Can you be deported for a DUI in PA?

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What are the immigration consequences for a PA DUI charge? Will you be deported for a PA DUI? Can you lose immigration status just by being charged with a PA DUI?

If you are a US citizen or a naturalized US citizen

It almost seems silly to write, but if you are a natural born US citizen or a naturalized US citizen, the United States government cannot deport you upon a conviction for a PA DUI. Believe it or not people frequently ask this question. But don’t stop reading….

deported DUI PA
Can you be deported for a PA DUI?

Section 1182 of the Immigration and Nationality Act and Pennsylvania DUI

Section 1182 of the Immigration and Nationality Act denies immigrants the ability to enter the United States when an immigrant commits the essential elements of a crime involving moral turpitude.

What is a crime of moral turpitude?

Moral turpitude is a somewhat loose concept. Immigration lawyers litigate this definition more than any other definition in immigration law. The McShane Firm does not practice immigration law. We do not warrant or otherwise offer as legal advice any aspect of our statements when it comes to immigration law. There are very good immigration law attorneys that we can refer you to if you want or need a formal consultation in immigration law. This should be considered a baby primer for someone concerned about being deported for a PA DUI.

Generally, the law defines a “crime of moral turpitude” as anything done contrary to justice, honesty, principle, or good morals. In addition, moral turpitude is an act of baseness, vileness, or depravity in the private and social duties which a person owes to his or her fellow citizens or society in general, regardless of whether it is punishable as a crime. That’s why we should always care about being deported for a PA DUI.

Does a Pennsylvania DUI have immigration consequences?

The answer depends on the circumstances surrounding the DUI charge. Here are some complications of a DUI charge when it comes to immigration.

  • It is a bar to be eligible for the Deferred Action for Childhood Arrivals (DACA) initiative.
  • Simply being charged with a DUI can cause revocation of a non-immigrant visa.
  • Being charged with a DUI combined with other factors can lead to inadmissibility or deportability, for example under the alcoholic or drug abuse grounds.

If an individual was simply pulled over and was just above the legal limit for alcohol, then the criminal charge is not of moral turpitude. However, if an individual causes an accident, kills another person, and/or if drugs are involved, then the DUI charge will be considered a crime involving moral turpitude.

Will a conviction for a Pennsylvania DUI lead to inadmissibility?

INA § 212(a) and 8 USC § 1182(a) governs admissibility for foreigners into the US. In order for a non-citizen to lawfully enter or re-enter the US, the person must be “admissible.” If someone wants to apply and gain citizenship or seek to become a lawful permanent resident (LPR), the applicant must also be “admissible.”

  • A single event, no accident, no accident, no aggravating factor 9such as drug related) DUI will not make someone automatically inadmissible.
  • However, the government or a reviewing court can deem you inadmissible for convictions for 2 or more offenses of any type, with a total sentence imposed of 5 years or more. Unlike the 10 year look back time for recidivist enhancement in DUI sentencing, this 2 or more offenses criteria is measured over a lifetime. 
  • Any person who suffers from a disorder, including alcoholism, that poses a current threat to self or others is inadmissible. If the person is applying for permanent residency, especially through consular processing, then a single DUI arrest in the last 5 years, or two or more DUI’s in the last 10 years, will result in a referral to a panel physician to determine whether the person is an alcoholic. This is true even if there was not a conviction. The US government or reviewing court should find someone inadmissible if a panel physician or civil surgeon has made two findings: “(1) that there is a diagnosis of mental disorder (alcohol abuse) and (2) that there is current harmful behavior or a history of harmful behavior related to the disorder that is likely to recur in the future, such as drunk driving or domestic violence.”
  • A person is inadmissible who is convicted of an offense relating to a federally-defined controlled substance and only those substances. The PA DUI laws relating to “drugs” (75 PS 3802(d)) never should qualify as an inadmissible controlled substance conviction. This doesn’t mean that the government won’t try. Your lawyer should argue that this section about inadmissibility is a strict categorical approach in terms of its legal analysis. The term “drug” in the PA DUI statute statute is overbroad in this context because it includes substances that are not found on the federal drug schedules. Legally, this analysis is indivisible. Interestingly, this analysis should also apply to the deportation ground based on conviction of a federally-defined controlled substance. This is where is can get tricky too. If a DHS officer asks, an applicant should never admit to that officer to possessing a federally-defined controlled substance even without there being a conviction such as dismissed charges or ARD disposition when it comes to a DUID.
     
     

Will I be a person of Good Moral Character (GMC) if I have a PA DUI on my record?

Tot gain naturalization or other legal statuses in US immigration law, a person must prove that they are a person of Good Moral Character (GMC). 

Potential Barriers against gaining GMC in the DUI context

  • A “Habitual Drunkard”. The law specifically lists this as a bar to GMC. Multiple DUI or public drunkeness or open container or other alcohol based convictions might lead to a finding that you are a habitual drunkard. See the above.
  • Convictions for 2 or more offenses of any type, with a total sentence imposed of 5 years or more as discussed above. 
  • Spending 180 days or more in a penal institution. These are actual days in jail or prison. It is not what the Court sentences you to serve, but the actual physical time locked up. The 180 days or more is the total days over that GMC conduct period. Little sentences for the DUI and any parole or probation violation count together even if you do not serve them in a row.
  • On probation or parole. Current, federal regulation prohibits naturalizing someone who is currently on probation or parole for any offense. 

The Bottom Line of PA DUI and Immigration

If you don’t the government to deport you for a PA DUI, then you must fight. You must fight every DUI. Every DUI case matters. There is no easy outcome for a DUI. All of the above goes to show that simply taking ARD for a DUI will not save you from immigration consequences. It is important to fight your DUI. It is vital to consult an knowledgable and contacted DUI attorney. So will you be deported because of a PA DUI? It’s up to you to choose the right attorneys and fight.

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PA DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Avvo.com. Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency.