Skip to main content

DUI + children on board = deportation

A Hawaii State Senator of Ilocano ancestry was driving too slowly (30 mph) on the H-1 freeway a few years ago. Police pulled him over on suspicion of drunken driving. His excuse was that he had poor eyesight. His two minor sons were with him. He was reported to have claimed that he had brought them to a social function and that he had at most two glasses of wine. He agreed to blow into a device to measure his blood alcohol content. He refused additional sobriety tests saying he was wearing ill-fitting contact lenses and had a fractured foot. 

He had a shot (pardon the pun) at beating the DUI charge since breathalyzer tests (showing it was above the legal limit of 0.08) are not generally reliable and there was no other evidence of his blood alcohol level. As a lawyer, he knew or ought to have known that. But what did he do?  He pleaded no contest and was convicted, spent two nights in jail, paid a fine of US$800, had his license revoked for 90 days, and ordered to attend alcohol treatment class.  He was shown on television clad in prison garb. Nakakahiya.  He lost his reelection bid. He ran for Honolulu City Council in a different district—a Filipino bailiwick. He won. We wrote an article “There is Life after DUI.” 

If the politician had been an immigrant he would have been deported for child abuse by endangering the welfare of a child. Recently, a Honduran immigrant was charged in New York with a variety of offenses, including endangering the welfare of a child, in violation of New York Penal Law, for knowingly acting in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old. He was driving under the influence of alcohol while his two children aged one and nine, were in the car.

Child abuse, child neglect, or child abandonment are deportable offenses
The Department of Homeland Security commenced removal proceedings against the Honduran under § 237(a)(2)(E)(i) of the Immigration and Nationality Act [8 USC § 1227(a)(2)(E)(i)] which provides that any alien who at any time after entry is convicted of a crime of “child abuse, child neglect, or child abandonment is deportable.”

The Immigration Judge ordered him deported, holding that his conviction for child-endangerment satisfied the generic federal definition of a “crime of child abuse”.

The BIA affirmed. The Court of Appeals denied a petition for review. The Court rejected the claim that the BIA’s interpretation of the phrase “crime of child abuse,” as including child-endangerment crimes for which injury to a child is not a required element, is so broad as to be unreasonable and not entitled to Chevron deference. (Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). The Court found that the BIA’s broad interpretation of the phrase “crime of child abuse” was reasonable. The Court observed that many states have crimes called “child abuse” where injury is not a required element.

In determining whether a state conviction qualifies as a removable offense, the court employs a “categorical approach” to determine whether the state offense is comparable to an offense listed in the INA. Under the categorical approach, the court looks not at the facts of the case but whether the state statute defining the crime of conviction categorically fits within the generic definition in the INA.

The New York Penal Law can be violated (1) by taking action that is “likely to be injurious” to a child, whether or not harm ensues; or (2) by allowing a child to work in a dangerous occupation. The Honduran’s conviction was under the first prong “likely to be injurious”.  Florez v. Holder, No. 14-874, 03/04/2015, CA2.

QUERY: Is not the minor children’s forcible separation from their father “likely to be injurious” to the children?

RECOMMENDATION. Better become a citizen if you have a propensity to drink and drive, especially if you have children with you. You might even become a Hawaii legislator.


(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 900 Fort Street, Suite 1110, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)

Comments

Popular posts from this blog

Empanada festival: A celebration of good taste and good life

By Dominic B. dela Cruz & Leilanie G. Adriano Staff reporters BATAC CITY—If there is one thing Batac is truly proud of, it would be its famous empanada-making business that has nurtured its people over the years. Embracing a century-old culture and culinary tradition, Batac’s empanada claims to be the best and tastiest in the country with its distinctive Ilokano taste courtesy of its local ingredients: fresh grated papaya, mongo, chopped longganisa, and egg. The crispy orange wrapper and is made of rice flour that is deep-fried. The celebration of this city’s famous traditional fast food attracting locals and tourists elsewhere comes with the City Charter Day of Batac every 23 rd  of June. Every year, the City Government of Batac led by Mayor Jeffrey Jubal Nalupta commemorate the city’s charter day celebration to further promote its famous One-Town, One Product, the Batac empanada. Empanada City The Batac empanada festival has already become...

Free dormitories eyed for Nueva Era students in LC, Batac

 Nueva Era mayor Aldrin Garvida By Dominic B. dela Cruz ( Staff Reporter) Nueva Era , Ilocos Norte—The municipal government here, headed by Nueva Era mayor Aldrin Garvida is planning to establish dormitories in the cities of Laoag and Batac that will exclusively cater to college students from the said cities. “Sapay la kuma ta maituloyen iti mabiit tay ar-arapaapen tayo ken iti munisipyo a maipatakderan kuma dagiti annak tayo a college students nga agbasbasa idiay siyudad iti Batac ken Laoag iti libre a dormitoryo a bukod da ngem inggana nga awan pay ket an-anusan mi paylaeng nga ibaklay kenni apo bise mayor iti pagbayad da iti kasera aggapu iti bukod mi a suweldo malaksid dagitay it-ited iti munisipyo ken iti barangay nga stipend da kada semester, ” Garvida said.    Garvida added that the proposed establishment of dormitories would be a big help to the students’ parents as this would shoulder the expenses of their children for rent and likewise they would feel...

P29 per kilo rice sold to vulnerable groups in Ilocos region

BBM RICE. Residents buy rice for only PHP29 per kilo at the NIA compound in San Nicolas town, Ilocos Norte province on Sept. 13, 2024. The activity was under a nationwide pilot program of the government to sell quality and affordable rice initially to the vulnerable sectors. (Lei Adriano) San Nicolas , Ilocos Norte —Senior citizens, persons with disability, and solo parents availed of cheap rice sold at PHP29 per kilogram during the grand launching of the Bagong Bayaning Magsasaka (BBM) Rice held at the National Irrigation Administration compound in San Nicolas, Ilocos Norte province on Sept. 13, 2024. “ Maraming salamat Pangulong Ferdinand R. Marcos Jr. sa inyong pagmamahal sa Region 1 lalong-lalo na sa bayan namin sa San Nicolas,” said Violeta Pasion, a resident Brgy.   18 Bingao in this town. The low-priced grains were sourced from the National Irrigation Administration’s (NIA) contract farming with irrigators' association members in the province. Along with Pasion, Epi...