DUI AND DEPORTATION

© 2013 Attorney Farhad Sethna

In previous articles on my blog, I had written about the immigration consequences of criminal convictions.  One class of criminal activity results in perhaps the greatest number of aliens affected by deportation consequences.  This is the class of offenses under DUI (driving under the influence) or driving while intoxicated.  In some states, this may be called OVI (operating a vehicle under the influence). The “influence” refers to consumption of alcohol which impairs the driver.  In some cases this might mean a drug or other substance which impairs the driver’s ability.

In either case the consequences of a DUI /OVI are severe:

It used to be that a conviction of a deportable offense would trigger an alien’s arrest by ICE.  However, the Board of Immigration Appeals held in Matter of Guerra (24 I&N Dec.37, BIA 2006) that an alien could be detained by DHS even if he or she was not sentenced, but had been charged with committing a crime indicating that the alien was a danger to others.  This of course included DUI arrests.

I have encountered several cases now where ICE agents have arrested an alien who has simply been charged with a DUI. Even though that alien has not yet had a court date or a trial, and has pled “not guilty”, ICE arrests him.

ICE’s position under Matter of Guerra is that as long as the alien presents a danger to others, the alien may be detained by ICE.  It is then up to the immigration judge to determine whether the alien should be released.

This policy results in some very harsh consequences for the alien.  If the alien is detained, it is impossible for him or her to defend himself in the underlying DUI charge.  Failing to appear for court might even subject the alien to further criminal charges including failure to appear, being classified as a fugitive or having a warrant issued for his or her arrest.

While the immigration court may order the release of an alien on sufficient bond or on such safeguards as the court deems necessary, the alien may have missed his or her court date to defend the DUI charge.  Therefore, it is very important for the immigration counsel to work closely with the criminal defense counsel to alert the DUI court of the alien’s detention by the DHS and seek a continuance of the DUI case until such time that the alien is released from DHS’ custody.

Likewise, it is important for immigration counsel to understand the nature and circumstances of the alien’s arrest.  Was it a first DUI or a fifth DUI? Is the alien eligible for any kind of substance abuse treatment which might prevent a recurrent of such incident?  Given that immigration judges have broad leeway in granting bond, an alien should be well represented and prepared to convince the immigration judge on three main points: (1) The alien does not pose a threat to the community: (2)The alien is not a flight risk; and (3) The alien is not a threat to national security.

Given the prospect of indefinite detention with no bond, it is easy to see why a simple DUI or OVI offense can cast a very grim deportation consequence over any alien.

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Copyright, Farhad Sethna, Attorney, 2013

About the author: Attorney Farhad Sethna has practiced law for over 20 years.  Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. His practice is limited to immigration and small business. With offices in Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases.  Our number is: (330)-384-8000.  Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.

This is only general legal information.  Please consult a qualified immigration attorney for advice on your specific case.

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