It may be hard to believe, but conviction of a crime for driving under the influence could constitute an aggravated felony, as a crime of violence, and thereby make an alien criminal deportable.
A panel of the Board of Immigration Appeals (BIA) held in the case of In re Magallanes, Int. Dec. 3341(BIA 1998) that an alien convicted for drunken driving while his driver’s license was suspended, revoked, or in violation of a restriction, committed an aggravated felony, and was therefore deportable.
Under the Immigration & Nationality Act Section 101(a)(43), the term aggravated felony includes “a crime of violence, for which the term of imprisonment is at least one year.” “Crime of violence” is defined in Section 16 of Title 18, of the United States Code.
As defined in 18 USCS Section 16, a “crime of violence” means an offense that has as an element, the use, attempted use, or threatened use of physical force against the person or property of another, or any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
In Magallanes, the Defendant was initially convicted of DUI in Arizona while his license was suspended, due to a prior DUI conviction. He received a sentence of five years probation and four months in prison under the first DUI conviction. However, he violated his probation, and his probation was therefore revoked. Subsequently, he was sentenced to 2 1/2 years in prison.
The BIA analyzed Supreme Court decisions and decisions of the Federal Courts and determined that there was a high risk of serious injury and/or death from drunken driving. Therefore, the Defendant had committed a crime that had “enormous potential to result in harm.”
In analyzing the Magallanes decision, one must note that Magallanes was not found deportable after his first offense for DUI. Rather, he had previously had his license revoked or suspended, and had failed to following the terms of his suspension. Therefore, he was found not only driving while intoxicated, but also driving when he had no privilege to do so. Secondly, Magallanes received a sentence of greater than one year, which triggered the aggravated felony provisions of the INA. The case is noteworthy because it demonstrates, once again the creeping and insidious nature of the deportation consequences arising out of an ever expanding list of criminal violations.
Copyright, Farhad Sethna, 1998. All Rights Reserved.