DWI is not a deportable offense. Please allow me to repeat that: in and of itself, a DWI conviction will not cause your client to be deported. Not one, not two, not even three DWIs. It just isn’t an offense listed under the Immigration and Nationality Act as one that will make your client removable.
Nonetheless, there are serious reasons to worry about your non-citizen defendant’s DWI conviction. Here are five.
First, a DWI conviction can make it harder for an undocumented defendant to get an immigration bond. Indeed, Dallas ICE — where most defendants with ICE holds are headed — will automatically set high bond amounts for defendants with DWI convictions, from $14,000 for one DWI, all the way up to $23,000 for three DWIs. While an immigration judge sometimes has the power to reduce the bond amount, they often will not exercise it if they consider the non-citizen a danger to the community.
Second, a DWI conviction can make it harder for the defendant to qualify for discretionary relief from deportation. Let’s say that your client is undocumented, in which case he’s probably removable from the United States, regardless of his criminal history. Even then, he or she may be qualify to apply for relief from deportation, like cancellation of removal for non-permanent residents: he has 10 years of physical presence, and his deportation would cause exceptional hardship to a U.S. citizen immediate relative. Well that 2nd or 3rd DWI may be just enough to tip the balance of discretionary factors against him, and the judge may decide to deport him anyways. Thus, criminal lawyers should be concerned with removability, as well as a client’s ability to prove himself worthy of discretionary relief from removal.
Third, a DWI conviction — combined with DWLS (driving with license suspended) — can make your client removable. A few courts have noted that a DWI “Plus” (plus some aggravating factor) can turn that DWI into a dreaded “crime involving moral turpitude.” The idea is that a crime involving moral turpitude is one that involves bad intent. DWI alone is a crime of recklessness, where bad intent need not be present. However, when the defendant’s license was suspended due to a prior DWI, and he or she is later arrested for DWI, then some immigration judges may be inclined to presume bad intent: he intentionally decided to drive despite the license suspension. Thus, there are some cases where a DWI “Plus” can — in an of itself — render a non-citizen removable from the United States.
Fourth, recent DWI convictions can disqualify an undocumented non-citizen from receiving the benefit of prosecutorial discretion. That’s right — just like criminal prosecutors, ICE prosecutors retain the discretion not to deport persons based on their positive factors, like strong family ties, long presence in the United States, etc. But ICE prosecutors — at least the ones in Dallas — have informally decided that a “recent DWI conviction” will disqualify the non-citizen from prosecutorial discretion.
For example, I had a client once who lived in the United States for 17 years, and a strong history of employment and community service. He also had a clean criminal record, except for a 2011 conviction for DWI. In this case, ICE probably would have exercised prosecutorial discretion and not pursued removal, but for the recent DWI.
While obtaining an outright dismissal of the DWI was probably not easy, it may have been worth it given the likelihood of obtaining prosecutorial discretion. The upshot: where a non-citizen defendant has strong equities — and is a strong candidate for prosecutorial discretion — you should strongly consider avoiding a recent DWI conviction.
Fifth, even though immigration reform is still stuck in Congress, it doesn’t hurt to speculate about the immigration consequences of DWIs under prospective legislation. The Senate Bill, passed earlier this year, created a new bar of inadmissibility for repeat DWI offenders. Specifically, it said that non-citizens with three or more DWIs would be removable. More generally, I would think that the more DWIs on your client’s record, the less likely it is that he or she would qualify for broader relief from deportation in the form of amnesty, or some other pathway to citizenship.
In summary, DWI is not currently listed as a crime of inadmissibility or deportability. Nonetheless, a DWI conviction, especially a recent one, can have immigration consequences on his chances to get (1) affordable immigration bond, (2) discretionary relief from deportation, (3) a finding of admissibility (in case it’s a DWI “Plus,” (4) prosecutorial discretion, and (5) the prospective benefits of immigration reform.
If you have any questions or comments about this article, feel free to email me at firstname.lastname@example.org.