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The Law Office of Clifton Hypsher
3780 South Broadway
Englewood, CO 80113
Tel. 303.806.5104

 

 

 

 

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What effect will a drunk driving conviction have on my resident alien status? How likely is it that a drunk driving conviction will result in removal proceedings?

The removal issue gained prominence with the release of the Board of Immigration Appeals case, In re Magallenes-Garcia (Interim Decision #3341). Magallenes was convicted in Arizona of aggravated drunk driving, a felony, and sentenced to 21/2 years in prison. Thereafter the Immigration and Naturalization Service sought to remove him from the United States under 8 U.S.C. section 1251(a)(2)(A)(iii) as an alien convicted of an aggravated felony. On appeal the BIA determined that:

An alien who is convicted of aggravated driving while under the influence and sentenced to 21/2 years in prison was "convicted of a crime of violence"within the meaning of section 101(a)(43)(F) of the Immigration and Nationality Act , and therefore is deportable under section 241(a)(2)(A(iii) of the Act 8 U.S.C. section 1251(a)(A)(iii)(1994), as an alien convicted of an aggravated felony.

In a subsequent case, In re Puente-Salazar (Interim Decision #3412), the BIA revisited its Magallenes decision. This case involved an alien convicted of felony drunk driving in Texas. Under Texas law, drunk driving is a felony if committed by a person with two previous drunk driving convictions. The BIA concluded, as it had in Magallenes, that drunk driving by its nature involves a substantial risk of injury to persons and property and therefore met the definition of a "crime of violence."

The issue of deportations based upon DUI convictions was finally settled in Leocal v. Ashcroft, 543 U.S. 1(2004). There the U.S. Supreme Court found that DUI is not a "crime of violence" for purposes of 8 U.S.C. section 1251 where state law did not require a culpable mens rea for conviction. In other words, the statory language should not to be interpreted to inlcude crimes such as DUI where criminal liability was based upon negligence or strict liability.

Persons facing simple DUIs (i.e., not a crime requiring culpability such as aggravated driving under restraint) in Colorado should not be overly concerned about being deported solely for drunk driving. What should be of concern is that a drunk driving conviction can be factored into decisions such as whether to allow permanent residency or citizenship. Persons with one or more drunk driving violations already on their record must be particular careful to avoid any additional convictions.

 

 

Call Attorney Cliff Hypsher today for a free telephone consultation at 1.877.362.9091. Payment plans available.