Immigration guide
Drink, drive, get deported
Atty. Emmanuel S. Tipon, Philippine NewsMay 17, 2013 9:40am
“Don’t drink and drive” is a slogan that ought to be taken seriously especially if you are an alien.
Gerardo, a Mexican citizen, was an “alien present in the United States without being admitted or paroled.”
He was therefore subject to removal pursuant to 8 U.S.C. Section 1182(a)(6)(A)(i).
While unlawfully driving under the influence of alcohol in violation of the California Penal Code, he killed a person.
He pleaded guilty and was sentenced to 16 months in prison and served approximately half of that time.
The following year, the government initiated removal proceedings against him because of his conviction for vehicular manslaughter.
He conceded removability and applied for cancellation of removal or, in the alternative, for voluntary departure.
To be eligible for such relief, he had to show, among other things, that he was a person of “good moral character” during the 10-year period immediately preceding his application for cancellation or the 5-year period preceding his application for voluntary departure.
The Immigration Judge denied his applications finding that he was not statutorily eligible for relief because he was not a person of good moral character and ordered him deported.
Immigration Law enumerates certain categories of individuals who are conclusively presumed to lack good moral character. 8 U.S.C. Section 1101(f). Gerardo fell within one of the categories, namely, an individual who has been “confined as the result of conviction, to a penal institution for an aggregate period of one hundred and eighty days or more.” 8 U.S.C. Section 1101(f)(7).
The government established that the alien was imprisoned for more than 180 days as a result of his vehicular manslaughter conviction. The Board of Immigration Appeals affirmed.
The alien did not dispute on appeal to the Court of Appeals that the statute precluded him from establishing eligibility for relief, but asked the court to declare the statute unconstitutional on the ground that it violates the equal protection of the laws and the due process clause of the Fifth Amendment.
He argued that the vice of the statute is that it conclusively presumes that an individual lacks good moral character based solely on the length of time served in prison, rather than on the nature of the underlying criminal conduct. Since there is a wide variation in sentences imposed by the different states for the same criminal conduct, he contended that the statute allowed disparate treatment of similarly situated individuals in violation of equal protection principles.
He claimed that Congress must use conduct-based classifications, as it has elsewhere in Section 1101(f), by specifying the particular criminal offenses which trigger the conclusive presumption that an individual lacks good moral character.
The court rejected the alien’s argument, saying that Congress rationally concluded that in most cases aliens who have been convicted of crimes serious enough to warrant at least six months of incarceration will lack the good moral character necessary to warrant discretionary relief from removal.
Congress was entitled to rely on that judgment to create the conclusive presumption of Section 1101(f)(7).
The court concluded that there may well be cases in which the same underling crime results in a period of incarceration of seven months in one case but only five months in another, but that disparity in the margins does not render the classification invalid under the rational basis test. Romero-Ochoa v. Holder, No. 08-74277, 04/10/13, CA9.
COMMENT: Could the alien have been saved from deportation? Possibly. He had the qualifying relatives to make him eligible for cancellation of removal.
His wife was a lawful permanent resident of the United States and three of his five children were U.S. citizens.
He could have fought the drunk driving charge by refusing a blood test without a warrant as the driver did in Missouri v. McNeely, decided last month by the U.S. Supreme Court, a case we discussed in another article. Or he could have entered into a plea bargain and negotiated a sentence of less than 180 days, thereby avoiding the conclusive presumption that he was a person not of good moral character.
When an alien is charged with a criminal offense, it is best to hire a criminal defense attorney who also knows immigration law so that the attorney can adopt a strategy that will avoid deportation. - Philippine News
Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense.
http://www.gmanetwork.com/news/story...e-get-deported
