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Why can someone who got arrested for a DWI get their “papers” and someone else who has never been arrested not get their “papers”?

Writer's picture: zavalalegalzavalalegal

Updated: Jul 18, 2024

There are several common misconceptions about immigration law, particularly, where many believe that immigration law treats drunk drivers and other alleged criminals more favorable than other immigrants who work hard, pay their taxes, and have never been arrested.


Although, it may appear that someone who gets arrested for allegedly committing a crime receives more favorable treatment, this in fact is not true.  On the contrary, immigration law treats law-breakers much more harshly than those who have never been arrested for or convicted of a crime.  Committing a crime in the U.S. could result in deportation and/or ineligibility for any immigration benefits indefinitely.


Less serious crimes such as driving while intoxicated (DWI) in which there wasn’t an accident or injury, typically would not trigger deportation or any kind of permanent ineligibility for an immigration benefit.


Where many get the wrong impression about those who get arrested get treated better than those who don't get arrested, is when someone has been in the U.S. without lawful status for more than one year on/after April 1, 1997 and then again enters the U.S. illegally within 10 years of leaving the U.S.


Thus, regardless of whether you have been arrested or not, if you have been in the U.S. without legal status for more than one year, leave the U.S. for any reason and then try to enter or do enter the U.S. illegally again within 10 years of leaving the U.S., then you may trigger the 10 year permanent bar, which will make you ineligible to get your “papers” until you have left the U.S. for 10 years.  Since this ground of inadmissibility (“castigo”) is not tied to or based on arrests or criminal history, it applies to everyone, even those who are hard working taxpayers with U.S. citizen family members.


This is how someone who gets arrested could get their papers, while someone who doesn’t get arrested can’t get their papers, and it is simply because the person who got arrested for a DWI did not trigger the 10 year permanent bar, whereas the hard working taxpayer who didn't get arrested did trigger the 10 year permanent bar.  It doesn’t matter why someone leaves the U.S., even if it was for a family emergency, funeral, catastrophic event or because an immigration officer said you could get your papers if you leave.  Unfortunately, it doesn’t matter the reason, all that matters is that you left after being in the U.S. without legal status for more than one year and reentered the U.S. illegally.


This is why it is very important to speak to an immigration attorney or accredited representative to help you understand how leaving the U.S. could affect your eligibility to qualify for an immigration benefit or otherwise not be in yours or your family's best interests.

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