Brother in Law on Tourist Visa charged with DUI

[Mansini77 100]

Back in November of 2017, my brother in law decided it would be a good idea to get behind the wheel with his blood alcohol level double the legal limit.  Little did he know at the time that it would be a mistake that would inflict major consequences on his life, another driver, and both families.  He ended up crashing into another driver and severely injuring him.  My brother in law, which I'll call Robert, was arrested and put into jail for the weekend.  My wife's family posted bond of $5000 and he was free, for the time being.  At the time of the accident, Robert was dating an American girl for a few months, and are genuinely in love.  As Robert needed legal counsel, fast!  He employed a reputable defense lawyer for the DUI and also an immigration attorney to handle any bumps in that road to come.

 

On the immigration side of things, Robert and his girlfriend married a month after the DUI.  In January, Robert's wife became pregnant.  From an outsider's perspective, this was all happening so fast, but both appeared happy and hopeful for their futures and family together.  His wife then applied for an I-130 for Robert.  Since his wife didn't have the income, nor the assets, she needed someone else to sponsor Robert for his affidivit of support.  That person turned out to be me, as I had the income, immigration experience with my own wife, and good faith in Robert.  

 

On the DUI matter.  After much legal wrangling,  court date after court date, DUI class after DUI class, the day of judgement finally came.  I was confident, knowing Robert's clean record and his quiet and calm demeanor that the judge would show some mercy and let Robert stay on house arrest with the ability to work off his debts, or stay in a halfway house.  Well, the individual who Robert hit in the DUI wasn't going to take the issue lightly and was present at Robert's sentence.  The victim has had multiple surgeries, and God only knows how much pain and suffering.  The victim and his family pleaded to the judge for Robert to serve jail time and weren't going to be happy about any other punishment.  The judge, gave Robert four years in prison.  The victim, and his family were all smiles, while Robert and his wife were shocked to say the least.  Note, I wasn't present at the sentencing, only writing this via word of mouth from my wife who was present.

 

I'm not here to make a plea for my brother in law's freedom.  I'm here to ask what kind of ramifications the judge's sentence has on Robert's immigration case.  Correct me if I'm wrong, but aren't these forms, the I-130 and the I-864 both time sensitive?  I doubt Robert's wife or immigration attorneys can simply write the USCIS and say "Oh, by the way, Robert is in jail now for a couple of years, do you mind putting a hold on the case until he is released in two years on good behavior?".  I didn't speak much about the matter to my wife, as she is very emotional right now and only just want to comfort her.  My wife's entire family are all going through a lot and I don't want to be the one to say the hard truths.  As Ben Shapiro says "Facts don't care about your feelings", and I just want direct and honest answers about my brother in law's future and chance of remaining in the United States after he is released.  I'm not making an excuses for him.  He made a choice, and that choice had major consequences.  

 

In a nutshell, what happens to his immigration case?  Will it be pending regardless of his prison sentence?  Will it be put on hold?  Or is it forfeit?  Granted he is released in two years for good behavior.  How will this prison sentence affect his immigration process?  I mean,  what are the odds now of a successful permanent resident card in his hands? Deportation is also in the cards as well. 

 

Any info would be appreciated.   Probably some would like to preach to me about DUI and how harmful it is to society and that he got what he deserved.  I'm not going to get into a fight about DUI law, because the case is closed and I'm not his attorney or his mother.  Purely immigration, peeps.  Thanks.

[Teemo 252]

Tragic and painful situation on all sides.

 

Unfortunately, upon release, he will almost definitely be released straight into ICE's hands who will summarily deport him. 

Edited June 14, 2018 by Teemo

[geowrian 22,337]

The I-130 will be adjudicated regardless of his criminal record or being incarcerated. However, if she filed for AOS (via an I-485 concurrently) as well, then they will adjudicate on their timeline. Since he won't be able to attend the interview, I'm assuming that application will be denied. If an I-485 was not filed yet, then the I-130 will just continue to process but he won't be able to act on it to do the visa process anytime soon. He would also have accrued unlawful presence in excess of 1 year, resulting in a 10 year bar on any visa upon exit from the US.

 

He needs a very good immigration attorney at a minimum, as well as a good criminal attorney. This is not a DIY case.

 

What was the exact crime he was convicted of? A DUI alone is not a bar for immigration purposes, but getting a sentence of years of prison just for a DUI would be highly unusual. I'm assuming he was also charged with some sort of other crime as well (likely a felony, such as aggravated DUI). Accordingly, the criminal offense is very likely to be considered a CIMT based upon the circumstances. Again, a DUI is not a CIMT itself, but depending on the circumstances it can be one...given the result of his actions and the associated sentence, I would assume they found his actions to be in moral turpitude. I would expect immigration officials to treat it as least as harshly.

 

As noted above, the most likely result is he will be released to ICE and removal proceedings started.

 

All of the above inadmissibilities are waivable, and it's not impossible for a Cancellation of Removal (CoR) either. But honestly, I think the chances are extremely slim in his case. This is where a good attorney would help to set the record straight. I'm not a lawyer and this is not legal advice...but I think they should seriously consider plans for living outside the US together upon his release.

Edited June 14, 2018 by geowrian

[Going through 5,671]

5 hours ago, Mansini77 said:

In a nutshell, what happens to his immigration case?  Will it be pending regardless of his prison sentence?  Will it be put on hold?  Or is it forfeit?  Granted he is released in two years for good behavior.  How will this prison sentence affect his immigration process?  I mean,  what are the odds now of a successful permanent resident card in his hands? Deportation is also in the cards as well. 

Extremely low chance of him getting the GC.

More than likely upon his release, he will later appear before an immigration judge and likely ordered removed from the country.

At this point all you can really do is help find him a good lawyer.

[Cyberfx1024 7,980]

5 hours ago, geowrian said:

The I-130 will be adjudicated regardless of his criminal record or being incarcerated. However, if she filed for AOS (via an I-485 concurrently) as well, then they will adjudicate on their timeline. Since he won't be able to attend the interview, I'm assuming that application will be denied. If an I-485 was not filed yet, then the I-130 will just continue to process but he won't be able to act on it to do the visa process anytime soon. He would also have accrued unlawful presence in excess of 1 year, resulting in a 10 year bar on any visa upon exit from the US.

He needs a very good immigration attorney at a minimum, as well as a good criminal attorney. This is not a DIY case.

What was the exact crime he was convicted of? A DUI alone is not a bar for immigration purposes, but getting a sentence of years of prison just for a DUI would be highly unusual. I'm assuming he was also charged with some sort of other crime as well (likely a felony, such as aggravated DUI). Accordingly, the criminal offense is very likely to be considered a CIMT based upon the circumstances. Again, a DUI is not a CIMT itself, but depending on the circumstances it can be one...given the result of his actions and the associated sentence, I would assume they found his actions to be in moral turpitude. I would expect immigration officials to treat it as least as harshly.

As noted above, the most likely result is he will be released to ICE and removal proceedings started.

All of the above inadmissibilities are waivable, and it's not impossible for a Cancellation of Removal (CoR) either. But honestly, I think the chances are extremely slim in his case. This is where a good attorney would help to set the record straight. I'm not a lawyer and this is not legal advice...but I think they should seriously consider plans for living outside the US together upon his release.

It was probably Felony DUI and a Vehicular Assault from having to deal with this from a family member. I really do not see a good outcome to this at all when he gets out of prison. They might be able to file a waiver for him in the future once he is deported but it would have to be after he is deported.

[NigeriaorBust 4,087]

  It looks like if they want to live together they may want to consider his home country.  They can probably set themselves up nicely on the money they would have to spend  on legal fees here and even if they spend the money on legal fees they may end up in his country in the end. 

[Boiler 45,519]

What was Robert doing in the US, was he visiting, on a work visa?

[Cyberfx1024 7,980]

1 hour ago, Boiler said:

What was Robert doing in the US, was he visiting, on a work visa?

I was thinking the same thing as well.

[Teemo 252]

3 hours ago, Boiler said:

What was Robert doing in the US, was he visiting, on a work visa?

Subject line says tourist visa

[Boiler 45,519]

Ooops

 

So he will have a 10 year ban plus whatever for the Crime. Deportation, couple of waivers, seems easier for her to be the one moving.

[Mansini77 100]

He entered on a visitor visa, no permission for work. 

 

Just spoke to to a family member on the phone on what he was charged with. 

 

DUI and Vehicular Assault

[geowrian 22,337]

14 minutes ago, Mansini77 said:

He entered on a visitor visa, no permission for work. 

 

Just spoke to to a family member on the phone on what he was charged with. 

 

DUI and Vehicular Assault

Yup, then he's got numerous inadmissibility, and will very likely be deported shortly after his release.

The combination of crimes is almost certainly a CIMT.

[Teemo 252]

10 hours ago, geowrian said:

The I-130 will be adjudicated regardless of his criminal record or being incarcerated. However, if she filed for AOS (via an I-485 concurrently) as well, then they will adjudicate on their timeline. Since he won't be able to attend the interview, I'm assuming that application will be denied. If an I-485 was not filed yet, then the I-130 will just continue to process but he won't be able to act on it to do the visa process anytime soon. He would also have accrued unlawful presence in excess of 1 year, resulting in a 10 year bar on any visa upon exit from the US.

 

He needs a very good immigration attorney at a minimum, as well as a good criminal attorney. This is not a DIY case.

 

What was the exact crime he was convicted of? A DUI alone is not a bar for immigration purposes, but getting a sentence of years of prison just for a DUI would be highly unusual. I'm assuming he was also charged with some sort of other crime as well (likely a felony, such as aggravated DUI). Accordingly, the criminal offense is very likely to be considered a CIMT based upon the circumstances. Again, a DUI is not a CIMT itself, but depending on the circumstances it can be one...given the result of his actions and the associated sentence, I would assume they found his actions to be in moral turpitude. I would expect immigration officials to treat it as least as harshly.

 

As noted above, the most likely result is he will be released to ICE and removal proceedings started.

 

All of the above inadmissibilities are waivable, and it's not impossible for a Cancellation of Removal (CoR) either. But honestly, I think the chances are extremely slim in his case. This is where a good attorney would help to set the record straight. I'm not a lawyer and this is not legal advice...but I think they should seriously consider plans for living outside the US together upon his release.

Once the removal order is issued, USCIS no longer has jurisdiction on the I-485, the courts do. I'm not sure at what point in the timeline it will be issued, will it be during or after his prison time?

 

A DUI that injured someone will almost undoubtedly be seen as a CIMT.

 

At some point he will appear in front of an immigration judge. One option is to ask ICE to exercise prosecutorial discretion and not spend the resources to have him deported. But with a felony vehicular assault and so much jail time, he will be considered a threat to public safety, so there will be close to a 0% chance ICE will do that. But with a USC wife and child, not a 0% chance I guess.  

https://www.nolo.com/legal-encyclopedia/which-undocumented-persons-are-helped-by-prosecutorial-discretion.html

 

11 hours ago, Teemo said:

Tragic and painful situation on all sides.

 

Unfortunately, upon release, he will almost definitely be released straight into ICE's hands who will summarily deport him. 

Still my POV

[Cyberfx1024 7,980]

26 minutes ago, Teemo said:

Once the removal order is issued, USCIS no longer has jurisdiction on the I-485, the courts do. I'm not sure at what point in the timeline it will be issued, will it be during or after his prison time?

A DUI that injured someone will almost undoubtedly be seen as a CIMT.

At some point he will appear in front of an immigration judge. One option is to ask ICE to exercise prosecutorial discretion and not spend the resources to have him deported. But with a felony vehicular assault and so much jail time, he will be considered a threat to public safety, so there will be close to a 0% chance ICE will do that. But with a USC wife and child, not a 0% chance I guess.  

https://www.nolo.com/legal-encyclopedia/which-undocumented-persons-are-helped-by-prosecutorial-discretion.html

Still my POV

My POC as well from what I see with this whole thing. After being one of the first people on a scene of a drunk driver hitting another vehicle and killing the driver while injuring the passenger I feel NO SYMPATHY FOR DRUNK/HIGH DRIVERS. This is for everyone and includes my family as well. After having a family member pretty much do the exact same thing except it was 4 people instead only 1 I called it when I said the main thing he got hit with was the "Vehicular Assault".

Edited June 14, 2018 by Cyberfx1024

[Boiler 45,519]

Usually waivers are pretty straight forward, illegal presence is no biggie, well currently, obviously things can change.

 

But he has a felony and a deportation likely, then what are his job prospects and presumably there was a restitution order. And now a wife and a child.

Edited June 14, 2018 by Boiler