Drunk driving is a nationwide problem, as evidenced by the efforts of legislatures to prohibit such conduct and impose appropriate penalties. But this fact does not warrant our shoehorning it into statutory sections where it does not fit.

-Chief Justice William Rehnquist

Leocal v. Ashcroft 543 U.S. 1 (2004)

     In 2004, the Supreme Court issued a decision on whether a Driving Under the Influence (DUI) offense constituted a ‘crime of violence’ and thus a deportable aggravated felony under immigration law. The Court ultimately answered no for this specific case, but DUIs under immigration remain a huge issue. In general, a DUI will not make a person deportable, nor will it prevent a person from (ultimately) obtaining a green card or visa. While the term ‘moral turpitude’ is not clearly defined under the Immigration and Nationalities Act (INA), there is enough guidance from courts to show when a DUI can become a big problem. 

DUI Involving Drugs

     Under the INA, a person is both inadmissible (unable to get a green card or visa) and deportable if he or she is convicted of a crime relating to controlled substances. The only exception is for a conviction of possession of less than 30 grams of marijuana. Congress specifically used the words ‘relating to’ rather than ‘of’ in order to make more crimes count. The term is broad enough to incorporate many acts such as possessing, ingesting, trafficking, distributing, manufacturing, financing, creating or otherwise supporting drugs. An argument can even be made for driving under the influence. Driving under the influence of a drug listed in the Federal Controlled Substance Schedules may render a person inadmissible or deportable. 

DUI Involving Children or Minors

     Separately, a conviction for DUI and a conviction for endangering the welfare of a child may not rise to deportable or inadmissible ‘mortal turpitude’ offenses. However, combined these two offenses may affect a person’s immigration status: whether it’s getting a green card, getting a visa, obtaining citizenship or being removed from the United States. A DUI with a child in the car, or a DUI with an accident and injury to child passengers, may rise to the level of moral turpitude. A DUI conviction based on being a school bus driver would also likely be considered moral turpitude. This area of law is highly fact specific. Many factors must be considered, including jurisdiction, circuit location, state statutes and more. 

DUI and DUS (Driving Under Suspension – DUI)

     Driving on a suspended license involves knowing behavior, and usually results in an additional sentence/suspension and fines. If your license was suspended because of a DUI, the penalty involves not being able to drive. Ignoring the law and continuing to drive, with or without alcohol in your system, creates a danger to society. Some states such as Pennsylvania and New Jersey criminalize driving on a suspended license based on a DUI. The penalties are severe: large fines, further suspensions and in most cases mandatory jail time. Driving on a suspended license based on a DUI may rise to moral turpitude for these reasons, which in turn can greatly affect immigration status. 

DUI and Good Moral Character

    Good moral character is highly relevant in two areas of immigration law: cancellation of removal and naturalization. The former allows undocumented people to obtain a green card through Immigration Court and the latter allows green card holders to obtain citizenship. Both require good moral character. A DUI can affect a judge’s or USCIS officer’s determination. If a person is convicted of a DUI and serves his or her time, pays all fees and successfully complete probation, this shows respect and responsibility. On the other hand, if a person convicted of DUI violates probation repeatedly, continues to drink or do drugs, or fails to pay fines or complete classes, this may lead to a finding of bad moral character. Even a first offense DUI can result in a years-long case because of these issues.

   It is important to note, as of October 25, 2019, the Board of Immigration Appeals found that evidence of two or more DUI convictions establishes presumption of a lack of good moral character. Although it is possible to overcome this presumption for purposes of cancellation of removal, it is very serious. Contact an attorney as soon as possible if you have two or more DUI convictions.

DUI, Nonimmigrant Visas (B, E, F, H & L) and DACA

     The biggest and most common issue with DUI and nonimmigrant status involves revocation. Generally, if a person is in the United States on a tourist, student or temporary work visa and is arrested for DUI, his or her visa will be revoked by the Consulate that issued it. Revocation is a difficult area of law because it (a) is discretionary, (b) not appeal-able, and most importantly (c) does not require a criminal conviction. Revocation can come at any time after the Department of State finds evidence of a DUI arrest. A person is welcome to re-apply for his or her visa, but will likely have to undergo a panel physician’s screening (to prove a person is not a drug or alcohol abuser). This determination can take up to one (1) year. 

     Another disadvantage of a DUI is for DACA holders. A DUI is one of the ineligible ‘serious misdemeanor’ offenses for DACA. Even though the government has stopped taking new DACA applications, a DUI conviction will affect DACA renewals.