Aggravated felony convictions have very serious immigration consequences. In most circumstances, a non-U.S. citizen with an aggravated felony conviction is deported and permanently barred from re-entering the United States. This is true even if the person has lived in the United States for most of his life and has most of his family here. It is even true if the person has had a “green card’ for many years. It is very important, therefore, to know what an aggravated felony is and to avoid being convicted of one.
As the name implies, aggravated felonies are usually serious offenses. The following is an incomplete list of crimes that are considered aggravated felonies under immigration law: murder, rape sexual abuse of a minor, drug trafficking, money laundering, arson, crimes of violence for which a person is sentenced to at least one year in prison, theft for which a person is sentenced to at least one year in prison, child pornography, pimping and pandering, fraud crimes where the amount exceeds $10,000, alien smuggling.
While no one would say that driving under the influence is a good thing, I do not believe that most people would think of it as an aggravated felony. Yet, that is what the Immigration Court and the Board of Immigration Appeals has done. The Board of Immigration Appeals has agreed with an Immigration Judge who found that a man with three driving under the influence convictions was a convicted felon under the category of “crimes of violence”.
Crimes of violence is defined as (1) any offense that has, as an element, the use or attempted use of force against persons or property; or (2) any other felony that, by its nature, involves a risk that force may be used. In the case before the BIA, Matter of Puente, Mr. Puente was a lawful permanent resident. Mr. Puente was convicted in Texas of driving under the influence with two prior convictions for the same offense. The result of the prior convictions made the conviction a felony and he was sentenced to five years confinement.
The Board of Immigration Appeals looked first to see if the conviction was a felony. Once they saw that it was, they looked at the specific act itself. They decided that operating a motor vehicle in a public place while under the influence involves a substantial risk that physical force against a person or property of another may be used. On that bases, they decided that they crime, when considered a felony under Texas law, was an aggravated felony.
Could that happen in California? Yes! In California, under Vehicle Code Section 23175, a conviction of driving under the influence with three prior convictions within seven years for the same offense is a felony. The sentence for the conviction is imprisonment in the state prison or in the county jail for not less than 180 days nor more than one year. Since the conviction is a felony and the sentence could be one year, the crime could be held to be an aggravated felony under immigration law.
Is it important to realize that, if you are facing a criminal charge, the effect upon your immigration status may be more drastic than the criminal penalty. For that reason, of you have a criminal law problem, while you should of course consult an expert in criminal defense, you should also make sure that you discuss your problem – in detail – with an immigration law expert before you agree to any plea agreement. You could find yourself in immigration court facing deportation long after you thought your immigration status was settled.