Immigration Consequences of Driving Under the Influence

2015-09-15 in Blog, Crime and Immigration

Immigration Consequences of Driving Under the Influence

Driving under the influence of alcohol (“DUI”) convictions have varying degrees of severity for the non-citizen, depending upon the non-citizen’s status in the United States. There are four categories of non-citizens for purposes of considering the effects of a DUI conviction. This article will discuss the consequences, first, for someone here who entered without inspection, i.e., “illegally,” or “without papers.” Second, it will discuss a conviction for those who have overstayed their visas and are thus considered to be “overstays.” In the third category are those who may qualify for Deferred Action for Childhood Arrivals (“DACA”). And, fourth, there are those who have legal permanent residency status. At the end of this article we discuss the best course of action you can take to avoid a conviction for DUI

Without Inspection. For these persons the consequences can be grave. It is our experience that as a result of a DUI, especially someone who lives in the areas outside of Chicago, a person can find him or herself before an Immigration Judge facing removal proceedings as a result of a DUI arrest. The mere occurrence of an arrest is enough in some jurisdictions to get the attention of U.S. Immigration and Customs Enforcement (“USICE”) who process the person to be placed in proceedings before an Immigration Judge, called “removal” proceedings. In Chicago, this is typically not the case unless the person gets a sentence of confinement to jail.

Many people who have been here for a long time, in particular over 10 years, can request “Cancellation of Removal for non-Legal Permanent Residents” before the Immigration Court if he or she can show they have a U.S. citizen spouse, child, or parent who will suffer extreme and exceptional hardship if he or she is removed from the U.S. But a DUI conviction makes it very difficult to demonstrate the good moral character required before an Immigration Judge. In other words, an Immigration Judge is not likely going to take a risk that someone who has been caught drinking and driving will not stop doing so and, thus, will not continue put people’s lives in danger. A person in this situation, who has no status, may have a chance to get Cancellation of Removal if the DUI conviction is many years old and the hardship to the U.S. citizen is truly exceptional. Therefore, the lesson to learn here is that if you are in the U.S. without status you should do all that you can to contest the charges in order to get a finding of “not guilty” by the criminal judge or jury or have the case dismissed on a pretrial motion to suppress the arrest.

Many persons without inspection also qualify for the new “Provisional Waiver” program if he or she has a U.S. citizen wife or U.S. citizen son or daughter over 21 years of age to sponsor him or her. Again, a DUI conviction will make this process difficult if not impossible. U.S. Citizenship and Immigration Services (“USCIS”), which processes these waivers, will consider your conviction for a DUI disqualifying if it occurred in the last three years or permanently disqualifying if you have had more than one. USCIS and the U.S. Department of State (which processes the immigrant visas) will find such a person “inadmissible” under the Immigration and Nationality Act (“INA”) as a “habitual drunkard.” Again, the lesson here is that if you have a chance at obtaining status in the U.S. through the Provisional Waiver program you should not accept a plea of guilty to a DUI charge unless you and your attorney are fully convinced that you would never succeed at trial. It has been our experience that many persons have come to us seeking assistance either in Immigration Court or with consular processing only to have their chances ruined by having unwisely pleading guilty to a DUI charge. Again, the lesson is to not have a conviction for DUI.

It has been our experience that a DUI conviction will also make your chances at obtaining “prosecutorial discretion” very difficult if not impossible. Under a new initiative by President Obama several years ago, he authorized the government attorneys to close removal cases if the circumstances of the case indicated that the non-citizen has ties to the United States, e.g., family, business, home, and has a clean criminal record. Although technically a DUI is only a misdemeanor offense, it is enough to become a bar to obtaining prosecutorial discretion. Again, the lesson is to fight a DUI charge if you have entered the U.S. without inspection.

Overstays. For someone who entered the U.S. legally, but has overstayed his or her visa, he or she would likely be placed in proceedings for being out of status if he or she came to the attention by USICE as a result of a DUI arrest. Since persons who entered legally may be sponsored by a U.S. citizen spouse or son or daughter over 21 years of age, in this situation, they do not have the same difficult burden of proof for good moral character as required for someone who entered illegally. For instance, if a U.S. citizen spouse petitions for him or her, a DUI conviction has little consequence in the adjustment proceeding. But, lacking such a sponsor, e.g., not married any longer, then the person would be required to seek Cancellation of Removal for non-Legal Permanent Residents and would face the same burden of proof as a person who entered without inspection as discussed above.

Deferred Action for Childhood Arrivals (“DACA”). For a non-citizen who either entered without inspection or is an overstay, requesting DACA is always an option. The main requirements for DACA are that the non-citizen entered the U.S. prior to turning 16 years of age, was under the age of 31 as of June 15, 2012, and has at least a high school degree or GED. In addition, however, there are bars for criminal offenses. One of those is DUI, which is considered a “significant misdemeanor” barring the grant of DACA.

Legal Permanent Residents. For these persons, a conviction for DUI is really only an inconvenience if you have only one. A DUI conviction is not enough to warrant being placed in removal proceedings, unless there are other exacerbating circumstances, such as death, harm, or extensive property damage. A legal permanent resident can seek to be naturalized even with a DUI in his or her background and USCIS usually will grant Naturalization even if there is a recent DUI. At the same time, however, the grant of Naturalization is discretionary, so if the DUI is too recent, i.e., within the last year, or the person is still on probation or supervision, it is unlikely that the naturalization will be granted until that is completed. Further, if there is more than one DUI, the chances increase that the Naturalization will be denied if the application is within 5 years of the last conviction, but its not always the case if there are other positive factors. The period of time of having to fulfill the requirement for “good moral character” under the INA is 5 years. Thus, if you want to be certain that you will be granted Naturalization and you have more than one DUI, we recommend waiting out the 5 year period from the date of the order issuing the last DUI conviction.

What Can You Do if You Are Charged with DUI? The best course of action is to hire a good immigration attorney to give advice and guide you through the process if you are charged with a DUI, especially if you are not a legal permanent resident. We can recommend and work with good criminal defense lawyers who will be able to explain your chances of winning at trial after reviewing the evidence. There are a multitude of ways to contest a DUI charge, including contesting the accuracy of the breath test or blood test, the accuracy of the field tests, etc. Further, pursuant to our recommendations, the criminal defense attorney may also be able find a way to suppress the arrest for lack of a probable cause to arrest in the first place, e.g., you were not weaving, speeding, or doing anything wrong when you were pulled over.

Conclusion. It is our opinion that those without status, as opposed to those to are legal permanent residents, have too much to lose by improvidently pleading guilty to DUI cases. A plea should be avoided at all costs by hiring a good immigration attorney to work with a good reputable criminal defense lawyer.

We recognize that there is always the risk that by taking a case to trial, and losing, that a DUI defendant will face jail time and, by getting jail time, the defendant will then come to the attention of USICE. On the other hand, when a person pleas guilty and gets only probation the chances are better that it will not result in coming to the attention of USICE since there is no jail time involved. This is the way that prosecutors and criminal defense attorneys work to convince all defendants to plea guilty, i.e., by pointing out that jail time is possible or likely if you contest the case and lose. It is important to keep the following in mind: first, this is not always the case; it varies by jurisdiction and by judge and depends upon whether there is any previous criminal background. A good criminal defense attorney will be able to let you know what might happen in the event you lose after trial. And if the case is outside of Chicago it is likely that even before the DUI case is completed the person has already been placed in removal proceedings by USICE. Therefore, contesting the DUI case and getting jail time is of no consequence to being put in removal proceedings before an Immigration Judge – the worst has already happened, the person has already come to the attention of USICE. Therefore, the lesson to learn here is that a person who has no status should not be afraid to contest their case to the fullest extent possible, especially if he or she was arrested outside of Chicago, where he or she likely has come to the attention of USICE already. And, if in Chicago, the person ought to find out from the criminal defense attorney what may happen if there were a finding of guilty after contesting the case.

For most people, preserving the ability to obtain legal status in the U.S. with all its benefits, both financial and emotional, is worth the risk of few days in jail and would have taken this risk had they known the grave adverse consequences of a DUI conviction.

Tie Xia Chen v. Holder

2015-04-01 in Cases Won

Tie Xia Chen v. Holder
782 F.3d 373 (7th Cir. 2015)
Seventh Circuit Court of Appeals/h4>

On April 1, 2015, the Seventh Circuit Court of Appeals rendered a favorable decision on a Petition for Review for a Chinese citizen, represented by James C. Ten Broeck Jr. of Chicago Immigration Advocates Law Offices, whose claim of asylum was denied by the lower Immigration courts.

Chicago Immigration Advocates Law Offices, through Attorney James C. Ten Broeck Jr., was retained after Mr. Chen lost his case before both the Immigration Court and Board of Immigration Appeals. Mr. Ten Broeck filed a Motion to Reopen before the Board of Immigration Appeals asserting that numerous errors were committed by previous counsel which were relied upon by the Immigration Court to enter an order of removal against Mr. Chen. More specifically, Mr. Ten Broeck recounted that his previous attorneys (1) mistranslated important documents, (2) his attorney twice misadvised him to get a unauthentic birth certificate for the second child, and (3) his attorney inappropriately supplied a Spanish translation of his own birth certificate without adequate explanation, among other errors relied upon by the Immigration Court to deny Mr. Chen’s asylum claim.

The Seventh Circuit agreed, saying:

"The Board never evaluated Chen's argument that, but for his attorneys' failure to resolve the inconsistencies cited by the IJ, she would not have required corroboration or would have found the corroboration (beyond the birth certificates) sufficient. For example, “the most significant inconsistency,” according to the IJ, was that Chen asserted in his written application for asylum that his wife had been sterilized but testified that she was only threatened with sterilization. But in his motion Chen offered evidence that Ming had the application mistranslated and that attorney Zhang, who spoke Mandarin, carelessly left it mistranslated. Chen's motion also goes through every other supposed inconsistency or deficiency—the Spanish translation of his birth certificate, meeting Meredith, his daughter's age, his reasons for coming to the United States, and document authentication—and offers the resolution that his attorneys neglected to furnish. The Board addresses none of this evidence or its possible effect on the IJ's decision."

Chicago Immigration Advocates Law Offices continues to demonstrate, through the efforts of Mr. Ten Broeck, that no matter how grim things might look for your case, if any lawyers are going to win your case, it will be Chicago Immigration Advocates Law Offices.

In Re: Carlos, (Chicago Immigration Court, July 13, 2011)

2011-07-13 in Cases Won

Legal challenge:

Our client was charged with deportation for the commission of two crimes of moral turpitude after entering the United States. Action Taken: Chicago Immigration Advocates filed a motion to stay the removal proceedings on the grounds that his first conviction was not a crime of moral clumsiness and was also a protected expression under the First Amendment to the U.S. Constitution. .. Result: The Immigration Court agreed, found that our client’s first conviction was not a crime of moral clumsiness and ended the deportation case against our client. Our client remains in the United States to this day as a lawful permanent resident.

In Re: Carlos, (Chicago Immigration Court, July 13, 2011)

2011-07-13 in Cases Won

Legal challenge:

Our client was charged with deportation for the commission of two crimes of moral turpitude after entering the United States. Action Taken: Chicago Immigration Advocates filed a motion to stay the removal proceedings on the grounds that his first conviction was not a crime of moral clumsiness and was also a protected expression under the First Amendment to the U.S. Constitution. .. Result: The Immigration Court agreed, found that our client’s first conviction was not a crime of moral clumsiness and ended the deportation case against our client. Our client remains in the United States to this day as a lawful permanent resident.

In Re: Roman (United States Immigration Services, July 2011)

2011-07-09 in Cases Won

Legal challenge:

A conditional permanent resident submitted a request to remove the conditions of his residence with another attorney. The United States Immigration Services issued a notice of intent to deny the application and terminate his resident status on the grounds that his marriage was fraudulent. Action Taken: Chicago Immigration Advocates took over the case and filed a response to the intent to deny. The response refuted USCIS ‘allegations of marriage fraud and alleviated his concerns about the client’s marriage. Result: USCIS eliminated the conditions of our client’s residence and he is a permanent resident without conditions and plans to submit the application for naturalization.

In Re: R. and S. (5/31/2011)

2011-05-31 in Cases Won

In Re: -, R & S, (Chicago Immigration Court, May 31, 2011). Legal challenge:Our clients, husband and wife, were detained, paroled and released in the United States at the Canadian border, they stated fear of returning to their country of origin. ACTION TAKEN: Chicago Immigration Advocates filed applications for asylum, withholding of deportation, and deferral of deportation in accordance with the Convention Against Torture based on their fear of returning to their country on the basis of religious persecution. Result: The Immigration Court considered that our clients established that they were practicing Christianity, and that in the future, they will be persecuted by the government of their country in the Middle East. The Immigration Court also found that clients were previously persecuted due to their religious beliefs in their home country.

In Re: Irenio, (Chicago Immigration Court, May 17, 2011)

2011-05-17 in Cases Won

Legal challenge:

Our client faced termination of his permanent resident status and deportation for his entry into an allegedly fraudulent marriage. Action Taken: Chicago Immigration Advocates stated at trial that the legal provisions by which USICE sought to revoke and deport our client did not give USICE authorization to do so. Result: The Immigration Court ruled that USICE improperly charged our client and, furthermore, failed to fulfill its obligation to establish that our client’s marriage was fraudulent. Today, our client is once again a legal permanent resident.

In Re: Adam, (Chicago Immigration Court, May 9, 2011)

2011-05-09 in Cases Won

Legal challenge:

Our client was charged with deportation for a crime related to possession of a controlled substance. He was a citizen and national of Ukraine, who entered the United States as a Legal Permanent Resident. Action Taken: Chicago Immigration Advocates submitted an application for cancellation of removal for certain permanent residents on behalf of our client. Results: The Immigration Court found that our client deserves a favorable exercise of discretion based on his long residence in the United States, his considerable family connections and other favorable factors. Our client remains in the United States to this day as a lawful permanent resident.

In Re: Enrique, (Chicago Immigration Court, April 5, 2011)

2011-04-05 in Cases Won

Legal challenge:

Our client was charged with deportation because he entered the United States without inspection. Action Taken: Chicago Immigration Advocates submitted an application for the U Visa because he was a victim of domestic violence by his wife who is a citizen of the United States. We also file a waiver of inadmissibility for your unlawful presence in the United States. Result: United States Immigration Services approved the pardon and U Visa applications. The Immigration Court closed our client’s deportation case. Our client is in the United States on a U Visa and awaits adjustment of status.

In Re: Octavio (United States Department of State, 2011)

2011-03-09 in Cases Won

Legal challenge:

Our client was placed in deportation proceedings for failing to marry his wife within 90 days of entering the United States, pursuant to the terms of his K-1 visa. Our client was not eligible to adjust his status in the United States. Action Taken: In Immigration Court, Chicago Immigration Advocates convinced the judge to give our client voluntary departure so that he can return to the United States, this time on an immigrant visa based on marriage. Following our client’s departure, Chicago Immigration Advocates submitted applications for an immigrant visa and a waiver for his illegal presence in the United States based on the extreme hardship of his citizen wife and child. Result: US Citizenship and Naturalization.