Whether a person can remain in the United States after a DUI conviction depends on several factors: the person’s citizenship status, that person’s history, and the severity of the DUI. Each factor must be analyzed in order to determine the immigration consequences, if any, of a DUI conviction.
First, let’s look at a person’s immigration status. If a person is a US citizen, either by birth or naturalization, that person has an irrevocable right to remain in the United States. A citizen’s criminal history and the severity of the offense (or any offense for that matter) is irrelevant to the analysis.
If, however, the person is a US Resident the analysis becomes more complicated. A Resident of the US has fewer rights than that of a US citizen because a Resident is usually a citizen of another country who has been given permission to reside in the US for an extended period of time. Typically, Residents are in the process of applying to become naturalized US citizens. As such, a Resident does not have an irrevocable right to remain in the US. The focus must then shift to the person’s history. If the person has a checkered criminal past or a prior DUI, the case is harder for that person to successfully argue that he/she should have the right to remain in the US. If the DUI is so severe as to cause someone bodily injury or death, then the person’s chances of being able to remain in the US decrease substantially.
An immigration status that is lower than that of a US Resident is that of a person on a Visa. Individuals on a Visa are not as invested in the Naturalization process as a Resident is. As such, it is easier for a person to lose his ability to remain in the US when suffering a DUI conviction.
Lastly, if the person who is arrested for the DUI is here without legal permission (undocumented) or has been previously deported and has illegally reentered the country, there is little chance that the person can argue that they should not be subject to deportation. The person who entered illegally technically does not have permission to be in the US. As such, he/she is deportable regardless of the level of criminal offense committed or criminal history. An individual who was previously deported and illegally reentered after deportation is looking at a federal violation based upon the illegal reentry and the DUI. That individual has the least rights of anyone when it comes to remaining in the US.
In closing, there are no absolutes in the law. There are especially no absolutes when it comes to immigration. Stay tuned for the next blog entry when I address travel bans when having a DUI on one’s record.