Alcohol-Related Arrests Create Immigration Problems28 Dec 2022
The holiday season provides many with opportunities to have a good time, and a few drinks, with friends. Those who choose to do so should arrange for a designated driver or other safe, sober transportation home. Alcohol-related arrests, not to mention serious accidents, are all too common following New Year’s and other holiday celebrations. In addition to the extremely important safety concerns, those who behave irresponsibly while intoxicated may find themselves facing criminal charges, which, for foreign nationals, are accompanied by immigration complications.
Arrests Pose Additional Troubles for Foreign Nationals
For most people, an arrest or citation for even a fairly minor criminal violation would be unnerving and intimidating. Foreign nationals facing criminal charges have additional hurdles to consider, as certain types of criminal convictions can make an individual ineligible to receive key immigration benefits. In fact, a foreign national convicted of a crime involving moral turpitude (CIMT) potentially may become inadmissible to the United States and may be subject to removal (i.e. deportation).
There are considerable variations among the justice systems adopted by different countries. What may be considered a minor violation in one’s home country may have significant implications, both criminal and civil, in the United States. Further, a case outcome that may be relatively good for a U.S. citizen may not be beneficial for a foreign national. Therefore, in the event of an arrest or charge, the starting point is to get advice, from both an immigration and criminal law perspective.
Alcohol-Related Driving Offenses Vary Among States
Every state in the United States has laws prohibiting driving while under the influence of alcohol. States tend to refer to the offense/s as driving while intoxicated (DWI) or driving under the influence (DUI). While most state statutes are similar, there are some variations among the different state laws.
Aggravating Factors on DUI May Result in Serious Immigration Consequences
A simple DUI without any aggravating circumstances typically would not be regarded as a CIMT. However, some states have passed laws that elevate a DUI to a more serious crime when certain other “aggravating factors” are present. Foreign nationals charged with these types of offenses can run into serious immigration troubles. For instance, an Arizona statute converts a simple driving while intoxicated charge to an aggravated DUI if the person is found to also be knowingly driving without a valid license. In one case involving a foreign national charged with this offense, the courts found that this aggravating factor escalated the crime to a CIMT, making violators potentially inadmissible to and removable from the United States.
Other Alcohol-Related Arrests
Even those who do not drink and drive can land in trouble after a few too many drinks. One common scenario is the alcohol-fueled bar fight. These incidents often lead to everyone involved being rounded up and charged with assault and related charges. Alcohol impairs judgment and, for some, amusement turns to criminal charges such as vandalism and destruction of property. Most locations have prohibitions against carrying open containers of alcohol in public. And, while a charge of public urination will not normally make one deportable or inadmissible, it will have to be revealed and explained at numerous immigration junctures. Furthermore, such an offense may be charged as the crime of indecent exposure and have more serious consequences. Thus, it is important to remain sober enough to know how to walk away from trouble and make reasonable decisions.
“Prudential Revocation” of Visa Following Drunk Driving Arrest
The U.S. Department of State (DOS) implemented a policy in November 2015 to revoke the nonimmigrant visa foil (commonly referred to as a visa “stamp”) issued to any individual arrested for or convicted of driving under the influence (DUI), driving while intoxicated (DWI), or a similar alcohol-related crime. An individual in nonimmigrant status whose visa has been prudentially revoked will have to obtain a new visa in order to be readmitted to the United States following an overseas trip. In order for the visa to be issued, the foreign national likely first will need to be cleared by a panel physician following a medical screening.
Note that the prudential revocation of a visa stamp by the DOS should not disrupt the individual’s legal status in the United States. Rather, this should solely result in the inability to use the particular visa for reentry to the U.S. after foreign travel. More details on prudential visa revocations is available in the MurthyDotCom NewsBrief, Nonimmigrant Visa Revocation Update for Those with DUI (24.Oct.2016).
Visa Application More Complicated Following Alcohol-Related Arrest
As alluded to above, the visa application process usually becomes more cumbersome when the foreign national applicant has any type of alcohol-related arrest. In fact, it can even lead to foreign nationals being deemed medically inadmissible to the United States. A foreign national who applies for a visa “stamping” at a U.S. consulate within five years of a single alcohol-related arrest or conviction, or who has two or more such arrests or convictions within the last ten years, must be referred to a panel physician for a physical and mental evaluation. The panel physician then will determine if the applicant is ineligible to receive a visa based upon having a mental disorder or behavior associated with that disorder posing “a threat to the property, safety, or welfare of the alien or others.” This does not mean a single DUI or public intoxication arrest automatically will prevent one from being issued a visa. But, at the very least, it means the individual will face a lengthier application process, plus the inconvenience of the doctor visit.
Multiple DUIs May Make One Ineligible for Naturalization
An applicant for naturalization must establish that s/he is a person of good moral character (GMC) during the statutory period, which is five years for most applicants, or three years for cases based on marriage to a U.S. citizen. If a naturalization applicant has two or more DUI convictions during the statutory period, there is a rebuttable presumption that the applicant lacks the required GMC. Further, the USCIS is permitted to review actions that occurred prior to the statutory period in order to determine whether the overall pattern of behavior suggests an alcohol problem.
Conclusion: Nothing Minor About a DUI
One should never assume that a DUI arrest or charge is not going to cause any problems related to the immigration process. At a minimum, it is likely to lead to delays in the process. In addition to speaking with a criminal attorney, it becomes important to consult with a lawyer experienced in immigration law immediately after an arrest or citation in order to devise the best strategy to minimize immigration consequences. Of course, the best prevention is to be aware of the seriousness of driving while under the influence and avoid getting behind the wheel when one is not completely sober.
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