Options If Green Card Is Revoked After DUI

What can you do if the Department of Homeland Security (DHS) or U.S. Citizenship and Immigration Services (USCIS) has revoked your green card as the result of driving under the influence (DUI) (also called driving while intoxicated or DWI)?

You will be permitted an opportunity to challenge the agency's action in immigration court. Upon revoking the green card, the DHS will also initiate removal proceedings against you and serve you with a Notice to Appear (NTA) before an immigration judge. At the court hearing (in the Executive Office for Immigration Review, or EOIR), you will have the opportunity to contest the allegations against you and potentially be able to get your green card (lawful permanent residence) back.

What to Do After Receiving a Notice to Appear

Once you receive a notice to appear in immigration court, you will be best served by contacting an immigration attorney. If your hearing date is soon and you have not yet contacted an attorney, you can appear at your first hearing, called a Master Calendar Hearing, at which time you can request the opportunity to do so. Whatever you do, don't fail to show up at the Master Calendar or any other court hearing, or an order of removal will automatically be entered against you, and you will be forced to leave the U.S., with a prohibition on returning for many years.

Because of the strictness and complexity of immigration laws, this is not a matter you should attempt to handle yourself, perhaps hoping that the judge will show leniency if you come up with an excuse for your behavior. If you can't show a specific legal reason why you should keep your green card, you risk of being removed (deported).

Is a DUI Always Grounds for Deportation/Removal?

A DUI conviction alone will not usually result in removal/revocation of a green card. However, if DHS has decided to try to revoke yours, it is likely that aggravating factors were present that result in the offense being deemed a crime involving moral turpitude or a crime of violence. The exact allegations by the DHS will be set forth in the Notice to Appear.

Your attorney will be invaluable to disputing the allegations as well as in gathering the necessary evidence and citing the relevant laws to disprove them.

Requesting Relief from Deportation/Removal

 In addition to disputing the overall allegations, you will want to apply for any relief available in the event that you are found removable, such as:

1. Cancellation of Removal for Certain Permanent Residents, or in the alternative
2. Voluntary Departure.

Cancellation of Removal for Certain Permanent Residents

Qualifying for the relief of cancellation of removal depends largely on the length of your presence in the U.S. before the incident took place and the number of years you have had a green card. For example, you may qualify for cancellation of removal by filing form EOIR-42A if:

1. you have been a permanent resident (green card holder) for at least five years
2. you have been in the U.S. for at least seven years before the incident occurred, regardless of your immigration status, and
3. you have not been convicted of an aggravated felony. 

If the immigration judge grants cancellation of removal, your green card will be reinstated. In some cases, meeting the above requirements for cancellation can be sufficient by themselves to warrant the judge's favorable discretion. However, if in addition to the DUI, other negative factors exist, the immigration judge will balance those adverse factors against the favorable factors. Some favorable factors include evidence of :

• significant family ties in the U.S.
• lengthy presence in the U.S., particularly if you have lived here since childhood,
• hardship to you and/or your family if you were to be removed/deported,
• your value and service to the community, and
• your rehabilitation since the DUI.

Upon considering all of the evidence and hearing from witnesses., the immigration judge will render a decision as to whether or not to cancel your removal. If the decision is not favorable, you will have the right to appeal the judge's decision to the Board of Immigration Appeals within 30 days of the judge’s decision. And again, you also have the right to, and are urged to seek, legal representation.

Voluntary Departure

In case all else fails, your lawyer will probably want to add a request for voluntary departure to your claims before the immigration judge. This is simply a way of avoiding an order of removal, by saying that you will leave the U.S. on your own. The advantage is that it also avoids your becoming inadmissible to the U.S. for several years based on the order of removal. For more information, see "Voluntary Departure vs Deportation."