DACA:
If you have Deferred Action for Childhood Arrivals (“DACA”) or want to apply for DACA, you need to know that under immigration law, DWI convictions are considered “significant misdemeanors,” and they generally disqualify applicants from obtaining or renewing their DACA employment authorization.
“Significant misdemeanor” is an immigration law term unrelated to the designation of the criminal offense under Minnesota criminal law.
However, there have been very limited circumstances in which applicants with DWI convictions have been able to obtain DACA despite their DWI convictions.
DAPA:
The criminal conviction guidelines for the new Deferred Action for Parental Accountability (“DAPA”) have not been announced yet but will likely be similar to the DACA guidelines.
If you believe you may otherwise be eligible for DAPA but have a DWI conviction, you should consult with an immigration attorney before submitting your application.
If you don’t have valid status
If you’re in the United States without any status or on an overstayed visa, a DWI will likely place you on ICE’s radar since ICE regularly runs checks on the local jails for foreign nationals.
If you’re found during one of those checks, they may place an ICE hold on you. Then you will be transferred directly to ICE custody once you are out of criminal custody.
If you end up in ICE custody, you may be eligible for a bond, depending on your other criminal history.
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.
Considerations
Some specific facts to consider if you apply for a valid status after a DWI conviction:
Good Moral Character:
If you are interested in applying for U.S. citizenship, you must prove yourself to be a person of “good moral character” for five years prior to filing. This means you cannot be on probation when you file. Also, 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 have a DWI conviction with an aggravating factor (like a child in the car) or if you get a DWI on a suspended license, those may be “crimes involving moral turpitude” that can cause issues when you apply for citizenship.
Good Physical Condition:
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 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 two years or two or more in your life, 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 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 attorney in St. Paul, Minnesota. 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
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