I represent a lot of people who are not U.S. citizens. Whether you’re here on a student visa, an H-1B (H1B) visa, have some other lawful status, or no lawful status at all, you have to think about how your criminal case (including DUI) will affect your status. Silicon Valley thrives on the talent and energy of people from all over the world coming here to make the things that make the world a better place. But as law enforcement casts a wider and wider net—from San Francisco, to San Mateo, to Palo Alto, to San Jose—they’re not only catching the bad guys, but also people who are not criminals—just caught in the wrong place at the wrong time.
For non citizens, the consequences can be devistating. In some counties, if you are taken into custody, Immigration and Customs Enforcement (ICE) will be notified, and they can put a hold on you, preventing you from being released. If ICE does put a hold on you, then after you complete your sentence on your criminal case, then you are turned directly over to the custody of ICE to face deportation proceedings. So if you or a loved one is arrested, and they have no lawful status, it is important to call a bail bond company and get them out as soon as possible. There may still be federal proceedings in the future, but it is much easier to defend your case if you’re out of custody.
I cannot and do not give immigration law advice. Immigration law is too complex and changes too frequently. Instead, I work with practicing immigration attorneys to address the immigration aspects of the criminal case. No matter what your immigration status, it’s important to minimize the impact on immigration consequences.
One thing that applies in every immigration case: you will need to get certified copies of the accusation, either the complaint or “information” that’s filed against you, and you will need certified copies of the sentencing documents. If you are in the middle of immigration proceedings while your criminal case is pending, then you will probably need certified copies of each court docket as the case progresses.
The feds on the immigration side don’t interpret crimes the same way they are defined under state law. For example, a misdemeanor domestic violence charge in state court can become an “aggravated felony” under federal immigration law if a sentence of 365 days in custody applies—even if it is suspended pending successful completion of probation. That can be true for any misdemeanor “violent crime” with 365 days of custody attached at sentencing.
Some crimes, however, carry greater consequences than others. Generally, crimes of “moral turpitude” have greater consequences on the immigration side than other crimes. “Moral turpitude” generally refers to crimes of dishonesty, but domestic violence, fleeing from the police, and sex crimes are also moral turpitude.
The feds are also very concerned with drug crimes. Even though two people may be caught with the same amount of a controlled substance, if one plea bargains down to simple possession and the other pleads to possession for sale, the consequence can be catastrophic for the second person. Though there may be exceptions for personal possession or use of drugs, any charge that implies drug dealing or drug trafficking, will likely be deemed an aggravated felony and result in automatic deportation—even if you’re a lawful permanent resident and have a green card.
A first time Driving Under the Influence charge, or DUI, is not presently a crime of moral turpitude, nor is it considered a crime of violence. However, multiple convictions or other circumstances may carry greater consequences in front of an immigration judge.
The law is always changing in this area, and the DREAM Act may make new options available. However a criminal history, including DUI, can exclude a person from the DREAM Act. That’s why it is critical that if you or a loved one faces criminal charges, you get the best legal representation you can.