When is a DUI 'Particularly Serious?' - Alicia Triche

"Under Section 241(b)(3) of the U.S. Immigration and Nationality Act [INA], a refugee cannot be removed to a country where there is a “clear probability” persecution will occur.  However, this relief, called “withholding of removal,” is pretermitted where “the alien, having been convicted by a final judgment of a particularly serious crime, is a danger to the community of the United States.”  The exception is modeled upon Article 33(2) of the United Nations Refugee Convention, which denies the protection of nonrefoulement to refugees who constitute either a danger to national security or a danger to the community of the host country.  Whether the latter can be evidenced by a conviction for driving under the influence — especially a “non-aggravated” DU I— remains an open question.  Under the INA, the only per se “particularly serious crimes” (PSCs) are aggravated felonies with sentences of five years or more.  And in 2004, the U.S. Supreme Court unanimously held that Florida driving under the influence (DUI) with “serious bodily injury” did not constitute an aggravated felony.  The Board of Immigration Appeals has not issued a published decision regarding DUI as a particularly serious crime, and save for a few cases in the Ninth, there is little guidance at the circuit court level.  That being said, the board has issued significant guidance regarding the general criteria for a PSC analysis." - Alicia Triche, Ph.D., June 2015, The Federal Lawyer.