The DREAM Act is still a dream, to bypass immigration law penalties against those who came to the United States as children. Praised be the Obama Administration for having directed the use of prosecutorial discretion (see the June 15, 2012, Homeland Security Department directive, with the U.S. Citizenship and Immigration Services’ further interpretation here) to avert adverse immigration consequences against qualifying undocumented people who came here as children. For lack of a better phrase, I will call this Obama Administration directive the DREAM Order. This being but an Executive branch directive, we do not know whether the next president will continue with the DREAM Order.

Recently, a DREAM Order-eligible client hired me for a Virginia drunk driving charge that looked like an uphill battle to win after reviewing the discovery in the case on top of additional investigation. To boot, he also was charged with refusing the breath test, which usually helps in fighting for acquittal on the drunk driving charge, but also means one year of no driving if convicted for refusal, on top of an additional year of no driving for any drunk driving conviction, with eligibility for restricted driving for the DWI conviction but not for the refusal conviction. 

Unfortunately for my client, a DWI conviction would have spelled an extinction of my client’s eligibility for DREAM Order relief. To try to keep his DREAM Order eligibility, we had our work cut out for us, including:

– Fully preparing the case for a win, as always.

– Having my client enter alcohol education, attend Alcoholics Anonymous meetings, do a driver improvement class, and do community service.

– Obtaining an opinion letter from a qualified immigration lawyer showing that my client was eligible for the DREAM Order, and why a DWI conviction or active jail sentence over 90 days would extinguish my client’s DREAM Order eligibility.

Prosecutors often tell me that they are not going to favor a non-United States citizen any more than a citizen in negotiations. I can point out in response that it is best to look at the overall costs and benefits to a defendant in negotiating, rather than to give cookie-cutter settlement offers. Here, better than taking the common offer of pleading guilty to DWI to drop the refusal (refusal carries one year of no driving at all) was the negotiated result we accomplished, which was pleading guilty to refusal and an amended charge (from DWI) of reckless driving, doing substantial community service, serving some agreed jail time, and paying a higher thanusual fine.

I hesitated at first about writing about this DREAM Order-friendly negotiation, lest this prosecutor’s office shut the door on obtaining future such negotiations. However, I want my above-described experience to inspire colleagues to seek negotiation benefits for their non-citizen clients that might not otherwise be possible without laying the client’s immigration cards on the table (beware prosecutors and cops who might then refer the defendant to the immigration authorities), I have not identified the involved prosecutor’s office, and perhaps a limited number of DREAM Order-eligible criminal defendants get arrested for matters that could extinguish their DREAM Order eligibility.

Now a word to non-U.S. citizens; those with security clearances, with military careers, and receiving federal financial aid; and all others who might be harmed collaterally from criminal convictions: I repeatedly see the risk-taking by those who face dire collateral consequences (beyond direct consequences) from criminal lawbreaking behavior and placing themselves in target range of being charged with a crime they did not commit (which is a risk, for instance, when giving a ride to someone transporting contraband). What will it take for you to be more careful about risking such collateral damage? Of course, if you get arrested, it is time to fully defend yourself, which applies similarly to all criminal defendants.