There are many reasons not to drink and drive, but now we’ll give you one more. As part of President Obama’s executive action on immigration reform, the Department of Homeland Security has a new set of civil immigration enforcement priorities. The new priorities are divided into Tier 1, Tier 2, and Tier 3 priorities from highest to lowest. Tier 1 includes suspected terrorists, gang members, aggravated felons, and other top priorities for removal. Tier 2 includes individuals convicted of three or more misdemeanors, excluding minor traffic-related crimes, as well as individuals convicted of any one “significant misdemeanor.” Under the new memo, “driving under the influence” is considered a “significant misdemeanor.” Thus, a single DUI conviction could potentially make you a Tier 2 priority for removal enforcement purposes. Tier 3 encompasses individuals who have been ordered removed since January 1, 2014.
The prioritization of immigration enforcement against individuals with DUI convictions is significant because the Immigration and Nationality Act does not explicitly make a DUI conviction a deportable offense. Thus, under current law, an individual cannot be placed into removal proceedings as a result of a DUI conviction unless the conviction also constitutes a “crime involving moral turpitude” or an aggravated felony, which is rare. While the memo does not change the law, it does mean that Immigration & Customs Enforcement (“ICE”) will be significantly less likely to exercise prosecutorial discretion by declining to push for removal in cases involving individuals with DUI convictions. In other words, if you are undocumented or removable for any other reasons and you have a DUI conviction, ICE is likely going to push for removal in your case.
Further, the consecutively issued memo on the soon-to-be established deferred actions for parents of U.S. citizen and lawful permanent resident children (“DAPA”), which we discussed in a previous blog post, also indicates that individuals with a conviction for a DUI or any other significant misdemeanor may not qualify for the new benefit.
If you have been arrested for or charged with a DUI and you are not a citizen, you should consult with our criminal legal team immediately to minimize the consequences for your immigration status. The benefit of working with Wilson Law Group is that our criminal and immigration attorneys work together to achieve the optimum result in your case.
If you already have a DUI conviction, don’t despair quite yet. For one, it’s too early to tell how the Department of Homeland Security (“DHS”) will implement the memo when it comes to enforcement and the DAPA program. DHS may not treat all DUIs alike. For example, DHS may take into account the age of the conviction and evidence of rehabilitation. More importantly, the new removal priorities do not mean that you will be automatically deported. You should still have the opportunity to seek relief from deportation in the form of cancellation of removal, asylum, adjustment of status, etc. If you are placed into removal proceedings, you should always discuss the specific facts of your case and your relief options with an experienced immigration attorney.