Musings on Immigration

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IMMIGRATION REFORM AND DUIs

DUI is a common crime that could tank your chances at lawful immigration status.

When it comes to immigration and criminal offenses, many people think that violent crimes, drug offenses, and gun crimes will harm your chances of getting lawful status the most. But one crime that has been creeping up as a major road block to achieving lawful status is the DUI (driving under the influence of alcohol or drugs).

DUIs and DACA

Previously, immigration typically only considered DUIs as a negative factor when evaluating the case as a whole. A conviction for DUI wouldn’t automatically and definitively prevent someone from getting lawful status. However, in 2012, when the Department of Homeland Security announced Deferred Action for Childhood Arrivals (DACA, the “Dream Act,” or “accion deferida”), many were surprised to see that DUIs were included on the list of “significant misdemeanors” that would definitively and permanently bar someone from receiving DACA.

The guidelines state that “significant misdemeanors” are:
Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,
If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.
(http://www.dhs.gov/deferred-action-childhood-arrivals).
When broken down, these guidelines state that they are going to punish someone who:  

Commits domestic violence
Commits an abusive or exploitive sexual act
Burglarizes
Carries unlicensed firearms
Deals drugs;  or
Someone who spends an entire 3 months in jail
just as harshly as someone who had too much alcohol in their blood while driving.

Notice the guidelines don’t say that the DUI had to result in any harm to anyone; you could be pulled over for blinking taillights while driving safely otherwise and simply have a little too much alcohol in your system.
While all of the crimes listed in the DACA guidelines involve actual or significant risk of harm to others (and no one is debating how dangerous drunk driving is), violent, sexual or drugs crimes were historically treated and punished much more severely than a DUI. Many people still don’t realize that you can shoplift and possess marijuana and get DACA, but you can’t get it with a DUI.

Georgia: Tough on DUIs

In Georgia, and in many other states, if your blood alcohol content (BAC) is over a .08, you are “per se” driving under the influence of alcohol regardless of your age, gender, or tolerance for alcohol (http://www.madd.org/laws/law-overview/08_Per_Se_Law_Overview.pdf). 

While there are lots of nuances you should discuss with your lawyer,  it is extremely difficult to fight a DUI, regardless of the circumstances, if there is evidence that your BAC was .08 or higher. Even more importantly, most states have lesser DUI offenses for drivers with BACs below .08, but in Georgia, you may be charged with a full DUI even if your BAC is .01!

Without a doubt, immigration is taking DUIs more seriously, and states are making it easier than ever to charge someone with a DUI. Many of the rumors and proposals for immigration reform have specifically addressed immigrants with DUIs or specifically excluded immigrants with DUIs from benefiting from reform.
While we don’t yet know the specifics of immigration reform, there is a possibility that the one-beer-too-many you had before driving away from a party 20 years ago could now drown your chances of getting legal status in the United States.

Posted by Anna Erwin, Associate Attorney

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