Non-citizens arrested for DWI in Minnesota face potential, life-altering immigration consequences. Non-citizens should consult with a knowledgeable DWI lawyer and an immigration lawyer before resolving any DWI case, leaving the U.S., or filing any immigration documents. DWI charges certainly can affect a non-citizen's ability to remain in or re-enter the U.S., obtain a visa or green card, or become a naturalized citizen.
Most everyone arrested for DWI is fingerprinted. These fingerprints are entered into a national database accessible to the U.S. Citizenship and Immigration Services (U.S.C.I.S.) and the Department of Homeland Security. Failure to disclose arrests and convictions to the U.S.C.I.S. in immigration filings can constitute fraud and lead to removal or inadmissibility. Non-citizens must be fully candid in disclosing prior arrests and convictions for this reason.
For clarity, this article uses the vernacular of the U.S. Government when referring to non-citizens, such as legal alien, illegal alien, permanent resident alien (green card holder), inadmissibility (denial of entry into U.S.), removal (deportation), and naturalization (becoming a U.S. citizen).
Right to Effective Assistance of Counsel before Pleading Guilty
In Padilla v. Kentucky,130 S. Ct. 1473 (2010), the U.S. Supreme Court ruled that criminal defense lawyers must advise non-citizen clients that they will or may be removed from the U.S. as a result of their guilty pleas in criminal cases. The Court's decision is based on a non-citizen's Sixth Amendment right to effective assistance of legal counsel in criminal cases. The duties of counsel recognized in Padilla are broad. After Padilla, where immigration law is unambiguous, lawyers must advise their non-citizen clients that removal "will" result from a conviction. Second, where the immigration consequences of a conviction are unclear or uncertain, lawyers must advise that removal "may" result. Finally, lawyers must give their clients some advice about removal; counsel cannot remain silent about immigration. Arguably, Padilla also extends a lawyer's duty to advise the client of other immigration consequences such as inadmissibility and denial of naturalization.
If a non-citizen pleads guilty to a criminal offense without effective legal counsel pursuant to the Padilla mandates, the non-citizen may be able to withdraw his guilty plea in state or federal court and stand trial on the original charges. The ability to re-open the criminal case after a Padilla violation will vary by case and jurisdiction. The key for lawyers and clients is to get it right before entering any guilty plea. Many non-citizens are unaware of the immigration consequences of a DWI offense (or other crime) and would be well-served by obtaining effective assistance of counsel before making life-altering decisions.
Non-citizens who have no legal immigration status are deemed "illegal aliens" under U.S. law. Illegal aliens include people who entered the country illegally or who over-stayed a visa and no longer have legal status. Illegal aliens should be very concerned about possible removal from the U.S. after any arrest for DWI (or other offense).
The primary risk of removal occurs when the illegal alien is in jail because agents of the U.S. Immigration and Customs Enforcement (ICE) monitor jail rosters and interview certain inmates regarding their immigration status. ICE is an investigatory agency of the Department of Homeland Security. If an inmate is determined to bean illegal alien, ICE places a hold on the inmate called an "ICE Detainer" (Form I-247). An ICE Detainer requires the local jail to notify ICE when the inmate is scheduled to be released from confinement, and the jail must hold the inmate for up to 48 additional hours, which allows ICE agents to pick up the inmate and place him in federal custody. The 48-hour hold does not include weekends or holidays. If ICE agents fail to pick up the inmate within 48 hours, the jail will release the inmate as if he were a citizen.
Some county jails in Minnesota may notify ICE if they suspect an inmate is an illegal alien, and other county jails have adopted "sanctuary" policies whereby jail deputies do not notify ICE. If the county jail has a "sanctuary" policy, the alien's immediate concern is being interviewed by an ICE agent while in custody. If the inmate is released quickly from jail on his own recognizance or by posting bail, he likely will avoid an ICE Detainer because he is no longer in custody and subject to interview by ICE agents.
If an illegal alien is charged with DWI in Minnesota and he did not receive an ICE Detainer at the time of arrest, he will want to resolve his DWI case without having to serve jail time. If he returns to jail, he again risks an ICE Detainer and removal proceedings.
If an illegal alien receives an ICE Detainer, he should consult promptly with an immigration lawyer to see if he can avoid removal. Certain individuals who challenge removal can post cash bond/bail with ICE and be released from federal custody with conditional monitoring while their immigration cases are pending. Also, some individuals can obtain work authorization while their immigration cases are pending. The likelihood of successfully challenging removal involves a complex legal and factual analysis, requiring the expertise of a knowledgeable immigration lawyer.
Jay E. Carey does not practice immigration law, but he does refer clients to a local immigration lawyer with extensive expertise in these matters. Most immigration lawyers charge a consultation fee of $200 or less, which may be credited toward future legal fees if the immigration lawyer is retained in the matter. It is important to select an immigration lawyer who challenges removal proceedings regularly.
Likewise, legal aliens should be concerned about any DWI arrest in Minnesota. The good news is that the typical DWI offense is not considered a "crime of moral turpitude," which can lead to presumptive removal or inadmissibility. Certain aggravated DWI cases, however, may be considered crimes of moral turpitude. A recent Iowa case is illustrative. In Hernandez-Perez v. Holder (8th Circuit Court of Appeals 2009), the legal alien was convicted of DWI and the separate offense of child endangerment (child in car at time of DWI). The court ruled that the crime of child endangerment, i.e., a conscious disregard of a substantial risk to a child, amounted to a crime of moral turpitude. Consequently, the alien's removal was upheld by the court.
Even though the typical single DWI offense is not considered a crime of moral turpitude under immigration laws, a single DWI arrest may trigger inadmissibility due to a mental disorder, i.e., chemical dependency. Thus, it is a medical issue triggering potential inadmissibility - not a criminal one. And it does not require a conviction for DWI. A single arrest for drunk driving may trigger a finding of inadmissibility due to a mental disorder.
This problem usually arises when an alien is physically present in a foreign country and applies for a visa from a U.S. consulate abroad. For anyone who has been arrested for, or convicted of, DWI within the previous five years or at least twice in a lifetime, U.S. immigration rules require the U.S. consulate to refer the applicant to an examination by a "panel physician" in the foreign country. See the Foreign Affairs Manual and this bulletin by the State Department. The panel physician determines if the applicant has a "mental disorder" based, in part, on chemical dependency. See Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders.
The U.S. consulate will defer to the findings of the panel physician. In practice, panel physicians in certain countries like Mexico and India are stricter than panel physicians in other countries. If the panel physician finds the requisite level of mental disorder, the applicant will be denied a visa due to medical inadmissibility. The period of denial maybe at least one year. An applicant can seek waiver of the denial, but that can take months and certainly is not guaranteed to work.
Any legal alien facing this issue should consult with a knowledgeable DWI lawyer and an immigration lawyer before resolving the DWI case, leaving the U.S., or filing any immigration documents.
Permanent Resident Aliens (Green Card Holders)
Permanent resident aliens,commonly called green card holders, should be concerned about any DWI offense (or other crime) that may be considered a crime of moral turpitude. Such crimes can lead to removal or inadmissibility. One or more DWI offenses may lead to a denial of naturalization as well (see below).
Even when the DWI offense is not considered a crime of moral turpitude, permanent resident aliens should be concerned about inadmissibility based on a mental disorder, i.e., chemical dependency (see Legal Aliens section above). If the permanent resident alien leaves the country for travel, he could be denied re-entry into the U.S. due to a mental disorder. If the DWI involves a controlled substance, the alien may have additional problems with inadmissibility. Further, if the alien has multiple criminal convictions for crimes not involving moral turpitude, the alien could become inadmissible if the aggregate possible stayed or imposed sentences total 5 years or more, regardless whether the individual actually served any portion of the aggregate 5-year sentences.
In sum, any permanent resident alien charged with DWI should consult with a knowledgeable DWI lawyer and an immigration lawyer before resolving the DWI case, leaving the U.S., or filing any immigration documents.
Any arrest for DWI (or other crime) can affect an alien's ability to become a naturalized U.S. citizen. Among other criteria, a permanent resident alien who applies for naturalization must establish "good moral character." Generally, the applicant must establish good moral character during a 5-year period preceding an application for naturalization. Also, an applicant usually will not be granted naturalization if he is on probation for a crime. In Minnesota, probation for gross misdemeanor DWI offenses can be as long as 6 years. Many types of criminal convictions can lead to a denial of naturalization based on lack of good moral character. A single DWI offense within the 5-year period may result in a denial of naturalization, although at least one district court has ruled that a single DWI offense does not bar naturalization. See Ragoonanan v. U.S.C.I.S. (unpublished, District of Minnesota 2007).
In addition, aliens should be mindful that U.S. immigration law broadly interprets the term "conviction." Any admission of guilt in a criminal case can be considered a "conviction" under immigration law, even though the offense is not considered a "conviction" in state court. If a defendant receives a "stay of adjudication of guilt" for example, such disposition generally is considered a conviction under immigration law but is not considered a conviction under Minnesota law. Thus, the best way to resolve a citizen's criminal case may be very different than the best way to resolve a non-citizen's case.
Permanent resident aliens charged with DWI should consult with a knowledgeable DWI lawyer and an immigration lawyer before resolving a DWI case, leaving the U.S. for travel, or applying for naturalization.
Minnesota DWI offenses pose serious immigration risks to legal and illegal aliens alike. Jay E. Carey practices DWI and criminal defense in Minnesota. He does not practice immigration law, but he is well aware of these issues. He counsels clients to consult with a highly experienced immigration lawyer regarding these matters. In many cases, a client can obtain a consultation from such an immigration lawyer for $200 or less. Ordinarily, it is well worth the money to discover how best to minimize any potential immigration consequences. Jay attends meetings with his clients and an immigration lawyer. An action plan is developed. The goal is to avoid jeopardizing a client's ability to live in the U.S. in the near and long-term.