In my last two posts, I wrote about separate decisions that were recently issued by the attorney general (AG) under his so-called "certification authority": one having to do with the effect of convictions for driving under the influence (DUI) on 42B cancellation and the other on the effect of sentence modifications for criminal aliens facing removal. In an NBC News article this week, immigration advocates were critical of those decisions, which were clearly intended to protect public safety.
That NBC article is captioned "AG Barr issues 2 decisions limiting ways immigrants can fight deportation[;] The decisions make it harder for people with old, low-level criminal convictions or multiple drinking and driving offenses to fight deportation", and the headline captures the tenor of the piece. It begins: "Attorney General William Barr issued two decisions limiting immigrants' options to fight deportation late Friday, furthering the Trump administration's immigration crackdown."
That article addressed each issue individually, and the AG's actions as a whole. With respect to the latter, NBC News asserted:
Advocates worry these decisions could push more immigrants into the deportation system while giving them fewer avenues to fight to stay.
"Hundreds of thousands of immigrants throughout the United States are going to be impacted by these decisions," said Rose Cahn, a senior attorney with the Immigrant Legal Resource Center, who works with immigration advocates around the country. "This is one tactic out of many that we are seeing the federal government use to make life for immigrants as unpleasant as possible."
How pleasant do the American people want to make the lives of serial drunk drivers? Matter of Castillo-Perez involved an alien here illegally with two DUI convictions, as well as two arrests for assault and battery on his wife, one charge of public drunkenness, and a conviction for negligent driving. In his decision, the AG stated: "The respondent admitted in the immigration court that his excessive consumption of alcohol was a major factor in each of these episodes."
He aptly noted:
This country has spoken clearly on the morality of DUI. All 50 States have criminalized it, Birchfield v. North Dakota, 136 S. Ct. 2160, 2166 (2016), reflecting a national consensus that drunk and other forms of impaired driving are unacceptable conduct that imposes intolerable harms on society, see id. ("Drunk drivers take a grisly toll on the Nation's roads, claiming thousands of lives, injuring many more victims, and inflicting billions of dollars in property damage every year."); Mitchell v. Wisconsin, 139 S. Ct. 2525, 2531 (2019) (plurality opinion) (noting "the country's efforts over the years to address the terrible problem of drunk driving"); Ledezma-Cosino v. Sessions, 857 F.3d 1042, 1047 (9th Cir. 2017) (en banc) ("Driving under the influence is, self-evidently, a public harm."). Multiple DUI convictions represent a repeated failure to meet the community's moral standards, rather than a "single lapse" that would be less probative of moral character.
Even setting good moral character aside, an alien with multiple DUI convictions would likely be denied cancellation of removal as a purely discretionary matter. ... Multiple DUI convictions are a serious blemish on a person's record and reflect disregard for the safety of others and for the law.
Would anyone seriously dispute any of these points? You would be surprised.
But first, I must note that (interestingly) the attitudes of the public (if not certain immigration advocates) toward drunk driving have shifted significantly in my own lifetime. When I was in my teens, under the laws of my home state of Maryland, a blood alcohol concentration of less than .08 gave rise to no presumption that a driver was under the influence of alcohol, and only a BAC of .013 was prima facie evidence that a driver was intoxicated. To put this into perspective, I weigh 175 pounds. If I drank four Miller Lites (which are 4.2 percent alcohol by volume) per hour, my BAC would only be .0714, according to the Cleveland Clinic. In fact, seven Yuengling Lights (3.8 percent alcohol by volume) would still not get me to .013 BAC. That's a lot of drinking, but a lot has changed in the intervening years: The legal limit in the Free State is now a BAC of .08 or above, and if you test positive for that amount of alcohol, the officer will seize your license on the spot and you will face a $1,000 fine and up to a year in jail.
Nor is Maryland the outlier. As the National Institutes of Health have noted:
In 1983, Oregon and Utah lowered their BAC from 0.1 to 0.08. In a report to Congress in 1991, the [National Highway Traffic Safety Administration (NHTSA)] proposed lowering the BAC to 0.08, and the law limiting BAC was passed by Congress in the same year. In 1998, Congress established the National Mobile Incentive Grant Scheme to strictly enforce the BAC. In 2000, Congress encouraged states to implement BAC restrictions, stipulating that the states that failed to lower their BAC to 0.08 would lose a portion of their federal highway construction funding. By 2004, all states enacted a BAC limit of 0.08.
Plainly, the NHTSA had a lot to do with the change, as did the rise of Mothers Against Drunk Drivers (MADD), which began in 1980. In my recollection, however, NBC itself, almost four decades ago, played a major role in the movement against drunk driving, as well.
The network had a popular series that ran from 1976 to 1983 called "Quincy, M.E.", about a medical examiner who solves crimes in Los Angeles — sort of an ur-CSI. In a December 1981 episode, ("D.U.I."), as IMDB puts it: "Quincy gets involved in an anti[-]drunk driving campaign after a tough case involving a pedestrian being killed by a prominent lawyer-with a surprising twist." I don't want to ruin the "surprising twist" for you, but the episode underscored how easy it was to get away with murder if you just downed a few shots first and ran over your target in a crosswalk. The episode truly brought the issue of drunk driving into the mainstream.
Back to the article. NBC News reported:
Immigration attorneys expressed outrage at how many people would be barred from using those processes under the new decision.
"The attorney general makes no clear distinction between a misdemeanor or felony DUI, or between a recent DUI or one that took place several years ago," said Raha Jorjani, director of the immigration representation unit of the Alameda County public defender's office. "This decision will separate more families." [Emphasis added.]
"Outrage?" Really? With due respect, it is not the decision of the AG that "will separate more families", but rather the decision of the alien respondents to get drunk and drive to begin with. The position of Jorjani is balanced in that article with a quote from my colleague, Dan Cadman:
"This sounds more like an application of common sense than a dastardly attempt to do an end-run on aliens' due process rights," Cadman said. "The public needs to keep firmly in mind that these two certifications involve aliens convicted of serious crimes who were seeking to evade removal from the United States."
I agree, wholeheartedly. There is no doubt that Matter of Castillo-Perez will have a significant impact, and I would argue a positive one, by removing aliens with serial DUI convictions.
According to the Pew Research Center, "Among ICE arrestees in 2017 with prior convictions, the most common criminal conviction category was driving under the influence of alcohol (59,985 convictions, or 16% of the total)." For those arrestees with pending criminal charges, DUI was the second most common offense, accounting for 20,562 (14 percent) of all ICE detentions.
Unless all of those aliens had exceptionally bad luck, this was not the first time they were impaired behind the wheel. MADD reports that the "average drunk driver has driven drunk over 80 times before" his or her first arrest, and that "[a]bout one-third of all drivers arrested or convicted of drunk driving are repeat offenders." Removal of those convicted of and arrested for DUI prevents those repeat offenses, regardless of whether the aliens in question are committing "misdemeanor or felony DUI", and regardless of whether they were caught committing that crime in the past.
Pew's statistics also reflect that (contrary to popular opinion in the press, and especially the National Broadcasting Corporation) ICE under the Trump administration is primarily focusing on criminal aliens in the removal process. In fact, Pew headlined the piece referenced above, "Most immigrants arrested by ICE have prior criminal convictions, a big change from 2009."
This trend continues. In the second quarter of FY 2019 (the latest for which statistics are available), of the 19,856 removals by ICE Enforcement Removal Operations, 10,961 were aliens with criminal convictions and 2,078 had pending criminal charges. That means that 55 percent of all aliens removed between January and April 2019 had been convicted of crimes, and an additional 10 percent had been arrested for criminal activity. Compare that to FY 2009, when 61 percent of those arrested by ICE had no criminal convictions, according to Pew.
That only 35 percent of aliens who were removed had no criminal record indicates that ICE has a long way to go before it even makes a dent in the undocumented population in the United States, but it is seemingly overlooked by critics of the president's immigration policies.
I will discuss the second part of that article in my next post.