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Immigration Consequences of a New Jersey DUI/DWI

I am going to be presenting at the New Jersey State Bar Association’s DWI Institute, for more info see here.  It is a full day of seminars on just DWI by some of the best-known attorneys in New Jersey.  My seminar will focus on the immigration consequences of a DUI conviction.  Since the CLE is limited to attorneys, I thought I would share with you some of what I will be discussing in this video and seminar series.

Why is a DUI conviction a problem for immigration?

A New Jersey DUI/DWI conviction can lead to immigration consequences in two general areas.

  1. If it causes you to be removable/deportable.  Meaning you are in the U.S. and because of a New Jersey DUI/DWI you are removed from the U.S.; or
  2. You want to apply for legal status in the U.S. and a New Jersey DUI/DWI conviction causes you to be inadmissible.

Under U.S. Immigration laws, a non-U.S. citizen can be removed from the U.S. or be denied admission into the U.S. for a variety of reasons.  Three major ones are

  1. Aggravated felonies (generally felony conviction that can result in over a year in jail)
  2. Crimes of Moral Turpitude;  or
  3. Controlled Dangerous Substance offenses.

A DUI conviction is problematic because under U.S. immigration laws a DUI can be considered a type of Aggravated Felony known as a Crime of Violence or a Crime of Moral Turpitude.

Aggravated Felony – Crime of Violence

An aggravated felony, of which a Crime of Violence, is a general category, has devastating consequences because it can lead to immediate detention, removal from the U.S., can prevent relief from removal, and creates a 20 year bar to coming back to the U.S.  Aggravated Felonies are delineated at Immigration and Naturalization Act 101(a)(43), which doesn’t specifically include a DUI.  However, under some circumstances a DUI can be considered a “Crime of Violence,” which is defined at 18 USC 16 as:

  1. The use (attempted/threatened use) of physical force against a person or property of another; or
  2. Any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Crime of Moral Turpitude

The Immigration and Naturalization Act doesn’t define what is a Crime of Moral Turpitude (CIMT), but courts have explained it as conduct that shocks the conscious.  In other words, conduct that is inherently base, vile, or depraved, and not acceptable for persons living in a society.  A key factor is whether the crime involves a mental state or intent.

A Simple DUI is neither a Crime of Violence nor a CIMT

No DUI’s are simple, but in this context it means there are no aggravating factors, such as car accident with significant injuries, drug possession, or multiple prior DUI’s.  At its basic level, the State has to prove in a “simple” DUI that:

  1. You drove a vehicle; and
  2. You were under the influence of drugs or alcohol while doing so.

The prosecutor doesn’t have to prove you intended to drive under the influence, only that you did so.  Without some intent a DUI isn’t a CIMT.  Similarly, since DUI’s are not on the list of aggravated felonies and since most DUI’s do not result in a jail for at least one year (federal system’s felony) and there isn’t a “substantial risk that physical force against the person or property of another may be used in the course of committing the offense,” a “simple” DUI isn’t a Crime of Violence.

That isn’t to say that a DUI doesn’t have any immigration consequences.  Stay tuned for our subsequent articles that discuss specific circumstances . . .

So What Do I Do?

If you live out of New Jersey and received a ticket/DUI in Monmouth or Ocean Counties, you can

  1. Download our free traffic ticket book  “Why Pleading Guilty to your New Jersey Traffic Ticket is NOT an option by clicking on the title,”
  2. Download our DUI book, “Arrested for Drunk Driving?  Learn How to Beat the Odds,”
  3. On the menu on the right you will find our immigration books including a tool to help you figure out if you qualify for legal status,
  4. You contact me through this site or the chat feature; or
  5. You can call our knowledgeable staff at 888-695-6169.

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