Announcement

Collapse
No announcement yet.

There is hope yet!!

Collapse
X
  • Filter
  • Time
  • Show
Clear All
new posts

  • There is hope yet!!

    Looks like we immigrants can now drink as much as USCs do..... without being robbed of house and yard. Cheers!

    Supreme Court Bars DUI Deportation Convictions

    The Immigration and Nationality Act (INA) permits deportation of an alien convicted of an "aggravated felony," which can include "a crime of violence for which the term of imprisonment [is] at least one year." In line with this provision, aliens convicted of driving under the influence of alcohol (DUI) in states which characterize a DUI conviction as a crime of violence have been subjected to automatic deportation, even if they have been legally residing in the U.S. for years.

    However, the U.S. Supreme Court recently barred deportation of an alien convicted of DUI pursuant to the aforementioned INA provision. In November 2004, the Court held in Leocal v. Ashcroft that state DUI offenses that do not require proof of any mental state, or require only a showing that an individual acted negligently in operating the vehicle, are not crimes of violence for purposes of expedited alien deportation.

    Crimes of Violence
    Pursuant to 18 U.S.C. Section 16, a "crime of violence" for which a convicted alien may be deported must involve either one of the following:

    1. Use of physical force against the person or property of another; or
    2. A felony that involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

    The Court in Ashcroft interpreted the first definition as requiring "active employment" of force. Accordingly, the Court concluded that a DUI offense is not a crime of violence where the DUI statute under which an alien was convicted does not require proof of any mental state or only requires proof that an individual acted negligently. The Court reasoned that a person convicted of DUI does not actively employ physical force against another, where the state's DUI statute does not require "a higher degree of intent than negligent or merely accidental conduct."

    Furthermore, the Court concluded that the second definition does not cover all negligent conduct (e.g., negligent operation of a vehicle), where the negligent conduct at issue did not involve a substantial risk that physical force might be used against another by virtue of committing the offense. The Court distinguished a DUI offense from burglary, which "involves a substantial risk that the burglar will use force against a victim in completing the crime."

    Implications of the Ashcroft Decision on Other Legal Immigrants
    Based on these interpretations, the Court reversed a deportation order that had been issued against a lawful permanent resident by the Board of Immigration Appeals (BIA) pursuant to Section 237 of the INA. Having pled guilty to two counts of DUI and causing serious bodily injury in an accident, the legal immigrant in this case was technically eligible for automatic deportation under a Florida DUI statute that characterized DUI offenses as crimes of violence. However, since Florida's DUI statute did not require proof of any mental state, the Court concluded that the DUI offense could not be characterized as a crime of violence. Redefining the nature of drunken driving, the Court effectively lifted the threat of deportation based on DUI convictions for millions of legal immigrants in the U.S.
    “...I may condemn what you say, but I will give my life for that you may say it”! - Voltaire

  • #2
    Looks like we immigrants can now drink as much as USCs do..... without being robbed of house and yard. Cheers!

    Supreme Court Bars DUI Deportation Convictions

    The Immigration and Nationality Act (INA) permits deportation of an alien convicted of an "aggravated felony," which can include "a crime of violence for which the term of imprisonment [is] at least one year." In line with this provision, aliens convicted of driving under the influence of alcohol (DUI) in states which characterize a DUI conviction as a crime of violence have been subjected to automatic deportation, even if they have been legally residing in the U.S. for years.

    However, the U.S. Supreme Court recently barred deportation of an alien convicted of DUI pursuant to the aforementioned INA provision. In November 2004, the Court held in Leocal v. Ashcroft that state DUI offenses that do not require proof of any mental state, or require only a showing that an individual acted negligently in operating the vehicle, are not crimes of violence for purposes of expedited alien deportation.

    Crimes of Violence
    Pursuant to 18 U.S.C. Section 16, a "crime of violence" for which a convicted alien may be deported must involve either one of the following:

    1. Use of physical force against the person or property of another; or
    2. A felony that involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

    The Court in Ashcroft interpreted the first definition as requiring "active employment" of force. Accordingly, the Court concluded that a DUI offense is not a crime of violence where the DUI statute under which an alien was convicted does not require proof of any mental state or only requires proof that an individual acted negligently. The Court reasoned that a person convicted of DUI does not actively employ physical force against another, where the state's DUI statute does not require "a higher degree of intent than negligent or merely accidental conduct."

    Furthermore, the Court concluded that the second definition does not cover all negligent conduct (e.g., negligent operation of a vehicle), where the negligent conduct at issue did not involve a substantial risk that physical force might be used against another by virtue of committing the offense. The Court distinguished a DUI offense from burglary, which "involves a substantial risk that the burglar will use force against a victim in completing the crime."

    Implications of the Ashcroft Decision on Other Legal Immigrants
    Based on these interpretations, the Court reversed a deportation order that had been issued against a lawful permanent resident by the Board of Immigration Appeals (BIA) pursuant to Section 237 of the INA. Having pled guilty to two counts of DUI and causing serious bodily injury in an accident, the legal immigrant in this case was technically eligible for automatic deportation under a Florida DUI statute that characterized DUI offenses as crimes of violence. However, since Florida's DUI statute did not require proof of any mental state, the Court concluded that the DUI offense could not be characterized as a crime of violence. Redefining the nature of drunken driving, the Court effectively lifted the threat of deportation based on DUI convictions for millions of legal immigrants in the U.S.
    “...I may condemn what you say, but I will give my life for that you may say it”! - Voltaire

    Comment


    • #3
      I wonder what this means for all the legal immigrants that were already deported due to DUI convictions?

      Koller, thanks for sharing!

      Comment


      • #4
        Interesting. And if you remember, the HR.4437 bill which passed in the House but failed to pass in the Senate in 2007 had a provision to make DUI a felony but only applying to immigrants not USCs as it was part of the Immigration Reform bill proposed by the Republicans.
        "What you see in the photograph isn't what you saw at the time. The real skill of photography is organized visual lying."

        Comment


        • #5
          It means nothing for those already deported.

          Comment


          • #6
            First things first.

            When you refer to a case, you usually do it by making a reference to the two parties in dispute along with the entry in the U.S. reports (formal quote). Saying "the court in Ashcroft" doesn't give you any clue, there were many cases argued by the Attorney General.

            This is the Leocal (Leocal v. Ashcroft) case, has to be, and this is not news at all!

            The case was not decided on the merits of DUI but on the elements of what constitutes a crime of violence under 18 USC.

            When it comes to multiple DUIs, the dispute is not about AF but about CIMT. It's about the elements of the offense under the categorical analysis, not about how much we don't like the actions the defendant took.

            Lopez-Mesa, Torres-Varella, Leocal, many cases that have arisen under both the CIMT and AF provisions of INA.

            The controversy in one of the BIA opinions comes form the dissent. They mixed two different crimes into one that appears to qualify as CIMT. Note that under the categorical analysis, you must commit a single act that, "by statute" is actually a CIMT. Combining two non-CIMTs does not produce a CIMT. That was their position. The court read it differently, because the crime of aggravated DUI under AZ law required a level of intent because the person had to have knowledge of suspended driving privileges due to a previous offense.

            Previous DUI without aggravating factors related to intent are not CIMTs because there's simply no intent element contained in the statute. Again, conduct is irrelevant, what matters is the statute of conviction.

            To qualify as CIMT, the statute must contain an element of intent. That's the latest development and a contribution made by former AG Mukasey. The problem now is that the courts will struggle with this for years to come because it tends to blur the lines even more when the courts must decide if a particular offense is a CIMT or not.

            Comment


            • #7
              HR 4437 did not create a crime for immigrants and another for USCs.

              Since citizenship is not an element of DUI, two individuals who have engaged in it would be "equally situated" regardless of where they come from. Treating them differently would be a violation of the equal protection clause of the 14th amendment. One cannot be guilty of a simple misdemeanor and another guilty of a felony based on conduct that first, is not criminal and second, doesn't relate to the statute in question or the criminal law.

              Wanted to make this clear.

              Comment


              • #8
                <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Kollerkrot:
                Looks like we immigrants can now drink as much as USCs do..... without being robbed of house and yard. Cheers!

                Supreme Court Bars DUI Deportation Convictions

                The Immigration and Nationality Act (INA) permits deportation of an alien convicted of an "aggravated felony," which can include "a crime of violence for which the term of imprisonment [is] at least one year." In line with this provision, aliens convicted of driving under the influence of alcohol (DUI) in states which characterize a DUI conviction as a crime of violence have been subjected to automatic deportation, even if they have been legally residing in the U.S. for years.

                However, the U.S. Supreme Court recently barred deportation of an alien convicted of DUI pursuant to the aforementioned INA provision. In November 2004, the Court held in Leocal v. Ashcroft that state DUI offenses that do not require proof of any mental state, or require only a showing that an individual acted negligently in operating the vehicle, are not crimes of violence for purposes of expedited alien deportation.

                Crimes of Violence
                Pursuant to 18 U.S.C. Section 16, a "crime of violence" for which a convicted alien may be deported must involve either one of the following:

                1. Use of physical force against the person or property of another; or
                2. A felony that involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

                The Court in Ashcroft interpreted the first definition as requiring "active employment" of force. Accordingly, the Court concluded that a DUI offense is not a crime of violence where the DUI statute under which an alien was convicted does not require proof of any mental state or only requires proof that an individual acted negligently. The Court reasoned that a person convicted of DUI does not actively employ physical force against another, where the state's DUI statute does not require "a higher degree of intent than negligent or merely accidental conduct."

                Furthermore, the Court concluded that the second definition does not cover all negligent conduct (e.g., negligent operation of a vehicle), where the negligent conduct at issue did not involve a substantial risk that physical force might be used against another by virtue of committing the offense. The Court distinguished a DUI offense from burglary, which "involves a substantial risk that the burglar will use force against a victim in completing the crime."

                Implications of the Ashcroft Decision on Other Legal Immigrants
                Based on these interpretations, the Court reversed a deportation order that had been issued against a lawful permanent resident by the Board of Immigration Appeals (BIA) pursuant to Section 237 of the INA. Having pled guilty to two counts of DUI and causing serious bodily injury in an accident, the legal immigrant in this case was technically eligible for automatic deportation under a Florida DUI statute that characterized DUI offenses as crimes of violence. However, since Florida's DUI statute did not require proof of any mental state, the Court concluded that the DUI offense could not be characterized as a crime of violence. Redefining the nature of drunken driving, the Court effectively lifted the threat of deportation based on DUI convictions for millions of legal immigrants in the U.S. </div></BLOCKQUOTE>

                What Date Did this Conclusion/Judgement take place??? On paper of coarse. It was rarely Enforced Prior Anyway!
                USC and Legal, Honest Immigrant Alike Must Fight Against Those That Deceive and Disrupt A Place Of Desirability! All Are Victims of Fraud, Both USC and Honest Immigrant Alike! The bad can and does make it more difficult for the good! Be careful who y

                Comment


                • #9
                  *Allows deportation of any illegal alien convicted of driving under the influence (DUI).

                  HR.4437

                  Seems to me that Sensenbrenner was trying to make DUI a felony for the first time ever under Federal law. It mentioned only applying to illegal immigrants, who knows where it might have stopped? LPRs next?

                  Being a felon for simply being illegal regardless of HOW you became illegal? Hardly American values IMO.

                  I'm glad that bill failed. It would have made the IIRIA of 1996 look like kids play!
                  "What you see in the photograph isn't what you saw at the time. The real skill of photography is organized visual lying."

                  Comment


                  • #10
                    No, what HR 4437 did was to make the offense an aggravated felony under immigration laws. The bill didn't change the criminal nature of the offense one bit.

                    Congress doesn't have the power to tell states how to define crime, and it didn't create a new crime under Title 18, what they did was simply include the offense under the aggravated felony statute for immigration purposes.

                    The interesting thing here is that the name of that statute, "aggravated felony", doesn't bear any resemblance to reality, even misdemeanors can be aggravated "felonies", meaning crimes that are not either aggravated nor felonies! Strange, but true.

                    Comment


                    • #11
                      Oh, and there's more, that bill was like a wonder boy for those who engage in debate related to criminal law or immigration law.

                      HR 4437 applied retroactively to many crimes. This brings again the issue of 212(c) relief that came up when the 1996 reform was passed. If you enter a plea in reliance to the law, it's simply unfair to change the law later on to your detriment.

                      Also, the bill created a new crime that clearly presented ex-post-facto issues. Criminalizing illegal presence without an opportunity for the alien to comply with the law in any meaningful way.

                      The DUI issue was minor compared to others. Senator Specter offered a reasonable alternative as a compromised, the bill that later evolved through midnight deals and tough debate to become S2611, and we all know what happened to that when the conference never took place because of clear political reasons.

                      It's clear Amnesty will never pass, not in the foreseeable future, and that may be a good thing given the current state of the economy. But creating a law with clear constitutional issues sends the wrong message to the people of this country and to the world.

                      Comment


                      • #12
                        what happens to the people that have a expedited removal?? the people that were inspected upon entry??

                        Comment


                        • #13
                          <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">The interesting thing here is that the name of that statute, "aggravated felony", doesn't bear any resemblance to reality, even misdemeanors can be aggravated "felonies", meaning crimes that are not either aggravated nor felonies! Strange, but true. </div></BLOCKQUOTE>

                          Yes that is true. I don't know quite how a misdemeanor can suddenly become a felony

                          Good to see ya back Houston.
                          "What you see in the photograph isn't what you saw at the time. The real skill of photography is organized visual lying."

                          Comment


                          • #14
                            <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by davdah:
                            Like it or not. Just as each state can treat a similar crime differently, so can the federal government. A DUI is not a federal crime unless it involves a federal circumstance.

                            Which is why your average Joe USC convicted of a DUI will only be subjected to state punishment in most cases. But, as you know Brit. If you or I get a conviction like that we can lose our pilots license. The Fed has a slightly different set of rules which are often stricter than the state. Lesson here is, don't drink and drive. </div></BLOCKQUOTE>

                            Exactly!!!!

                            Yet I Still seek the date??? Koller Forgot To Copy and paste the date!!!! Spanking Is In Order!!!
                            USC and Legal, Honest Immigrant Alike Must Fight Against Those That Deceive and Disrupt A Place Of Desirability! All Are Victims of Fraud, Both USC and Honest Immigrant Alike! The bad can and does make it more difficult for the good! Be careful who y

                            Comment


                            • #15
                              <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by MakeItRight!:
                              <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by davdah:
                              Like it or not. Just as each state can treat a similar crime differently, so can the federal government. A DUI is not a federal crime unless it involves a federal circumstance.

                              Which is why your average Joe USC convicted of a DUI will only be subjected to state punishment in most cases. But, as you know Brit. If you or I get a conviction like that we can lose our pilots license. The Fed has a slightly different set of rules which are often stricter than the state. Lesson here is, don't drink and drive. </div></BLOCKQUOTE>

                              Exactly!!!!

                              Yet I Still seek the date??? Koller Forgot To Copy and paste the date!!!! Spanking Is In Order!!! </div></BLOCKQUOTE>

                              I missed the date and thought that it was recent also. However, I believe the ruling was in November, 2004 which is what Koller's article stated. Just wasn't clear at first glance.

                              Comment



                              Working...
                              X