Non-US citizens face all the California DWI penalties outlined above with the added complications of immigration related consequences.
Recent rule changes are causing serious DUI immigration consequences for foreign nationals charged with a DUI or related offense if not handled properly.
Foreign nationals charged with DUI should be represented by a law firm that has both immigration and DUI expertise to carefully navigate the following additional consequences:
1) Visas can be revoked
US Department of State consular officers can automatically revoke the visas of individuals arrested for DUI. This typically occurs quite quickly before you have even had a chance to defend yourself. A guilty judgement is NOT required.
The DOS has issued guidance on this policy to clarify how it is to be implemented. Law enforcement agencies share bench warrant and arrest records quite rapidly and visa holders are often surprised by the quick receipt of a visa revocation notice even before their case has been heard.
DOS “prudential visa revocations” affect nonimmigrant visa holders and their dependents such as:
- International F1 visa students
- Exchange visitors and scholars on the J1 visa
- H1B highly skilled workers and others
A revoked visa prevents reentering the United States. Once a foreign national’s visa is revoked, they cannot use the visa to enter the US without first reappearing before a US consular officer and re-establishing their visa eligibility. If a foreign national attempts to enter the US with a revoked visa, they will be flagged prior to boarding a flight, or denied entry into the US upon landing.
2) Undocumented (illegal) immigrants can face deportation from DUI arrest
Undocumented immigrants arrested for DUI can face immigration proceedings and deportation. It does not matter whether you are found guilty of DUI or not. One key is whether Immigration and Customs Enforcement (ICE) become aware of your arrest and issue an immigration hold. ICE can become aware of your arrest by:
- Law enforcement information sharing under the DHS Secure Communities Program that causes rapid fingerprint and record sharing between law enforcement agencies and ICE.
- When the police arresting you become aware you are not a legal immigrant and they inform ICE while you are in custody.
ICE tends to focus their limited resources on pursuing those with a criminal record. It is important to fight DUI charges and keep your record free of criminal convictions if possible to minimize the odds of a getting caught up in a removal proceeding.
Hiring a DUI lawyer with immigration expertise can be critical to navigating this complicated area of US law.
3) Deportation for DUIs with aggravating factors
DUI convictions have historically not been grounds for deportation of permanent residents (“green card” holders) and other legal aliens. In the 2004 US Supreme Court Leocal v. Ashcroft case, the court determined that a DUI is not a “crime of violence” and, therefore not an aggravated felony. Aggravated felonies are one class of convictions that can be grounds for deportation.
However, DUI convictions with “aggravating factors” can cause deportation, problems adjusting immigration status or problems re-entering the US.
Some examples of aggravating factors include:
- DUI when driving with a suspended license
- Driving under the influence of drugs such as those on the DEA list of controlled substances
- DUI involving child endangerment charges such as being convicted of DUI with a child in the car
- Multiple DUIs or a DUI topping the list of convictions for other crimes
Foreign citizens facing DUI charges must be represented by a DUI and immigration lawyer who understands both immigration and DUI defense law.
Every non-citizen case is unique and requires defense strategies that carefully consider and avoid the potential consequences of a DUI conviction on immigration status.