U.S. Supreme Court Rules on DUI / Deportation Issue
November 12, 2004

Firstly, contrary to the impression the general public might have been given based on recent media coverage of a recent Supreme Court decision, a conviction for driving under the influence of alcohol has not, to this point, been automatically leading to the deportation of non-U.S. citizens. However, pursuant to an overly harsh set of laws enacted in 1996 creating expanded classifications of “deportable” offenses, many non-citizens residing across the U.S. who have been convicted of a felony DUI found themselves in removal (formerly known as deportation) proceedings and without the possibility of a defense. In the past week, however, the U.S. Supreme Court has spoken on the issue, and in essence, ruled that non-citizens with felony DUI’s might not be “deportable.” Instead, at the very least, such non-citizens will have an opportunity to present a defense in removal proceedings and allow mitigating factors, such as an long term ties to the U.S., family hardship, rehabilitation and overall character to be taken into account before any removal order is issued.

In 1996, Congress enacted measures that greatly expanded the types of convictions that were to be included in the “aggravated felony” class of convictions for purposes of immigration law and removal consequences. And because a conviction for an “aggravated felony” generally will foreclose most defense possibilities within the context of a removal proceeding, many, many non-citizens, some who have lived in the U.S. practically all their lives, have been exiled from the U.S. because of a single mistake. For example, as a result of the 1996 legislation, a non-citizen who is convicted of a “crime of violence” and receives a sentence of more than 1 year in prison, is an “aggravated felon” for immigration law purposes and generally faces certain deportation as well as mandatory detention for the duration of removal proceedings.

Josue Leocal, a Haitian national living in Florida as a U.S. lawful permanent resident for 20+ years, was one such non-citizen who was recently deemed to be an “aggravated felon” and deported from the U.S. Josue pled guilty to a felony DUI charge under Florida law, and sentenced to 2 years in prison after driving through a flashing red light, striking another car and injuring the driver and passenger of the other car. As an aggravated felon, Josue’s otherwise clean criminal record (this was his only arrest), extended family ties and rehabilitation could not be taken into account in the decision of whether he should be deported.

Although Josue, again, had already been physically deported, the U.S. Supreme Court decided to accept the case for review, since the various federal appeals courts across the U.S. had up to that point differed in their views as to whether certain DUI offenses could constitute a “crime of violence” and should ever be considered an “aggravated felony.”

In overturning lower court rulings classifying Josue’s conviction as that of a crime of violence and therefore an “aggravated felony”, the U.S. Supreme Court ruled that for a conviction to be deemed a “crime of violence” it must involve more than an act of mere negligence, as was only required for the state offense at issue before the court. Speaking for the unanimous court, Chief Justice William Rehnquist stated “drunk driving is a nationwide problem, as evidenced by the efforts of legislatures to prohibit such conduct and impose appropriate remedies… but this fact does not warrant our shoehorning it into statutory sections where it does not fit.”

What does the decision mean? Josue Leocal will likely be allowed back into the U.S. to contest the deportation charge. Although there is still a possibility he may still end up being ordered deported once again, such an order will only be entered after the Immigration Judge has had a chance to consider factors other than his single conviction.

Copyright © 2004-2008, By Law Offices of Richard Hanus, Chicago, Illinois