Criminal and Immigration Law Update – The DUI Nexus
Will a DUI get you deported? Well, the text of House of Representatives Bill 875 for the 119th Congress has been released. Now called the Protect Our Communities from DUIs Act, it would make immigrant aliens who drive under the influence of alcohol or drugs inadmissible and/or deportable. There is one sentence in the bill that will be particularly challenging for defense lawyers representing alien DUI clients. This is so even where their DUIs are reduced to lesser charges like, what we call in Georgia, reckless driving.
Inadmissible v. Deportable
8 U.S.C. § 1182 (a)(2) of the Immigration and Nationality Act (INA) will, under the proposed law as it stands, be amended with a new prohibiting section (J) so that not only are aliens who are convicted of DUIs inadmissible (i.e., not eligible to enter into the United States), but also inadmissible will be anyone “who admits having committed, or who admits committing acts which constitute the essential elements of an offense for driving while intoxicated or impaired, as those terms are defined under the law of the jurisdiction where the conviction, offense, or acts constituting the essential elements of the offense occurred.”
As to whether someone can be deported for DUI, the criteria for deportable is to be found guilty, period – no admission of facts that don’t result in a DUI conviction as defined in the jurisdiction of said conviction. I doubt HR 875 will cast a wider net as it proceeds through Congress. As defined under federal law, an alien is a person who isn’t a U.S. citizen or national. See 8 U.S.C. § 1101(a)(3) (INA). Subject to some exceptions, per 8 U.S.C. § 1182 (a), aliens who are inadmissible are “ineligible to receive visas and ineligible to be admitted to the United States[.]”
Hypothetical Considerations
Thus, during a hearing where the facts of a plea are placed on the record, even if the charge pled to isn’t a DUI, if facts are stated or agreed to which would otherwise support a DUI conviction, would the plea transcript be usable to preclude reentry into the U.S. at a later time? For instance, consider a defendant alien (client) who isn’t otherwise inadmissible or deportable admitting to facts consistent with a DUI. Later, they leave the country. Could the transcript from the plea be used against them when they try to re-enter the U.S.? What if the client is already possibly deportable or later becomes so? Will the plea transcript be used by the government to pile-on the client in an already bad situation? Could renewals of visas be affected?
What’s an Alien (and their lawyer) To Do?
On behalf of my clients, I won’t agree to facts on the record that conceivably support a DUI conviction. This will be so even if the charge pled to isn’t reportable to our Department of Driver Services. Examples include what we call in Georgia a Basic Rules violation, or even an expired tag. Stipulating to facts that support a plea, but which are not explicitly put on the record, has to be done. The judge would not be doing their job without such minimal acknowledgement by the defendant. And, without any actual facts being stated, it seems that should be okay for the client.
Unknown Unknowns
Can you get deported for a DUI? While I am not an immigration lawyer, and although the proposed section of HR 875 on deportability is not as inclusive as the preceding part of the bill on inadmissibility, given that student and work visas are at stake, this may in time prove to be a distinction without a meaningful difference. And what about past clients and the retroactive application of the law to deport? While ex post facto laws are prohibited, HR 875 applies to immigration status; it doesn’t create a new crime per se as driving under the influence has been illegal for a long, long time.
While one could argue HR 875 is a criminal ex post facto law as applied, without a clause grandfathering in priors, I don’t think that will work. Much depends on how aggressively the government goes after alien defendants. Also, given that predicting how the law will be interpreted by courts is akin to reading chicken entrails to fill out one’s March Madness bracket, all non-citizens and non-nationals in the U.S. now facing alcohol related moving vehicle offenses (and their lawyers) should be very careful vis-à-vis case resolution.