Legal Question in Immigration Law in Virginia

Re: DUI and immigration

Correction: Paragraph 2, beginning with line three should read 10 years rather than "3" which is an error.

Re: DUI and immigration

Further correction: Last line of answer should also read 10 years rather than "three" which is also an error.

Re: DUI and immigration

I believe that your boyfriend is not likely to be deported after his release

from the Virginia penitentiary where he's now doing his time---even if an ICE detainer is lodged against him---for the following reason:

The Virginia statute (Sec. 18.2-270 C.1,apparently,under which he was convicted as a three time DUI offender within a period of 3 years has no element of intent which must be proven for a conviction, which was also the issue in Leocal v. Ashcroft, a Florida case in which the U.S. Supreme Court decided that even where the defendant had been convicted of a DUI in connection with a homicide, that such a conviction could not be considered as a so-called aggravated felony for purposes of meeting USCIS's definition of that term since no proof of criminal intent on the part of the defendant was offered by the prosecutor or required to be shown on the part of the defendant under the Florida statute of which he was convicted. Consequently, the adverse rulings againt defendant Leocal, a grren card holder, were reversed in this case decided by the U.S. Supreme Court in 2004. See 543 U.S. 1 (2004)and he was not deported from the United States.

The Virginia statute, as noted above, under which your boyfriend was apparently convicted is similar to the afore-described Florida law and, consequently, I conclude that your boyfriend is not likely to be found deportable based upon his Class 6 felony conviction for three DUI convictions in the Commonwealth within a three year period.