There are many repercussions to being charged with an OUI. For non-citizens, your Massachusetts criminal charge can impact your immigration status at the federal level. This could potentially lead to deportation or a denial of status adjustment. Various pleas and findings have serious consequences for your future in the United States, and so it is critical to work with an attorney or an attorney network knowledgeable in both immigration and criminal law.
Immigration and Federal Law
Immigration status exists on a spectrum, but is generally and broadly in two pools: Those who intend to leave the United States (non-immigrants) and those who will seek to stay in the United States (immigrants). The first category, for instance, includes those in the country with work or student visas. The second immigration category includes lawful permanent residents and their family members in the country on a visa, who would like to adjust their status to lawful permanent residents.
Since an immigrant facing an OUI charge is subject to state and federal laws, it is important to understand that at the federal level, the definition of conviction is broad. Under the Immigration and National Security Act (INA), a conviction exists if there is a guilty verdict, a guilty plea, nolo contendere, or an admission to the offense, and the court has ordered punishment, penalty or issued some restraint on liberty. 8 U.S.C.A. 1101(48)(A). There are times where a state may not consider a disposition a conviction, but the federal government will still treat it as a conviction because the federal definition is so broad.
Operating Under the Influence and State Law
OUI is a criminal offense in all states. In Massachusetts, OUI is often charged as a misdemeanor, but can be charged as a felony when it is the third or higher offense, if there was serious injury or death or if the operator fled the scene of an accident.
If a person is charged with OUI, there are a number of possible outcomes at court, including: the charges can be dismissed, the matter can be continued without a finding (CWOF), or the operator can be found guilty. In the event of a CWOF, the defendant has admitted to wrongdoing, but the court does not enter a conviction. So long as the defendant complies with probationary conditions, the case will be dismissed. While a CWOF can be beneficial to many individuals, for immigration purposes, a CWOF may be considered a conviction. The broad definition of a conviction under federal immigration law can encompass a CWOF. Because a conviction could potentially impact the legal status of a non-citizen, it is critical to discuss the case with an attorney.
OUI Offenses and Immigration Status
If you are seeking to remain in the country and obtain citizenship, certain crimes can make you ineligible to adjust your status or become naturalized. Certain crimes may also impact your ability to re-enter upon leaving the country. These crimes are termed crimes of “moral turpitude”, and speak to the requirement that those seeking citizenship be of good moral character. Section 212(a)(2)(A) of the Immigration and National Security Act (INA). This can include multiple OUI offenses and aggravated OUI offense, which at the federal level is an OUI resulting in severe injury or death. This can also include possession of marijuana over 30 grams.
Crimes that mandate deportation include crimes of moral turpitude committed within five years of entry or adjustment, two or more crimes of moral turpitude and aggravated felonies. 8 U.S.C. § 1227(a)(2)(A)(i) (2006). Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011) defines what constitutes an event of entry or adjustment for purposes of this section. These are all crimes that include certain Massachusetts charges of OUI.
An aggravated felony will generally not include a DUI that results in bodily harm, for the analysis under Leocal v. Ashcroft requires the intentional use of force. 543 U.S. 1, 125 S. Ct. 377 (2004). Even when bodily harm results from an incidence of driving under the influence, the Supreme Court has held that for the crime to be a crime of violence (as would render one deportable under 18 U.S.C.S. §16), there must be an intent to cause harm.
Your Lawful Presence Is At Stake
Being charged with an OUI is stressful under any circumstance. When someone in the United States on a visa is charged, the complexities of the case increase. This is why you need to call in an attorney who knows how state and federal laws interplay and how they apply to the specifics of your case. With your future at risk, trust it in the hands of the Law Offices of Joseph D. Bernard.