The answer is “it depends.” If you are an undocumented (illegal) immigrant, a DUI arrest can immediately lead to immigration proceedings and potentially being deported. The best choice you can make is to hire a lawyer immediately.
If you are in the US legally, then a single DUI conviction—on its own—will not result in deportation. The rules for deporting immigrants based on crimes come largely from the Immigration & Nationality Act (INA), which does not list DUI as a deportable crime. It also does not list DUI as a reason to deny an immigrant their green card.
However, DUI is a charge that is often combined with other criminal charges, and can easily become a situation where a conviction will affect your immigration status, or even potentially result in deportation. Additionally, DUI does count against you in some forms of immigration applications, such as DACA for minors, or the naturalization process.
We’ll look in detail at all situations where a DUI affects your immigration status.
DUI’s and Immigration Status
The key determinant that the INA uses to determine which crimes affect immigration status is whether a crime involves criminal intent (strictly speaking, whether it is a “crime of moral turpitude”). DUI is not commonly interpreted as requiring criminal intent. Thus, even if you plead Guilty or No Contest to a DUI charge, or you’re convicted, the charge does not lead to any action involving your immigration status. You will not be deported nor will your permanent resident status (“green card”) or citizenship be denied on these grounds.
This is true even if your DUI injured someone—indeed, even if your DUI led to a death. DUI manslaughter is a serious charge, but no one drinks and drives with the intention of killing someone. There is no criminal intent presumed.
However, there are complicating factors. These include a DUI that involves illegal drugs, driving on a suspended license, or DUI with a child in the car:
- Drug DUI’s. In California, DUI penalties are the same whether the intoxicant was alcohol, a legal drug, or an illegal substance. But a DUI involving illegal drugs does change things for your immigration status. That’s because the INA specifically lists drug crimes as grounds for deportation or denial of a visa/green card. The use of any controlled substance that’s banned by federal law could endanger your immigration status.
- Driving on a Suspended License. Unlike DUI in general, where no criminal intent is presumed, if you are driving after your license has been suspended or revoked, you know you’re breaking the law as soon as you reach for your car keys. The law views this as criminal intent—you knew an action was illegal, and took it anyway. So the charge of driving on a suspended license can lead to action on your immigration status. It is that charge, not the DUI itself, that could lead to deportation. This is true whether your license was suspended for a prior DUI or any other reason.
- DUI with a Child in the Car. Courts take DUI’s even more seriously when there is a minor in the vehicle, as the driver is seen as putting that minor at risk. But there are two ways prosecutors can handle this situation: they can simply seek “enhanced” (harsher) penalties on the DUI charge, or they can charge the driver with Child Endangerment in addition to DUI. That separate charge, Child Endangerment, does involve a presumed criminal intent—knowingly breaking the law—and so it can affect immigration status, potentially including deportation. A good DUI lawyer will work to get this charge dropped, protecting you from being deported.
Sometimes a DUI can be tried as a felony. In many cases felonies do lead to immigration action, but not in the case of DUI. A felony DUI is not on the INA’s list of aggravated felonies and cannot be used against you in this way—but it could affect your future if you seek residency through DACA or if you want to become a citizen.
In 2012 President Obama announced a new “Deferred Action for Childhood Arrivals” policy (DACA). This policy is designed to help young undocumented immigrants who arrived in the US before the age of 16. Rather than seeking to deport them, it created a “deferred” status where these immigrants can go to school, get a driver’s license, and work toward eventual citizenship.
Note that this policy is not a law, but an enforcement recommendation. Thus, the way it is applied is very uneven. Two young immigrants with the same record could get very different results in applying for deferred status. However, all DACA applicants must show that they are of “good moral character,” which includes a criminal background check.
In many cases, a DUI will cause your application for deferred status to be rejected.
It may help, however, to get your DUI expunged before you apply. An expunged DUI will not necessarily count against you, although any criminal record can be considered when evaluating your application.
Naturalization and Citizenship
The process of becoming a US citizen is called naturalization. Just like DACA, the requirements for naturalization include being of “good moral character.” Again, having your DUI expunged may increase your chances of being approved for citizenship, but it doesn’t guarantee that outcome.
Immigration and DUI laws can be complicated. The best way to protect your future is to fight your DUI charge aggressively. We’re happy to match you with a DUI lawyer who will give you a FREE consultation on your case. Fill out the form to your right and get your consultation today.