There are many reasons not to drink and drive, and now there is one more. Not only drinking and driving can put you in jail, but now those who are not U.S. citizens can end up getting deported for it as well.
As part of President Obama’s executive action on immigration reform, the Department of Homeland Security (DHS) has a new set of civil immigration enforcement priorities. The new priorities are divided into tiers, tier 1, tier 2, and tier 3 priorities from highest to lowest. Tier 1 includes suspected terrorists, gang members, aggravated felons, and other “undesirable immigrants” viewed as 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 now 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 important because the immigration law alone does not explicitly make a DUI conviction a deportable offense. Thus, under the current immigration law, an individual is not supposed to be placed into removal proceedings as a result of a DUI conviction alone, 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. 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 your removal.
Additionally, another memo discussing the hotly contested deferred actions for parents of U.S. citizen and lawful permanent resident children (“DAPA”), also indicates that individuals with a conviction for a DUI or any other significant misdemeanor may not qualify for this new benefit. (Not yet available anyway).
If you already have a DUI conviction, don’t despair quite yet. The new removal priorities do not mean that you will be automatically deported. You should still have the opportunity to seek relief from deportation. 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.
Here in New Jersey, we are already seeing the results of this new policy. Recently, there has been an alarming increase of cases where an individual is arrested by ICE because that person happens to have a DUI conviction (within the last 5 years). It appears, and has been confirmed by an ICE Officer in New Jersey, that DUI is now not just a Tier 2 priority but is quickly becoming one of the top enforcement priorities.
Those who get arrested, often time sit in jail for a considerable amount of time before an immigration judge sets a bond amount. Bond hearings are no joke either, and it should be noted that the DHS is not likely to go below $8,500 for bond in Elizabeth if an individual has a DUI conviction.
If this happens to you or anyone you know, the most important thing is not to panic. Accepting an order of removal is not the way to make the problem go away. If anything, signing such a document means that you agree to be removed (deported) instead of fighting for your freedom.
So, if you do make a mistake of drinking and driving and you are not a U.S. citizen, should you then fight the DUI charge to avoid potential immigration problems? As with many things, the answer is “it depends.”
In other words, if you are guilty “as hell,” and you choose to go to trial over your DUI charge, you may very well end up guilty and now you will have additionally created a record for ICE attorneys to obtain (the trial transcript), in which a police officer testifies under oath as to all of your wrongdoings (degree of intoxication, your bad behavior, the dangers you created, etc.). Plus, if you happen to be undocumented, you will also likely be found guilty of most, if not all other charges, such as unlicensed operation of a motor vehicle and miscellaneous other moving violations.
In summation, just don’t drink and drive. Spare yourself the trouble.