with injury could be held a “particularly serious crime” affecting asylum applicants, asylees and refugees. See 23153.
Revokes visas; travel warning. U.S. consulates likely will revoke a non-immigrant visa (e.g., student visa) in response to DUI conviction or arrest. If this happens, the person should not return to the home country or travel outside the U.S. without first consulting with an immigration attorney. (The consulate does not have the ability to revoke the person’s permitted period of stay that was granted upon admission, but that can change if the person leaves the U.S.)
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. ICE may go to D’s home, if it decides to prioritize DUI’s. (At this writing ICE is not, but this has changed frequently.) Give D “red cards” and refer to a nonprofit for training.9SB 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.