Question: I am in the U.S. on an H1B visa. Last Friday, some of my friends went out to a bar. It was a nice evening and with dinner, we had a couple of drinks. On our way back, we were stopped by a traffic cop for failing to stop at a stop sign. He made my friend, who was driving, get out of the car and told us that he was going to do a breath analyzer, which he did. It came back with a .08 reading, and he cited my friend for drunk driving. Someone told my friend that he could be deported because, since he now has a DUI, he now has a criminal record. Is this true? Is he going to get deported? What do we do? Is there anything we can do to prevent his deportation?
Answer: It depends. Yes, there is a very legitimate concern about deportation. However, I do not think the situation may be as dire as you fear.
Under current laws, a non-immigrant individual committing an “aggravated felony” may be deported. There is a long list of crimes that are considered aggravated felonies. The only one that concerns us here is the “crime of violence.” A “crime of violence” is a crime where force is used or where there is a risk that physical force may be used while the crime is being committed.
For example, if a person points a loaded gun at you to rob you, he just committed a crime of violence. Robbery is a felony and his pointing a gun involves a risk that, while he is committing the crime of robbing you, you may be injured by the physical force of the bullet hitting you. Thus, it is a crime of violence and can lead to deportation.
Whether DUI is considered a “crime of violence” depends on the state in which your friend was cited. A lot of states list DUI as a felony where force is or may be used, some states do not. If it was a state which does not list DUI as a felony, then he is lucky and he only needs to deal with the traffic violation.
On the other hand, if he was in Texas, for instance, he stands the risk of being deported. In a recent case in Texas, drunk driving was defined as “operating a motor vehicle while intoxicated.” In this case, the judge decided that even though no force was used, the mere fact of driving while drunk created a risk that physical force (of a car hitting someone) existed. INS proceeded to deport the individual.
What this means for non-immigrant persons is – if they are on the road speeding, or get pulled over for a minor traffic offense and they’ve had one drink too many, even if no one is hurt, even if it is only a minor traffic violation – if they are cited for drunk driving, they stand the risk of being deported.
For your friend, I would recommend that he contact an attorney in his own state as soon as possible to seek legal advice. Even though he may not be facing deportation, he may have ramifications when applying for a green card, and later, for citizenship. Good legal counsel at this point may save him a lot of trouble later on.