DWI and Your U.S. Visa

If you're facing a DWI charge, you undoubtedly have questions about the process, the possible consequences, and how to get your driver's license back. But if you're an immigrant to the U.S., you're probably also wondering how this can affect your visa and your immigration status.

A first DWI in Texas is typically a Class B misdemeanor. If there are aggravating factors like a blood alcohol concentration above .15%, a first DWI may be a Class A misdemeanor. While misdemeanors typically won't affect your immigration status, they can have a long-term effect on your status under DACA or your ability to become a naturalized citizen.

Under the Immigration and Naturalization Act, felony convictions are typically crimes of “moral turpitude,” which can affect your immigration status. If your DWI involves additional charges related to an accident that seriously injured or killed someone, or if you had a child under 15 in the car, the police may charge you with a felony. If you're an immigrant facing misdemeanor or felony charges related to a DWI in Houston, you need skilled legal advice right away.

DWI and Immigration Status

There are three possible consequences of a crime on your immigration status: deportation, denial of admissibility into the U.S., and denial of citizenship. Under the Immigration and Naturalization Act, the determining factor is whether the crime involves “moral turpitude.” These are typically crimes that involve criminal intent, are inherently depraved, or are contrary to the rules of morality and the duties owed to other people.

A DWI does not generally involve criminal intent or depravity. As a result, in many cases, a single DWI may not affect your immigration status, and it won't lead to deportation or revocation of your green card. However, aggravating factors, in combination with a DWI or multiple DWIs, could have these consequences. A single DWI may also affect your status under DACA.

Deportation after DWI

Under the Immigration and Naturalization Act, immigration officials may remove or deport non-citizens if convicted of a crime of moral turpitude or certain other crimes. Under section 1227 of the INA, these “deportable” crimes include:

Drug or controlled substance offenses,
Alien smuggling,
Document fraud,
Domestic violence,
Firearms trafficking,
Money laundering,
Fraud,
Espionage,
Sabotage,
Terrorism,
Rape,
Murder,
Other aggravated felonies, and
Crimes of moral turpitude.

Crimes of moral turpitude can get you deported if a court convicts you of a crime with a possible punishment of one year or more within five or ten years of your entry into the U.S. Or if a court convicts you of two or more crimes of moral turpitude. The statute states:

(i) Crimes of moral turpitude

Any alien who-

(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and

(II) is convicted of a crime for which a sentence of one year or longer may be imposed,

is deportable.

(ii) Multiple criminal convictions

Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.

8 U.S.C. §1227(2)(A)(i),(ii) (2008).

As we mentioned above, U.S. immigration law doesn't typically classify a DWI as a deportable crime, a crime of moral turpitude, or as a reason to deny or revoke an immigrant's green card. However, a DWI often comes with additional charges or aggravating factors that could affect your immigration status.

Drug DWI:

Drug offenses are considered deportable. If you are stopped and arrested with drugs in the car, you will probably face additional charges separate from the DWI. A conviction could render you deportable.

DWI with a Child in the Car

In Texas, driving while intoxicated with someone under the age of 15 in the car is a state jail felony. Under the Immigration and Naturalization Act, it is considered far more serious than a simple DWI.

Intoxication Assault:

Intoxication assault happens when someone driving while intoxicated causes an accident that causes a serious bodily injury. Serious bodily injury, according to Texas Penal Code 49.07(1)(b), is an injury that “creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.”

Intoxication Manslaughter:

Intoxication manslaughter happens when someone driving while intoxicated causes an accident that results in someone's death, whether by accident or mistake. It is a second-degree felony in Texas.

You could also face deportation for a DWI conviction along with something as simple as driving on a suspended license. Moreover, multiple DWI convictions could also render you deportable.

A felony DWI is not on the Immigration and Naturalization Act's list of aggravated felonies that could lead to your deportation. But immigration officials can use subjective judgment to determine whether or not a felony DWI, or even a misdemeanor with aggravating circumstances, can render you deportable. Moreover, Texas law doesn't usually classify a DWI as a felony unless the DWI happens with aggravated circumstances like those mentioned above or you have multiple DWI convictions.

Denial of Admissibility into the U.S.

A DWI can also affect your admissibility to the U.S., not just whether you might face deportation. In this case, “inadmissible” doesn't just mean unable to cross a border into the United States legally. When you seek to change your immigration status or your permanent resident status while already in the U.S., you are subject to determining whether you are “admissible” under the Immigration and Naturalization Act. Admissibility can also apply if you are a legal resident of the U.S., travel outside the country, and try to reenter the U.S.

When you are applying to enter the U.S., section 212 of the INA defines whether you are admissible as a lawful permanent resident or whether you can obtain a green card. The law contains several categories of inadmissibility for reasons such as poor health and security because they're likely to become a public charge or criminal grounds. Crimes that can render an immigrant inadmissible to the U.S. include:

Crimes of moral turpitude,
Controlled substance violations of, or conspiracy to violate, U.S. law or the laws of the immigrant's home country,
Multiple criminal convictions,
Controlled substance trafficking,
Prostitution and commercialized vice,
Aliens involved in serious criminal activity who asserted immunity from prosecution,
Foreign government officials who have committed serious violations of religious freedom,
Human traffickers, and
Money laundering.

The sections of the INA at issue for someone convicted of a DWI include crimes of moral turpitude, those involving drug violations, and multiple criminal convictions:

Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or

(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21), is inadmissible.

8 U.S.C. § 1182(2)(A)(i) (2008). There are exceptions for minors under 18 if:

They committed the crime more than five years before applying to enter the U.S. or for a visa,
The court didn't sentence the minor to more than six months in prison, and
The maximum possible penalty for the crime wasn't more than one year in prison.

The statute states:

Clause (i)(I) shall not apply to an alien who committed only one crime if-

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

8 U.S.C. § 1182(2)(A)(ii) (2008). If you have more than one conviction, the law may also render you inadmissible to the U.S.

(B) Multiple criminal convictions

Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more is inadmissible.

8 U.S.C. § 1182(2)(B) (2008).

If you have a DWI conviction, the issue becomes whether it is a crime of moral turpitude under the INA. As we discussed earlier, a DWI typically isn't considered a crime of moral turpitude absent aggravating circumstances like an accident causing serious injuries or death, a drug violation, driving on a suspended license, or driving with a child under 15 in the car.

Waiver of Inadmissibility

If immigration officials determine that you are inadmissible to the U.S. because of a crime, you can apply for a waiver. Under section 212 of the INA, waivers are available for people who:

Committed crimes of moral turpitude,
Have controlled substance violation if it involved possession of 30 grams of marijuana or less,
Have multiple convictions for certain crimes,
Engaged in prostitution, and
Those who sought immunity from prosecution.

Immigration officials may grant a waiver if:

The crime happened more than 15 years before the application for admission, or if for a prostitution offense the guilty party is rehabilitated, and a waiver wouldn't violate national security concerns,
The individual is the spouse, parent, son, or daughter of a U.S. citizen or permanent resident, and denying admission would cause extreme hardship to the citizen or permanent resident, or
The individual seeks permanent residence after being battered by a U.S. citizen or permanent resident spouse or parent.

However, whether to grant a waiver is left almost entirely up to the discretion of immigration officials. You cannot appeal the decision.

Denial of Citizenship

A DWI can count against you in some immigration applications such as DACA or the naturalization process.

Naturalization and Citizenship

As part of the naturalization process, an applicant for U.S. citizenship must show that they have been and continue to be of “good moral character.” Under the Immigration and Naturalization Act, some crimes constitute a conditional bar to establishing good moral character, including those involving:

Moral turpitude,
An aggregate sentence of five years or more,
A controlled substance violation,
Incarceration for 180 days,
False testimony under oath,
Prostitution offenses,
Smuggling of a person,
Polygamy,
Gambling offenses,
Habitual drunkard,
Failure to support dependents,
Adultery,
Unlawful acts, and
Two or more convictions for driving under the influence.

Evidence of two or more DWI convictions during the statutory period establishes a rebuttable presumption that the applicant is not of good moral character. If you have two or more DWI convictions, you can overcome this presumption if you can provide “substantial relevant and credible contrary evidence” that you “had good moral character even during the period within which [you] committed the DUI offenses,” and that the “convictions were an aberration.” Matter of Castillo-Perez, 27 I&N Dec. 664, 671 (A.G. 2019).

However, even a conviction that isn't on the “no good moral character” list can affect your application. In other words, even one DWI conviction might prevent you from establishing the “good moral character” necessary to become a U.S. citizen.

DACA

In 2012, President Obama implemented a new policy for undocumented immigrants brought to the U.S. as children. Rather than deport these undocumented immigrants, the “Deferred Action for Childhood Arrivals” policy (DACA) created a deferred status, allowing DACA registrants to attend school, get a driver's license, seek employment, and work towards citizenship.

Immigrants registered under DACA must reregister each year and meet certain requirements. A criminal conviction for a serious crime like a state felony or a federal crime will almost always result in revocation of DACA status. But the consequences of a misdemeanor conviction, including a DWI, aren't so clear. Only those convicted of “significant misdemeanors” won't be able to renew their DACA status, but federal guidelines defining a “significant misdemeanor” are quite broad.

“A significant misdemeanor is a misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and:

Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,
If not, an offense listed above is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.”

Under these guidelines, a “significant misdemeanor” includes any crime with a penalty between five days and one year in jail. The guidelines also list six types of offenses that are always significant, which includes DWI. These guidelines make a DWI significant even if your conviction results in no jail time. The government also has broad discretion to determine what constitutes a conviction. Thus, the government could consider some plea bargains and deferred adjudication programs to be “convictions” even if the court enters no judgment. Immigration officials can consider your admission of guilt to be enough to disqualify you from DACA status under these circumstances.

As you can see, a DWI conviction can affect your path to citizenship, whether through naturalization or DACA. These repercussions are why you must hire a skilled DWI defense attorney who also understands how your DWI arrest can affect your immigration status.

In some states, you may ask a court to vacate or erase your conviction if the court failed to inform you that the U.S. could deport you or the conviction could render you inadmissible. However, in Texas, there is no specific statute that permits this. After consultation with a skilled defense attorney, there may be other options to attack a past conviction. But your best bet is to mount an aggressive defense against any DWI charge before a court convicts you.

You Need an Aggressive DWI Defense

It's important to remember that even if the police arrest you for a DWI, that does not mean a court will convict you of a DWI. There are defenses to a DWI, including:

Contesting the constitutionality of the stop that led to your arrest: Was there reasonable suspicion that you committed a traffic offense?
Contesting the constitutionality of any roadside tests: Did the police administer sobriety tests correctly? Were there mitigating factors at play involving your health, disability, or other issues? Are there videos of the encounter that contradict the police officer's description of your demeanor, behavior, and performance?
Contesting the constitutionality of your arrest: Did the police have probable cause to arrest you? Did the police properly administer your Miranda rights?
Contesting the administration of Blood Alcohol Concentration tests: Did the police or lab techs administer the test correctly? Did the police properly calibrated and maintain the equipment? Did the police maintain the chain of evidence to ensure nothing compromised your blood sample? Do you have mitigating health or other factors that affected the results of the test?

An arrest alone won't trigger the cancellation of your visa or change your immigration status. However, you need skilled legal representation to quickly discuss your options and ensure the best possible outcome for your DWI case and your immigration status. You need experienced and aggressive representation to guide you through this process.

Hire a Skilled Houston Board Certified DWI Attorney

Attorney Doug Murphy is one of only two attorneys in Texas holding both a DWI Board Certification from the Texas Board of Legal Specialization and a Criminal Law Certification from the National College for DUI Defense, accredited by the American Bar Association and the Texas Board of Legal Specialization. When you hire a Board Certified DWI and Criminal Law expert, you know that you're hiring an attorney with the specialized knowledge and training to handle complex DWI cases.

Doug has extensive experience defending clients in a wide variety of criminal cases, including:

Driving while intoxicated,
Intoxication assault,
Intoxication manslaughter,
Drug possession,
DWI with a child passenger under 15,
Boating while intoxicated,
Domestic violence,
White-collar crimes,
Complex crimes involving multiple charges, and
DWI charges with aggravating circumstances.

Doug can also help with DWI charges that may affect your immigration status. He brings more than 20 years of experience in the courtroom to every case he takes on.

Thompson Reuters in Texas Monthly named Doug a Texas Super Lawyer in 2009 and every year from 2013 to 2020, and Thomson Reuters has named Doug a Texas Rising Star and a Texas Super Lawyer over a dozen times. The Harris County Criminal Lawyers Association also awarded him the Sharon Levine Unsung Hero Award for his work with others in exposing the flaws in the Houston Police Department's Breath Alcohol Testing vans, leading to their decommissioning.

Doug has the courtroom skills and scientific knowledge to understand breath and blood tests, as well as the insight to win. But Doug also understands what a difficult time this is and the scary choices you may face. Let him guide you through this time of crisis and advocate on your behalf. Give him a call at 713-229-8333 or contact him online.