The Immigration Impact of DUII Diversion
by: Sengelsman • May 25, 2012 • no comments
So your client is charged with a DUII and wants to enter Diversion. She's not a US citizen and you'd like to know what - if any - immigration consequences a Diversion entry will have. Here's an answer. Keep in mind, however, that this answer is tailored specifically to a greencard holder (aka Legal Permanent Resident) with no prior convictions entering Diversion. Any immigration response can and often does change depending on your client's status (undocumented, LPR, visa holder) and based on that client's prior criminal history or other pending charges. It is always best to contact MPD's Padilla Project rather than relying on a boilerplate answer. We provide advice tailored to your client's specific situation free of charge.
The answer, as well as some strategic advice:
The language in Padilla suggests a state consider immigration consequences (just as it considers mental health issues or drug / alcohol concerns) when making a plea offer. With this in mind, you can hopefully work something out for this client that will limit his immigration exposure. In my experience, the prosecutor may tell you "I cannot treat this defendant differently than others without immigration consequences." This is inaccurate. Padilla allows the prosecutor to do just that given the immense collateral consequences attached to immigration proceedings. Have a copy of Padilla with you if you negotiate (130 S. Ct. 1473 (2010)).
Your client, as a lawful permanent resident, should have as her highest goal avoiding deportability for an aggravated felony; then avoiding deportability for any other reason; and only then avoiding inadmissibility. Noncitizens who have lawful status need to focus on not having that privilege taken away through removal grounds. The primary removal grounds that could apply to a criminal conviction are: Aggravated Felonies, Crimes Involving Moral Turpitude (CIMTs), Domestic Violence Offenses, Controlled Substance Offenses, and Firearm or Destructive Device Offenses.
The 9th Circuit and BIA have reaffirmed the long-established rule that a simple DUII is not a crime involving moral turpitude (in the event that your client is revoked from Diversion).
While the goal of a DUII Diversion is a dismissal of the state case at the end, realize that the entry of a plea coupled with some restraint on your client's liberty will be viewed as a conviction in immigration court. As such, entering the DUII Diversion program will put a conviction for DUII on your client's immigration file.
It is true that an Oregon simple DUII offense should generally not cause deportability or inadmissibility (as a crime - although a history of DUII can evidence a "mental disorder" triggering inadmissibility). See Matter of Lopez-Meza, 22 I. & N. Dec. 1188, 1194 (BIA 1999) (simple DUII does not constitute a CIMT because it is ordinarily a regulatory offense that involves no culpable mental state, but an Arizona conviction for DUII on a suspended license is a CIMT); Leocal v. Ashcroft, 543 U.S. 1, 11 (2004) (aggravated DUII is not an aggravated felony crime of violence because the offense may be committed through negligence).
In the event that your client had a suspended license, you will want to either get the DWS dismissed as part of her plea or keep the pleas separate (i.e. different case numbers and neither mentions the other). While the Board of Immigration Appeals has currently only ruled that a DUII on a license suspended for DUII is a CIMT, there is room for the BIA to decide that driving on a license suspended any reason is a CIMT because it shows the defendant's willingness to ignore a court's order. If there is mention in the police report that your client's license is suspended for any reason already, or if there is another citation for driving while suspended or revoked, you will want to get that citation dismissed and make no mention of it on the record of conviction (which includes the plea petition, your plea colloquy, and any statements made by your client). Additionally, you will want to plead your client guilty to the straight language of the DUII statute to avoid (1) the prosecutor putting a recitation of the facts on the record and (2) the immigration court being able to open the record of conviction. You want to make no mention (i.e. do not stipulate to it as a piece of evidence) of any lab results or the police report. If there was any injury of anyone, you want to avoid mention of that on the record, too.
A simple DUII MAY constitute a controlled substances offense (triggering both inadmissibility and deportability - very big deal) if the record of conviction shows the offense involved a controlled substance rather than alcohol. In the event that your client's DUII is a controlled substance DUII, you will want to sanitize the record by pleading her guilty to the strict language of DUII and avoiding any mention of a controlled substance. If this is not possible from the way your case has been charged, then discuss changing the charge to one that will cause her little to no immigration problems. A controlled substance offense will result in deportation (problematic if she has a greencard!) and also inadmissibility. You want to avoid it at all costs. The language in Padilla suggests a state consider immigration consequences (just as it considers mental health issues or drug / alcohol concerns) when making a plea offer. In my experience, the prosecutor may tell you "I cannot treat this defendant differently than others without immigration consequences." This is inaccurate, however. Padilla allows the prosecutor to do just that given the immense collateral consequences attached to immigration proceedings. Have a copy of Padilla with you when you negotiate if this is a controlled substance DUII.
A simple DUII will be neither a crime of violence nor an aggravated felony.
Important to remind your client: if her license is suspended as a result of the high blow and/or the conviction for reckless endangerment, she must not drive. As mentioned above, that could be very detrimental to her status if she is caught and convicted of DWS.
Your client should be made aware that failure to carry her greencard at all times is a federal offense. She should obviously avoid any potential future crimes.
I hope this was helpful. Please do not hesitate to contact me with further questions or future requests.
Yours,
Stephanie Engelsman Metropolitan Public Defender 503-225-9100
