Drunk Drivers Beware!

Currently, a conviction for driving under the influence of alcohol (DUI), or driving while intoxicated (DWI), is not an automatic ground for inadmissibility or deportation.  But, all of that could change if the Border Security, Economic Opportunity, and Immigration Modernization Act becomes law.

Section 3702 of the Act creates a new ground of inadmissibility and a new ground of deportation: Habitual Drunk Drivers.  A Habitual Drunk Driver is defined as a person who has three or more DUI or DWI convictions.

One key difference between the new ground of inadmissibility and the new ground of deportability is that in order for an alien to be deportable, at least one of the convictions must occur after the passage of the Act (click here for a discussion on the difference between inadmissibility anddeportability).  Because this provision is not in the section of the Act defining inadmissibility, that could lead to the conclusion that Congress intends for this provision to be applied retroactively for those who are present in the country illegally, or who apply for admission in the future.  That is, even though DUI and DWI convictions do not currently render an alien inadmissible, if the Act passes, then those aliens who are present in the country illegally and who currently have three or more DUI or DWI convictions could find themselves in immigration trouble.

By:  William J. Kovatch, Jr.

(703) 837-8832

info@kovatchimigrationlaw.com

Driving Without a License: More Likely to Get Jail Time, But the Feds Aren't Necessarily Biting Anymore

Driving without a license is a misdemeanor in Virginia.  It can carry up to one year in jail.  There had been a pattern, particularly in Prince William County.  A Hispanic driver would be pulled over for a minor traffic offense.  If the driver was undocumented, he couldn't get a license, so he'd be charged with driving without a license.  The plan would be to get the undocumented alien in jail, so he could be reported to ICE, and ICE could put a detainer on him to start removal proceedings.  Thus, the job of lawyers like me was to try our hardest to keep people charged with driving without a license out of jail.

Well, now there is good news and bad news on that front.  First, the bad news.  As short as a few months ago, I was able to negotiate a higher fine in lieu of jail time for people charged with their second or more driving without a license.  This was true even in Prince William County.

At least in Prince William County, that is no longer true.  When a person has a prior driving without a license charge, Prince William County Commonwealth Attorneys are now insisting on at least one day in jail.  They're not willing to consider a higher fine, even the maximum of $2,500, in lieu of jail time.

But here's the good news.  About two years ago, I had a client whose only crime on his record was a single driving without a license charge.  For whatever reason, the police officer actually took this fellow into custody pending trial.  In that situation, there was little I could do.  Since he was taken into jail, he was reported to ICE and ICE put a detainer on him to start removal proceedings.  And this was in Fairfax County.

Well, it seems like that may be a thing of the past.  I had a client who was forced to spend a night in jail after a second driving without a license.  I totally expected an ICE detainer, and the start of removal proceedings.  I was pleasantly surprised when I called the Prince William County Jail the next morning, and was told that my client was released as scheduled.  It seems that ICE may not be starting removal proceedings against undocumented aliens where the only convictions are for driving without a license.

This turn of events would seem to flow from the evolution of the Obama Administration's deportation policy.  Back in June of 2011, ICE announced that it would concentrate its enforcement resources on high priority cases, such as violent criminals and gangs.  Then, this year, the Administration announced that it would grant certain undocumented aliens deferred action, effectively allowing them to remain in the United States, and give them work authorization.  In October of 2012, in a move that angered Prince William County officials, ICE announced that it was going to discontinue a program that involved local police and federal cooperation when local police picked up a suspected immigration violator.

It seems that the Federal Government is putting its money where the President's mouth is.  Run-ins with the law for minor offenses no longer seems like a reason for ICE to start removal proceedings.  A person convicted for a second charge of driving without a license may have to face the inconvenience of a night in jail in Prince William County.  But, at least for now, it appears that if all you have are convictions for driving without a license, ICE is not interested in pushing for deportation.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com