Your DWI and Your Immigration Status

The Barry S. Edwards Law Office brings you a guest blogger, Kara Lynum, criminal defense and immigration attorney.

If you get stopped for a DWI and you’re not a U.S. citizen, you need to know how your immigration status could be affected.

For some foreign nationals, a misdemeanor DWI may delay your ability to naturalize and become a U.S. citizen.  For others, it may place you in immigration custody.  If you are a foreign national, it is important to know the consequences of a DWI on your record as you navigate your way through the U.S. immigration system.

A DWI may impede your ability to consular process for a green card, delay your naturalization, or put you on ICE‘s radar.

IF YOU HAVE VALID STATUS:

If you’re in the United States with status –either a green card or a valid visa — you would likely not be placed into ICE custody and would not be placed into immigration court proceedings.  A DWI on its own does not make you deportable so you would retain your green card or visa.

IF YOU DON’T:

If you’re in the United States without any status or on an overstayed visa, a DWI likely get the attention of ICE.  ICE regularly runs checks on the local jails for foreign nationals.  If you’re found during one of those checks, they will place an ICE hold on you, and you will be transferred directly to ICE custody once you either bond out of criminal custody or your case is resolved.  Once you arrive in ICE custody, you may be eligible for a bond, depending on your other criminal history.  After you pay the ICE bond, you will be released, and you will remain in immigration court proceedings.

Depending on your immigration history and family relationships, you may be able to stay in the United States and resolve your immigration court proceedings.  Otherwise, you may ask the immigration judge for voluntary departure and be allowed to leave the United States within a set number of days and avoid a removal order.  In a worst case scenario, you could be ordered removed by the immigration judge and be deported to your home country.

GOOD MORAL CHARACTER:

However, if you are interested in applying for U.S. citizenship, one of the requirements is that you be a person of “good moral character” for five years prior to filing.  For foreign nationals with DWI convictions, this means you cannot be on probation when you file.  To varying degrees, this is a matter of discretion – the more DWIs you have in the five year period prior to filing for citizenship, the less likely it is that the interviewing officer will find you have “good moral character.”

If you’re consular processing for your green card and have a DWI, be aware that some civil surgeons affiliated with U.S. embassies abroad are very tough on DWIs and try to find a way to find you medically inadmissible to the United States.

For example, in Ciudad Juarez, if you’ve had one DWI in the past five years or two in the past 10 years, you are asked to go through a secondary medical exam during which immigration does a thorough check for chemical dependency.  If you’re found to be chemically dependent, you will be barred from entering the United States for one year after which you may reapply for admission.

If you’ve had more than one DWI in the last 10 years, your second (and each subsequent) DWI would be enhanced to a gross misdemeanor or a felony if you have four.  This will not affect your immigration status, other than speaking to your good moral character when you apply for U.S. citizenship or if you have to consular process for your green card.

CONSULT AN IMMIGRATION ATTORNEY TO BE SURE:

If you are a foreign national and have been arrested for a DWI, be sure to obtain good criminal defense counsel, but also be sure to contact an immigration attorney to find out how this may affect your immigration status.  Each person’s immigration history is different and it’s important to know how a DWI conviction could affect your ability to remain in the United States.

Kara Lynum is an immigration law and criminal defense attorney in St. Paul, Minnesota.  She offers free consultations and evening and weekend appointments.  Please contact her at 651-300-9383 or kara@lynumlaw.com if you’d like to discuss how your DWI could affect your immigration status.  Her website is www.lynumlaw.com.