sphyrapicus

Andrew:

See the following:

In an opinion dated April 4, 2002, the Board of Immigration Appeals overruled its earlier 1988 decision in Matter of Magellanes, Interim Decision 3341. In Magellanes, the Board held that an even a long-term resident alien - could be removed (deported) for driving under the influence. The Board's reasoning in that case turned on the issue of whether or not there was a substantial chance that the alien would use force in committing the crime. In Magellanes, the board decided that the act of driving under the influence fit the statutory definition of a "Crime of Violence", in the US Code, thereby making the offender deportable.

On April 4, 2002, in In re Luis Manuel Ramos, 23 I&N Dec. 336 (BIA 2002) that an alien convicted of a DUI is not removable and terminated the removal proceedings against Mr. Ramos. Mr. Ramos had been found removable by an Immigration Judge after his second conviction in ten years for DUI. Under an enhancing provision in the Massachusetts statute, Mr. Ramos was sentenced to two years. imprisonment for his second DUI offence. The Board specifically went on to overrule its prior decisions (Including Magellanes) ordering removal for DUI offenses. In reaching its decision, the Board held that a DUI would be considered a crime of violence if it was committed at least recklessly and also involved a substantial risk that the perpetrator would resort to the use of force to carry out the crime. The Board held that absent a decision by a federal court determining whether DUI was a crime of violence, the board would apply the elements of DUI law in that particular jurisdiction to determine if a DUI constituted a crime of violence and was therefore a deportable offence.

Proceedings brought by the Service against Mr. Ramos highlight - again - the injustice of the immigration law as applied to long standing permanent residents. Mr. Ramos had been a permanent resident of the indicted States since June 1969. Not having naturalized since that time, he became subject to removal purely because of his DUI conviction. The Service, rather than apply prosecutorial discretion, chose instead to pursue Mr. Ramos. removal. Therefore, with 30 years as a law abiding resident (other than his DUI's) in the United States, Mr. Ramos found himself subject to removal. As a practice point, therefore, it is most helpful if attorneys would counsel their permanent resident clients to apply for U.S. citizenship through the naturalization process as soon as they become eligible to do so.

Copyright Farhad Sethna, 2002

Folinskyinla

Hi:

The use of the terms "DUI" and "DWI" depends upon local usage and can be considred roughly the same.

One "simple" DUI/DWI would not get one deported. But various aggravated DUI/DWI just might. Also, many multiple convictions might. Or lets say DUI/DWI while on probation with the license suspended.

Also, this area is one of contention and the courts are going every which way.

Botom line -- no definite answer. Personally, I think DUI/DWI is a CIMT. But the law and I disagree on that one.

Andrew Defaria

sphyrapicus wrote:

    > Originally posted by Andrew Defaria
    >> I knew I'd be corrected. I wonder, however, how many LPRs are
    >> deported for DWI (BTW: I assume that DWI is Driving While
    >> Intoxicated. I wonder if DUI (Driving Under the Influence), which I
    >> think covers under the influence of all thinks like drugs too, also
    >> applies).
    > Andrew:

Why did you address this to me? You corrected my corrector - not me!
Perhaps you didn't see his post.

Personally I don't see this as injustice. If immigrants wish to stay
here they should do what it takes to become a citizen. Either that or
they should remain squeaky clean.

    > See the following:
    > In an opinion dated April 4, 2002, the Board of Immigration Appeals
    > overruled its earlier 1988 decision in Matter of Magellanes, Interim
    > Decision 3341. In Magellanes, the Board held that an even a long-term
    > resident alien - could be removed (deported) for driving under the
    > influence. The Board's reasoning in that case turned on the issue of
    > whether or not there was a substantial chance that the alien would use
    > force in committing the crime. In Magellanes, the board decided that
    > the act of driving under the influence fit the statutory definition of
    > a "Crime of Violence", in the US Code, thereby making the offender
    > deportable.
    > On April 4, 2002, in In re Luis Manuel Ramos, 23 I&N Dec. 336 (BIA
    > 2002) that an alien convicted of a DUI is not removable and terminated
    > the removal proceedings against Mr. Ramos. Mr. Ramos had been found
    > removable by an Immigration Judge after his second conviction in ten
    > years for DUI. Under an enhancing provision in the Massachusetts
    > statute, Mr. Ramos was sentenced to two years. imprisonment for his
    > second DUI offence. The Board specifically went on to overrule its
    > prior decisions (Including Magellanes) ordering removal for DUI
    > offenses. In reaching its decision, the Board held that a DUI would be
    > considered a crime of violence if it was committed at least recklessly
    > and also involved a substantial risk that the perpetrator would resort
    > to the use of force to carry out the crime. The Board held that absent
    > a decision by a federal court determining whether DUI was a crime of
    > violence, the board would apply the elements of DUI law in that
    > particular jurisdiction to determine if a DUI constituted a crime of
    > violence and
    > was therefore a deportable offence.
    > Proceedings brought by the Service against Mr. Ramos highlight - again
    > - the injustice of the immigration law as applied to long standing
    > permanent residents. Mr. Ramos had been a permanent resident of the
    > indicted States since June 1969. Not having naturalized since that
    > time, he became subject to removal purely because of his DUI
    > conviction. The Service, rather than apply prosecutorial discretion,
    > chose instead to pursue Mr. Ramos. removal. Therefore, with 30 years
    > as a law abiding resident (other than his DUI's) in the United States,
    > Mr. Ramos found himself subject to removal. As a practice point,
    > therefore, it is most helpful if attorneys would counsel their
    > permanent resident clients to apply for U.S. citizenship through the
    > naturalization process as soon as they become eligible to do so.
    > Copyright Farhad Sethna, 2002


--
Car service: If it ain't broke, we'll break it.

Andrew Defaria

sphyrapicus wrote:

    > Originally posted by Folinskyinla
    >> Although your point is extremley well taken, the law of abandonment
    >> of LPR is a lot more complicated that you describe. A small, but
    >> appreciable part of my practice involves abandoment and I've
    >> developed some expertise in it.
    > Yes, you definitely know a hell of a lot more about this than I do!
    > You won't get any argument from me there. I was merely trying to
    > illustrate my point that there are many reasons for seeking
    > citizenship - the issue of residency abandonment is yet another
    > relevant motivating factor that needs to be considered.

While there may be reasons for seeking citizenship that was not really
my question. It seems there are many, many LPRs who do not seek it. My
question was why don't they? It seems clear that either 1) they don't
view the reasons as important enough or 2) they are unaware of the
importance of. Some of the highlighted cases in this very thread bear
this out in that the LPRs are often long standing non-citizens - one was
30 years. If he didn't naturalize in 30 years then it's clear that he
did not consider it important or desirable enough.

--
Why do they sterilize needles for lethal injections?

sphyrapicus

It was only the two of us involved in this discourse. You said you heard you could only be held responsible for a crime for the first 5 years. I responded with "nope...." and I mentioned DWI. You asked what DWI was and I responded with the message about the BIA decision on DUI. I think one of the headers must have got screwed up. Otherwise, it would have been me responding to myself!

sphyrapicus

That I can't answer. For me it is a no-brainer. As for others, I have no idea why they wouldn't seek citizenship, given the factors I have outlined and the potential risks involved.

Why do some people smoke? I know it causes lung cancer so I don't smoke. For others, they keep smoking even though they know there is a risk. I can't speak for other people - only for myself.

Mrraveltay

supernav wrote:
    >>When asked he said he saw little need or benefit with becoming
    >>>a citizen.
    >
    >
    >
    >
    > True. I'm a native american, and i'm under no obligation to even
    > "recognize" a United States of America. When i cross the border, i just
    > flash my tribal passport and get waived right through.

Is it possible to have a spouse immigrate to your tribal lands without a
US visa?