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Deportable Offenses

 

Can You Get Deported for a DUI or Crime?

If you are a non-US citizen that needs to know crime or DUI immigration consequences, this guide is for you. Here we review deportable crimes, DUI immigration issues and how DUI affects immigration status and green cards.

Foreign nationals convicted of a “deportable crime” can be deported back to their home country by the Department of Homeland Security (DHS) and barred from re-entering the US for a number of years.

All non-citizens including green card, F1, L1 & H1B visas can be deported

    The risk of deportation applies to ALL non-US citizens, including for example:

    • Permanent residents, green card holders and other visa holders who have lived legally in the US for decades and own homes or well established businesses 
    • Workers in the US on L1, E2, O1 and H1B visas charged with DUI or crimes 
    • International F1 visa students and J1 exchange visa scholars in the US
    • Illegal immigrants who entered the US illegally or stayed past their visa expiration
    • Refugees that have been granted asylum
    • Non-US citizens that have a dependent child who is a US citizen

    But hope is not lost.  If you are a foreign national in trouble with federal agents or the police, or have DUI green card issues, you should contact our experienced immigration and criminal defense attorneys immediately. Our skilled attorneys know how to aggressively defend you from charges with the goal of avoiding criminal conviction and deportation altogether.

    Call 844 325-1444

    for a Free Defense Consultation with our skilled team of lawyers.

       Tsion Chudnovsky , Esq Immigration, Criminal & DUI Attorney

    Tsion Chudnovsky, Esq
    Immigration, Criminal & DUI Attorney

     

    List of Deportable Offenses & Crimes

    The list of deportable offenses most common under U.S. law are:

    • Crimes of moral turpitude.
    • Aggravated felonies as defined in INA § 101(a)(43) (dozens of offenses).
    • Violent crimes, theft or forgery with imprisonment of at least 1 year.
    • Trafficking in guns, illicit drugs, humans or destructive devices.
    • Fraud, tax evasion, or money laundering with losses exceeding $10,000.
    • Rape, murder, kidnapping, child pornography or sexual abuse of a minor.

    While the above are the most common, the Immigration and Nationality Act (INA) Act 237 and INA § 101(a)(43) outline a long list of “crimes of moral turpitude” and “aggravated felony" convictions that form the basis for deportation. If convicted of these crimes an immigration judge will order the foreign national be deported unless they apply for and receive a waiver of grounds of removal.

    What is a crime of moral turpitude?

    As defined in immigration law, crimes of moral turpitude (CIMT) involve an act that is depraved, dishonest, or vile. Administrative case law has characterized moral turpitude as "a nebulous concept, which refers generally to conduct that shocks the public conscience."  Some examples are rape, fraud, murder, arson, and assault with the intention to rob or kill.

    A person may be deported if convicted of a CIMT within five years of admission to the US or if they commit 2 or more unrelated CIMTs during at any time after they are admitted. A petty offense exception may apply if the penalty for the crime is less that 1 year.

    What is an aggravated felony?

    The list of crimes considered deportable aggravated felonies under immigration law (which is different from criminal law) is extensive and defined under INA § 101(a)(43). Congress frequently adds or changes the offenses on the list. Examples of deportable crimes and offenses defined as aggravated felonies include:

    • Violent crimes, theft, bribery, counterfeiting, forgery, perjury, racketeering, or burglary with imprisonment of at least one year
    • Disclosure of classified government information
    • Rape, murder, or kidnapping
    • Domestic violence, child pornography or sexual abuse of a minor 
    • Alien smuggling
    • Owning or operating a house of prostitution
    • Fraud, tax evasion, or money laundering with victim losses exceeding $10,000
    • Trafficking in guns, illicit drugs, humans, destructive devices or explosives
    • Conspiracy or an attempt to commit aggravated felonies
    • Treason, espionage or terrorism

    Once you are convicted of an aggravated felony, it is very difficult to avoid deportation unless you can prove it is more likely than not that you would be tortured if returned to your native country. A waiver to return to the US will generally be unavailable for almost any purpose.

    What to do if Charged With a Deportable Crime

    It is critical to obtain both criminal and immigration legal counsel to develop your defense strategy and avoid a conviction that will permanently render you inadmissible to the United States.  Depending on the facts of the case, our skilled attorneys will:

    1. Work to get the charges dismissed,
    2. Fight the charges in trial, or
    3. Negotiate reducing the sentence or charge to a lesser crime that doesn't have the risk of deportation.

     

    If you have been charged with a crime or DUI, contact us for help

    Call 844 325-1444 for a Free confidential case review. It is critical to quickly evaluate both immigration and criminal defense strategies for best results.

     

     

    DUI and Immigration Consequences: Can You Get Deported for DUI or DWI?

    The short answer has historically been no if you are lawfully in the US.  In the 2004 US Supreme Court Leocal v. Ashcroft case, the court determined that a DUI is not a “crime of violence” and, therefore not an aggravated felony. The Court also ruled that a crime of violence includes “a higher degree of intent than negligent or merely accidental conduct.” Therefore, a DUI conviction has generally not been a crime for which a legal alien has been deported for.

    However, recent rule changes are causing serious DUI immigration consequences for nonimmigrants charged with a DUI or related offense if not handled properly.

     Can you get deported for drunk driving, DUI, or DWI? How do criminal charges affect citizenship?

    DUI Arrest Causes H1B, F1, J1, O1 and L1 Visas to be Revoked

    In November 2015, the US Department of State (DOS) enacted a policy authorizing consular officers to automatically revoke the nonimmigrant visas of individuals arrested for, or convicted of DUI, DWI, or similar alcohol-related crimes. The DOS has issued guidance on this policy to clarify how it is to be implemented.

    Prudential Revocation of Nonimmigrant Visas for DUI Arrests

    According to DOS policy, the DOS is authorized to "prudentially revoke" nonimmigrant visas such as H1B, F1, J1 and L1 visas on the basis of potential ineligibility for health related reasons when it is notified that a visa holder was arrested or convicted of a DUI or related offense. 

    How Visas are Revoked:

    1) DOS Notified of DUI Arrests. Under the DHS Secure Communities Program, when a nonimmigrant is arrested for a DUI or other crime and booked by local law enforcement, their fingerprints are submitted to the FBI for criminal history and warrant checks. Data is also sent to ICE and the DOS is notified if the person is in the US on a nonimmigrant visa. This process now typically occurs quite rapidly.

    2) Arrest triggers visa revocation. Depending on the nature of the arrest, consular posts can choose to revoke the foreign national’s visa by simply sending a mailed letter or email with a notification similar to the following:

    "Please be advised that your (F1, H-1B, L-1A) visa has been revoked by the US Department of State in accordance with the US Immigration and Nationality Act. 
    This action is based on the fact that subsequent to visa issuance, information has come to light indicating that you may be ineligible to receive a visa, such that you should be required to reappear before a US consular officer to establish your eligibility for a visa before being permitted to apply for entry to the United States. Note that you will be unable to travel on your current US visa.  If you would like to travel to the United States, you must re-apply for a new visa."

    It is important to note that DOS may revoke a visa simply on the basis of an arrest and determination of guilt is NOT required.

    3) A revoked visa prevents reentering the US. Once a foreign national’s visa is revoked, they cannot use the visa to enter the US without first reappearing before a US consular officer and re-establishing their visa eligibility. If a foreign national attempts to enter the US with a revoked visa, they will be flagged prior to boarding a flight, or denied entry into the US upon landing.

    4) DOS requires physician review to consider reissuing visa.  DOS policy is to refer anyone with a single DUI arrest within the past 5 years, or two or more DUIs in the past 10 years, to a panel physician for evaluation. The prudential revocation policy serves as an extension of this practice, revoking a person’s visa if a DUI occurs after the visa is issued. If the individual then leaves the US and wishes to return, a new visa application will be required, at which point the consular post abroad typically will refer the applicant to a panel physician for examination and certification.

    Does a Prudential Visa Revocation Invalidate Status in the US?

    If a foreign national is already within the US, they may stay until the visa expires. Once a person enters the US, their immigration status is determined by their I-94 record. DOS, however, has issued notices to foreign nationals arrested for DUI related offenses requiring them to immediately depart the US and report to their consular office abroad. A visa revocation can be grounds for court ordered removal by Immigration and Customs Enforcement.

    DOS policies raise concerns for foreign nationals

    DOS’s prudential revocation policy causes significant potential concerns and risks for foreign nationals:

    1. If a foreign national is arrested for a DUI, they need to resolve the charges before leaving the country.
    2. What happens if a foreign national no longer uses the email address provided to DOS when they applied for a nonimmigrant visa and they don't receive a revocation notice?
    3. What if the foreign national was mistakenly arrested but the consular post was notified of the arrest anyways?
    4. What if the foreign national is not guilty of the criminal charge and the charges are dismissed?  Determination of guilt is not required by DOS in order to trigger a visa revocation. 

    J2 dependent visas subject to revocation as well

    The DOS directive also states that “if a J1 visa is revoked, the DOS will usually revoke any J2 dependents’ visas as well.” This can cause serious issues for families living in the US.

     

    Can a DUI Affect Getting a Green Card?

    If you are applying for a green card or permanent residence, a California DUI conviction can cause problems when trying to change immigration status. A DUI conviction can under some circumstances bar you from receiving a green card or from eventually becoming a US citizen. 

    Aggravating factors can make a DUI deportable

    The facts around each person's DUI can vary dramatically and will be taken into account during any immigration evaluation. Some DUIs also involve an accident, reckless driving, injury to others, driving on a suspended license or other aggravating factors that lead to multiple convictions that could make you removable. Another aggravating factor would be if the DUI was due to driving under the intoxication of illegal drugs such as those on the DEA list of controlled substances.

    Federal immigration interpretation of state criminal convictions can vary as many determinations are subject to the interpretation of different agents and judges.  Each case needs to be carefully evaluated for risks in how an immigration evaluation would look at the conviction and immigration status. Our experienced immigration and DUI defense attorneys will evaluate the specific facts to your case and know how to advise and defend you for the best possible case outcome.

    Can a DUI Prevent Me From Becoming a US Citizen?

    The process of going from having a green card to becoming a US citizen includes an application and examination process that includes a test of “good moral character” for the 5 years prior to the application. A DUI conviction on your record can complicate that, especially if there are aggravating factors. It is generally a good idea to allow some time to pass from the DUI with a clean driving record and to follow any court instructions carefully. That includes any prescribed treatment. It is advisable to consult with an experienced attorney to review the specific facts for your case.

    Last updated 3.12.2018


     
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    Disclaimer

    This information does not constitute legal advice and is not a substitute for individual case consultation and research. No representations are made as to the accuracy of this information and appropriate legal counsel should be consulted before taking any actions.  Contact us for a free consultation regarding your specific case and facts.


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    Chudnovsky Law is a California based law firm practicing in the areas of immigration, criminal defense, DUI defense & injury law. Our firm offers a rare team of experienced multi-lingual immigration attorneys and top criminal defense and injury attorneys.

    The intersection between immigration and criminal law is one of the most complex and technical areas of US law. Chudnovsky Law is recognized as a leader in criminal defense for clients from all countries and addressing the immigration consequences of criminal charges.

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