A non-citizen who commits a drunk driving felony and is sentenced to a year or more in prison now faces mandatory deportation and permanent banishment from the U.S., as the result of a decision by the Immigration Board of Appeals. 

This is a dramatic change that should be considered in every drunk driving case involving a non-citizen, experts tell Lawyers Weekly USA. 

These defendants will now face "the equivalent of the death sentence in immigration law," says attorney Ira Kurzban of Miami, author of a book on immigration law. 

"It's a situation most defense attorneys haven't focused on, and it could cause a serious malpractice problem," according to William Head of Atlanta, a co-founder of the National College for DUI Defense. 

In response to the decision, the Immigration and Naturalization Service has already arrested over 500 people in Texas and is in the process of deporting them based on their drunk driving convictions. 

Most of the arrests took place last month in a "roundup" called "Operation Last Call." The people arrested are mostly permanent residents who have lived in the U.S. for years. 

Similar roundups may occur in other states, predicts Robert Shearouse, public policy director of Mothers Against Drunk Driving in Dallas. "Texas was the pilot. The INS is testing the waters there." 

Meanwhile, it appears the INS has already made many more arrests. 

"I've gotten calls from all over the country from attorneys with clients with this DUI problem," says Daniel Kesselbrenner, executive director of the National Immigration Project of the National Lawyers Guild in Boston. 

In 33 states, drunk driving is a felony if the defendant has a certain number of prior convictions. The number required ranges from one to four. Typically, it's also required that the prior convictions occurred within a certain period of time. In Texas, for example, drunk driving is a felony if the defendant has had two prior convictions in the past 10 years. 

In these states, drunk driving felonies are very common, says Head. "I see second and third offenders all the time, and lawyers pleading them out left and right." 

In all the states, drunk driving generally is also a felony if it results in bodily injury. 

The new decision may also apply to a drunk driving misdemeanor that results in a prison sentence of more than a year, as can happen in some states. INS officials apparently are taking the position that it does apply in this situation. Whether they will be upheld, however, is very unclear, experts say. 

With either a felony or a misdemeanor, it doesn't matter whether the prison sentence is actually served. Under a 1996 amendment to immigration law, a suspended sentence is enough. (8 U.S.C. Sect. 1101(a)(48)(B).)

The issue decided in the new case was whether a drunk driving felony is an "aggravated felony" as defined in immigration law. 

For non-citizens convicted of an "aggravated felony," deportation is mandatory, and they can never return to the U.S. 

"There is no hope of forgiveness or discretion," says Franco Capriotti, an immigration attorney in Portland, Ore. 

"You're just gone forever," says Lisa Brodyaga, an immigration attorney in Harlingen, Texas. 

For the INS, "It's like shooting fish in a barrel," says Kurzban. 

The definition of "aggravated felony" -- which in the past included only murder, drug trafficking and illicit trafficking in firearms or destructive devices -- was amended in 1996 to include, among other things, a "crime of violence ... for which the term of imprisonment [is] at least one year." (8 U.S.C. Sect. 1101(a)(42)(F).) 

"Crime of violence" includes 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." (18 U.S.C. Sect. 16.) 

In the new decision, the Board of Immigration Appeals said a drunk driving felony meets this definition, citing media reports that drunk drivers annually cause a death toll of over 25,000 and more than five billion dollars in property damage. 

The decision involved a permanent resident who was convicted in Arizona in 1995 of driving under the influence while his license was suspended or revoked. Under Arizona law, this was a felony. He was sentenced to prison for four months, followed by five years of probation. He later violated the conditions of his probation and was sentenced to prison for 2 1/2 years.

In general, where the client is a non-citizen, defense attorneys want to avoid a conviction for a felony with a prison sentence of one year or more, says Richard Prinz, an immigration and criminal attorney in Houston. 

In plea bargaining, "Try to keep them misdemeanors," he says. "Or with a felony, keep the sentence under a year." 

For example, he says, the client might agree to actual prison time of 364 days, rather than a two-year suspended sentence with probation. 

Otherwise, you should just be more reluctant to plead guilty, given the potential consequences, says Head. 

That's true even with a first offense, since a guilty plea in the case could set the client up for a felony conviction in a later case, if prosecuted for drunk driving again in the future, says attorney John Tarantino of Providence, R.I., editor of the DWI Journal. 

Of course, even if a subsequent conviction wouldn't be a felony in your state, the client might move to a state where it would be. 

With every client, defense attorneys should first find out whether they are a citizen, says Linda Ramirez of Portland, Ore., a co-chair of the immigration committee of the National Association of Criminal Defense Lawyers. 

You should look at their immigration documents, because sometimes they don't understand their own status, she says. 

And don't assume they are citizens just because they don't have an accent, says Carol Wolchok, director of the ABA's Center of Immigration Law and Representation in Washington. 

If they're not citizens, and if you're not familiar with the immigration rules, you should associate with someone who is, says Head. 

"Find a buddy in an immigration lawyer," recommends Jimmy Wu of Seattle, president of the American Immigration Lawyers Association. 

"At a minimum, you should contact an immigration attorney or give the client, in writing, the names of some attorneys or an organization to call," says Capriotti.

If a non-citizen is convicted of a drunk driving felony, what are the odds that the INS will find out? This isn't clear. Nor is it clear how they would find out. 

The hundreds of people arrested in Texas were identified from county probation department records, which indicated for each person on probation whether the person was a citizen, says Neil Jacobs, assistant district director for investigations at the INS in Dallas. 

Probation departments in other counties may or may not include this information, he says. 

The INS also has agents working full-time in prisons, interviewing prisoners, he says. And they get information from courts and the police. 

Both the state and federal bureaus of prisons are now under orders to notify the INS when they are holding someone who is not a citizen, says Kurzban. 

Someone might also be caught when they apply for citizenship and admit they had a DUI, thinking it's not a big deal, says Kurzban. Or when they leave the U.S. to travel and then try to get back in. 

In some states, drunk driving misdemeanors can be punished by more than a year in prison. 

For example, in Minnesota, it's an "enhanced gross misdemeanor," punishable by up to two years in prison, if within 10 years of a DUI, someone has two more, or has one while a child is riding in the car or while crossing a railroad track, says defense attorney Paul Ahern of Minnetonka, Minn. 

Arguably, such an offense is also a "crime of violence," lawyers say. 

The argument is that while the definition of "crime of violence" refers to "felony," this means a felony under federal law, not state law. And a federal felony is defined as an offense punishable by more than one year of prison. (18 U.S.C. Sect. 3559(a).) Thus, anything punishable by more than a year of prison is a felony for purposes of the "crime of violence" definition. 

The basis of the argument is that courts have ruled that a drug trafficking misdemeanor under state law is a crime of violence because the elements of the offense amount to a felony under federal law, says Kesselbrenner. 

An alternative argument would be that "felony" in the definition of "crime of violence" means either a state-law felony or a federal felony. 

Under either argument, misdemeanors such as the ones in Minnesota would be covered. 

INS officials can be expected to make such arguments, says Kurzban. 

Whether courts will agree, however, is very unclear, experts say. 

The issue of whether a drunk driving felony is a "crime of violence" is now before the Fifth Circuit in a case out of Texas. 

It involves an immigrant who was convicted of drunk driving for the third time and received a suspended five-year prison sentence. The INS later arrested him and began deportation proceedings. The Fifth Circuit issued a stay and agreed to review the case. 

In his brief, the defendant argues that while drunk driving involves a risk of injury to others, it doesn't involve a risk that physical force may be "used" against others, as required by the definition of "crime of violence." Such a risk may be present, for example, with robbery or burglary, says the defendant's attorney, Clarissa Guajardo of Houston. 

The government's brief in the case is due on Sept. 24, according to Guajardo. 

You can get copies of both the Board of Immigration Appeals decision and the defendant's brief in the Fifth Circuit case from Lawyers Weekly USA at our regular copying charge rate. 

The Board of Immigration Appeals decision (In re Magallanes-Garcia, No. 3341) is Lawyers Weekly USA No. 9914039(7 pages). The Fifth Circuit brief in Camacho-Marroquin v. INS, No. 98-60256, is Lawyers Weekly USA No. 9914040 (23 pages). To order, call 800-933-5594.