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

Video Blog: Traffic Court

December 11, 2012.  Today, I was in traffic court.  Traffic charges can have significant consequences for immigrants.

If you hire a lawyer to help you with your traffic case, please remember, get to court early.  Your attorney will need to know that you are present, and to seek out the prosecutor before court. 

Also remember, courts have security.  You need to budget time to pass through the metal detectors.  In many courts, cell phones are prohibited.  In Fairfax, camera phones are banned.  You can leave your camera phone with the security.  But, in other courts, such as Arlington, Loudoun and Prince William, you cannot bring any phone into the courthouse.  Be prepared to store your phone  in these courts.

Taking these steps will help your lawyer provide the best service to you.

If you need help with a traffic case, call me at (703) 837-8832.

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

Happy Thanksgiving!

Happy Thanksgiving! Enjoy your time with you family.  But please, be responsible.  Don't drink and drive.

If you find yourself with traffic problems, give me a call at (703) 837-8832.

info@kovatchimmigrationlaw.com

Deferred Action for Childhood Arrivals (DREAMers): Potential Applicants with Criminal Records Must Give Careful Consideration

Those who wish to apply for deferred action for childhood arrivals who have criminal records must consider the matter carefully before applying.  On one hand, USCIS is saying that some criminal convictions will not disqualify a person from receiving deferred action.  However, certain criminal convictions will not only make a person ineligible for deferred action for childhood arrivals, they may cause an applicant to be referred to U.S. Immigration and Customs Enforcement for removal proceedings.

USCIS has the authority to issue a Notice to Appear, which begins a removal proceeding.  USCIS can also refer a case to ICE for a decision on whether to begin removal proceedings.  At times, when an alien files an application or petition, such as an application for naturalization, USCIS will learn of the applicant's criminal record.  In such cases, the alien risks having his or her case referred to ICE for a decision on whether to begin removal proceedings.

USCIS issued guidance in November of 2011 on when it would refer a case to ICE for possible removal proceedings.  The guidance can be found at this link.  In general, if a crime qualifies as an "aggravated felony" under U.S. immigration law, concerns street gangs, or involves violating another person's human rights, then USCIS will refer the matter to ICE.

Turning back to eligibility for deferred action, USCIS guidelines say that an applicant must not have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors.

USCIS provides further explanation on its Frequently Asked Questions page.  First, USCIS states that expunged convictions and juvenile convictions will not automatically disqualify a person for consideration for deferred action.  Rather, an applicant with such convictions will have his or her case assessed on a case-by-case basis.  The point here is that if there is a conviction for a felony or a significant misdemeanor which was either a juvenile conviction, or was later expunged, the applicant should be prepared to address the particular facts and circumstance on his or her case to show that USCIS should still exercise its discretion.  This can include the facts and circumstances surrounding the conviction itself, as well as any hardships that another person would face if deferred action were not granted.  An example could be a U.S. citizen child of the applicant, who has a significant health concern.

USCIS warns further that if the applicant was juvenile at the time of conviction, but was tried as an adult, then the conviction will be treated as an adult conviction.

A felony is defined as a crime punishable by imprisonment for a term exceeding one year.  Notice that USCIS uses the word "punishable" and not "punished."  This would tend to show that even if a person was actually punished for less than a year, if the possible sentence for the crime exceeded one year, then USCIS would consider the offense a felony.

As for significant misdemeanors, some categories are clear.  Domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking and driving under the influence are all considered significant misdemeanors, not matter what sentence was actually imposed.

For other misdemeanors, they will be considered significant if they were punished by imprisonment for more than 90 days.  When considering the term of imprisonment in this instance, USCIS states that it will not consider any time that was suspended.  This is a departure from other areas of immigration law, where a term of imprisonment includes the entire sentence, even if part of the sentence was suspended.

USCIS states that traffic infractions will not be considered misdemeanors.  However, it warns that if there is a pattern of such infractions an alien's entire offense record will be examined to determine whether the exercise of discretion is warranted.  In making this assertion, USCIS makes reference to driving under the influence.  This appears to give a clue that if there is a history of traffic infractions, which may not themselves rise to the level of driving under the influence, but which shows that alcohol was involved, USCIS may consider such cases as evidence of alcoholism, and thus deny deferred action on that basis.

Whether or not a misdemeanor is considered significant, if an applicant has been convicted of three or more, then he or she will not be considered for deferred action.  On this point, USCIS indicates that if there are multiple misdemeanor convictions occurring on the same date and arising out of the same act, omission, or scheme of misconduct, then they may not necessarily be considered more than one conviction.

Finally, some states have criminalized certain immigration-related offenses.  Illegal presence alone, for example, is not a federal crime.  But some states have moved to make it a state crime.  Some states and localities have also attempted to criminalize employing or leasing to a person known to lack a legal immigration status.  USCIS provides that convictions for felonies or misdemeanors of immigration-related crimes will not disqualify a person for deferred action.

A person who wants to apply for deferred action, but who has a criminal conviction should consult with a lawyer, and give careful consideration before making such an application.

By:  William J. Kovatch, Jr.
(703) 837-8832