Padilla and a DUI conviction can spell trouble for student visas, work permits

"In the wake of Padilla v Kentucky (559 U.S.___ (2010)), lawyers who practice criminal defense law but not immigration law, have reason to be concerned about providing ineffective assistance of counsel to clients who are non-citizens and facing a criminal conviction."

By Brendon G. Basiga

Nichols Law Firm, PLLC

A U.S. citizen, who has previously been convicted of drunk driving, will be barred from entering Canada.

But what of a foreign national who is convicted of drunk driving, while living in the states? A foreign national (a.k.a. alien) is someone who is a citizen of a different country, living in the U.S. as either a student (e.g. under an F-1 student visa), or a work permit (e.g. under a TN NAFTA Work Permit; or an H1-B1 Work Visa).

For those aliens, the consequences could be even more dire.

Under the Immigration and Nationality Act, 8 U.S.C. 1227, the statute clearly outlines who is subject to deportation:

Crimes of moral turpitude. Any alien who (I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in case of an alien provided lawful permanent resident status under secion 1255(j) of this title) after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable. 8 U.S.C. 1227(2)(A)(i)(I)-(II).

If, for whatever reason, the alien is not deported for their first conviction, a later section of the Immigration and Nationality Act states that multiple convictions at any time will subject the alien to deportation:

Multiple criminal convictions. Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable. 8 U.S.C. 1227(2)(A)(ii).

For those aliens who are applying for entry into the U.S. or are renewing their visas, an earlier section of the Immigration and Nationality Act, will prohibit a person convicted of a crime involving moral turpitude, from ever being authorized for the appropriate visas:

In general. Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of (I) a crime involving moral turpitude (other than a purely political offense), or an attempt or conspiracy to commit such a inadmissible. 8 U.S.C. 1182(a) (2)(A) (i)(I).

The common theme is the key phrase "crime involving moral turpitude." Unfortunately, there is no exhaustive list of crimes that involve "moral turpitude."

However, the U.S. Department of State has published a Foreign Affairs Manual, issued to their officers, that provides extensive guidelines on what to consider. (Cited as 9 FAM 40.21(a).

See for the full text of the manual.

The early sections of this manual defines a "crime involving moral turpitude" as one involving "fraud; larceny; and intent to harm persons or things." (9 FAM 40.21(a)N2.2 Defining "Moral Turpitude").

Drunk driving and even reckless driving are specifically outlined in the Foreign Affairs Manual as crimes that do not, in and of themselves, qualify as crimes "involving moral turpitude": Crimes committed against governmental authority, which would not constitute moral turpitude for visa-issuance purposes, are...(6) Drunk or reckless driving." (9 FAM 40.21(a) N2.3-2b).

However, the reading of this section should be very carefully scrutinized. Drunk driving, by itself, may not be considered a crime "involving moral turpitude."

But, if it is combined with another crime that is so considered, then the whole incident may be a "crime involving moral turpitude".

For example, if a person is convicted of drunk driving and making a false representation (i.e. providing false information to a police officer), that case will be considered a crime "involving moral turpitude." (See 9 FAM 40.21(a) N2.3-1).

The U.S. Department of Justice (US DOJ) has also held that multiple drunk driving convictions, may also be considered a "crime involving moral turpitude."

In the Arizona case of In re Jose Luis Lopez-Meza, the US DOJ Bureau of Immigration Appeals found that because Mr. Lopez-Meza knew that his license was previously suspended due to a prior DUI, and that he drove drunk on a suspended license anyway, that second DUI was a "crime involving moral turpitude" and he was subject to deportation.

(See www.justice. gov/eoir/vll/ intdec/vol22/3423.pdf).

Generally speaking the immigration authorities will not necessarily actively search for aliens convicted of drunk driving.

However, the problems may arise when it comes time for the alien to renew his student visa or work permit.

That person could be denied the student visa/work permit, and could then either be denied entry into the U.S., or worse, deported.

So, for any student or foreign national living in the U.S., getting convicted of a DUI could be even more serious than jail or fines - deportation could be in the picture as well.

Brendon Basiga, associate attorney, The Nichols Law Firm PLLC, can be reached ate: (517) 432-9000 or via e-Mail:

Published: Thu, Jun 10, 2010