Aggravated Unlicensed Operation of a Motor Vehicle Could Lead to Deportation

If you or anyone you know with an immigration status has been accused of a crime, this is a major development that could lead to deportation.

On March 31^st, 2021, the Board of Immigration Appeals issued a precedent decision in Matter of Vucetic, 28 I&N Dec. 276 (BIA 2021), ruling a conviction for New York’s Aggravated Unlicensed Operation of a Motor Vehicle, in the 1^st Degree, in violation of NYS VTL §511.3(a)(i), is categorically a conviction for a “crime involving moral turpitude” (CIMT).

The adverse immigration consequences of a conviction for a felony CIMT are severe and impact all non-citizens, whether the person is:

• A lawful permanent resident (LPR)
• Has other non-immigrant status (such as a student or employment related visa
• Has a grant of Temporary Protected Status (TPS) or Deferred Action for Childhood Arrivals (DACA)
• Is already in deportation-removal proceedings
• Is undocumented and hopes to one day gain legal status in this country.

To properly fulfill their obligations under Padilla v. Kentucky, 559 U.S. 356 (2010), defense counsel must advise their client of these adverse consequences.

What are the consequences? Deportation?

A permanent resident convicted of a felony CIMT is rendered inadmissible to the United States.

This means that when they return to the U.S. after traveling abroad, they may be taken into ICE custody; subjected to mandatory detention (customarily in a local jail under contract with ICE) while their deportation-removal proceedings are pending.

Ultimately, they may be deported-removed from the U.S. if they do not qualify for, or are not granted, some form of relief from removal.

Such a conviction renders a person seeking to adjust their status and become a lawful permanent resident inadmissible to the U.S. If they are ineligible for, or are denied a waiver of inadmissibility, their application will be denied, and they will likely be deported. 

Dependent on Immigration Status

• A felony conviction for a CIMT may also render a lawful permanent resident subject to the criminal grounds deportability if the underlying offense took place within five (5) years of the person’s admission to the U.S. as a lawful permanent resident.  
• If the person has already been convicted of another CIMT, a conviction for this second CIMT offense will subject the person to detention and possible deportation. A conviction for two or more crimes of moral turpitude renders a lawful permanent resident both inadmissible to, and deportable from, the United States. 
• It is also important to remember that a conviction for any felony disqualifies a TPS or DACA beneficiary from their protected status and can result in their deportation-removal. [1]
• A conviction for any felony CIMT disqualifies an undocumented individual from eligibility for cancellation of removal for non-permanent residents. 
  • This is the primary, humanitarian, form of relief from deportation afforded to undocumented individuals who have lived in the U.S. for an extended period of time.
  • To qualify for this form of relief, the person must, inter alia, have lived in the U.S. continuously for a period of at least 10 years prior to being placed into deportation-removal proceedings, and the person cannot have been convicted of a disqualifying criminal offense. A conviction for VTL § 511.3(a)(i) is such a disqualifying offense.

What does this mean for the defense counsel’s proceedings?

As with any proposed disposition, defense counsel must first determine their non-citizen client’s legal status before being able to ascertain and advise him whether a given conviction carries adverse immigration consequences. 

When facing a charge of VTL §511.3(a)(i), in certain cases, it may be possible to have that charge dismissed in satisfaction of a plea to the underlying, felony, DWI charge, or pleas to the felony DWI charge and a reduced  VTL §511.1.  If your client is already a lawful permanent resident, you should also ascertain whether he qualifies cancellation of removal for lawful permanent residents, which is the primary form of discretionary relief from deportation-removal available to lawful permanent residents.  

For a client who is undocumented, and who otherwise meets the requirements for non-permanent resident cancellation of removal, defense counsel must ensure the client understands that pleading guilty to VTL §511.3(a)(i) will disqualify him or her from that form of relief. 

The client must understand what is at stake: a grant of cancellation of removal not only spares the client deportation, but also results in his being granted status as a lawful permanent resident of the United States. A conviction for violating VTL §511.3(a)(i), however, renders the client ineligible for this critical form of relief from deportation. The client needs to understand what is at stake before he or she can make an intelligent decision as to whether it is worth the expense, the time and the risk of going to trial, rather than pleading guilty to violating VTL § 511.3(a)(i). 

For a client who faces separation from home and family, the immigration consequences of a given conviction are often more important than the conviction itself, or even the sentence imposed. Ultimately, pursuant to Padilla v. Kentucky, it is our responsibility to ensure that our client’s decision is an informed one.

Given what is at stake, defense counsel is advised to provide his client with a clearly written assessment of these consequences, well in advance of the client deciding whether to  plead guilty or go to trial. 

Memories fade, and a former client’s recollections may differ from your own. The reality of deportation proceedings can sometimes prompt desperate action. A written assessment, saved in your client’s file,  may resolve the issue if there is ever a claim of ineffective assistance of counsel, based upon an alleged failure to advise your client of the adverse immigration consequences of a given conviction.

[1] There are rules which provide that convictions for certain misdemeanors and non-criminal violations — which can be treated as misdemeanors under Federal law —  may also result in disqualification from, and loss of,  TPS and DACA, and so result in deportation. A conviction for either driving impaired or intoxicated results in ineligibility for, and loss of, DACA status.