Dear Atty. Lou,
I petitioned my husband for a green card last year. Two months ago, he was charged with Driving Under the Influence of Alcohol. He has a hearing soon and I am afraid that he will be deported if gets convicted. I am pregnant right now and I cannot afford to lose him.
Josephine
Dear Josephine,
Under current law, an individual who is charged with a crime of moral turpitude within five years from the time of his admission to the United States may be removed or subject to deportation. In determining whether the offense charged is a crime of moral turpitude, the specific statute defining the crime is analyzed whether or not it has the element of “knowledge”.
In one case decided by the Board of Immigration Appeals, the conviction was for an aggravated DUI, and reviewing the statute in the State where it was committed, it was determined that the statute required a showing that the defendant drove under the influence, knowing that his driver’s license has been suspended, cancelled, revoked or refused. Here, the DUI is a ground for removal. But note in another case that was also decided by the Board, it also found simple DUI as not morally reprehensible because it was a regulatory offense that required no knowledge or culpable mental state, hence, may not be a ground for deportation.
It is difficult to determine whether your spouse’s case will result in deportation. If it is a case of simple DUI, then it should not be a serious concern for you. There is one controversial bill pending in Congress now and which was introduced in January 2012 that might adversely affect individuals who are without lawful status or non-U.S. citizens charged with Driving Under the Influence. This is called the Scott Gardner Act or the H.R. 3808 where the local police may be authorized to detain non-immigrants who are unlawfully residing in the United States and are caught driving under the influence of alcohol. The state or local enforcement officer may verify the individual’s status and take into custody for federal transfer an individual who is unlawfully in the United States.
This bill is currently being considered and hopefully it will not be passed into law. Just like the “secure communities” the states and localities will be forced to engage in immigration enforcement. The police officers enforcing this law will foster abuse and racial profiling which will result in the distrust of local law enforcement.
Since your husband was admitted as a green card for two years, it will be better that he should be more careful next time and avoid trouble with the law to avoid harsh immigration consequences.
I hope this information is helpful.
Atty. Lou
(Lourdes Santos Tancinco Esq .is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Suite 818, San Francisco CA 94102 and may be reached at 415 397 0808 or at 1 888 930 0808, email at law@tancinco.com. The content provided in this column is solely for informational purposes only and do not create a lawyer-client relationship. It should not be relied as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You may submit questions to law@tancinco.com).
