One of the most sacred principles of the U.S. criminal justice system holds that defendants are presumed innocent until proven guilty. This principle is not necessarily true under U.S. immigration law. A non-citizen who is simply charged with an offense, but not convicted, may well experience that difference in treatment under U.S. criminal law and U.S. immigration law. Additionally, the definition of a “conviction” under immigration law differs from the definition of a conviction under criminal law. A driving under the influence (DUI) type criminal charge can have severe consequences for non-immigrant visa holders. Even U.S. lawful permanent residents could lose their status or become temporarily ineligible for U.S. Citizenship, if they are charged with or convicted of certain DUI-type offenses.
DUI Offenses as Grounds of Removability or Inadmissibility
Not all DUI offenses are created equal according to U.S. immigration law. The U.S. government has deemed certain DUI offenses to be so egregious that a conviction would bar an individual from obtaining immigration benefits or from keeping his or her immigration status. A “simple” DUI charge is generally not considered to be such an offense and therefore should not constitute an inadmissibility or removability ground. However, more serious DUI charges, such as DUI with knowledge that the individual’s license is suspended, DUI with serious bodily injury, and other aggravated offenses involving drunk driving could be problematic. Every statute is different and it is important for the particular federal, state or local statute to be carefully analyzed in order to determine if a conviction would trigger immigration consequences. Further, the definition of conviction under immigration law includes certain criminal dispositions that do not constitute convictions under criminal law. Sometimes, even admissions to the commission of certain offenses, without a conviction, may result in removability/deportability. Therefore, non-citizens should consult with immigration experts, even if they already have criminal counsel working on resolving the criminal charges.
Visa Revocations Due to DUI Charges
A drunk driving charge, alone, without a conviction, could cause the government to revoke a foreign national’s non-immigrant visa. Indeed, the U.S. Department of State (“DOS”), the agency which oversees all U.S. consulate abroad, has recently ramped up enforcement of this policy as it regularly revokes non-immigrant visas whenever it receives notification that the visa holder has been charged with DUI, even when the foreign national is still in the U.S. and even if a conviction has not yet occurred. DOS typically receives such information from state and federal law enforcement agencies, sometimes days after the arrest or charge.
A visa revocation puts the affected foreign national in a very difficult position. The visa stamp only serves as permission to travel to the U.S., but it does not govern an individual’s immigration status, if the individual is already in the U.S. In that respect, the visa stamp is similar to a boarding pass as it allows individuals to travel to the U.S. Once in the U.S., the visa stamp is irrelevant to the individual’s status, which is governed by their Form I-94 issued by the U.S. Department of Homeland Security (DHS) – a different immigration agency from DOS. DOS has explained that it takes DUI very seriously, rightfully so, and that the visa revocation policy (referred to as “prudential revocation”) helps it to identify dangers to public safety. Unfortunately, this policy is being enforced even when somebody has not yet been convicted and plans to assert his or her innocence.
Whether or not an individual must depart the U.S. upon notice of his or her visa revocation has been the subject of controversy. During an October 2016 meeting with the American Immigration Lawyers Association (“AILA”), DOS stated that “[f]or individuals in the United States, revocations based on DUI arrests are effective immediately upon the alien’s departure from the United States.” Yet, immigration practitioners have reported examples in which U.S. Citizenship and Immigration Services (“USCIS”) denied immigration benefits, such as extensions of status or OPT, for students whose visas had been prudentially revoked following a DUI arrest. Such denials seemed to be based on a section in the immigration statute, which makes foreign nationals deportable/removable, if their visas are revoked. In light of the statement from DOS about the effective date of revocations, the above statutory section triggering deportability/removability should not apply to individuals whose visas are revoked while they are in the U.S., as the revocation is not effective until after such individuals depart from the U.S. Therefore, a visa revocation should not be an impediment to a change of status, extension of stay or adjustment of status in the U.S., unless other grounds of removability or violations of status are present, or unless the individual is applying for certain humanitarian benefits, such as Temporary Protected Status (TPS) or Deferred Action for Childhood Arrivals (DACA).
Stuck Abroad Following a DUI Charge: Now What?
When a non-immigrant visa holder travels outside of the U.S. following a visa revocation, he or she must go to a U.S. consulate abroad and apply for a new visa stamp in order to return to the U.S. If the criminal case has not yet been resolved, the individual would likely be unable to renew his or her visa, as the U.S. consulate would require the disposition paperwork. Sometimes, individuals are not aware of the visa revocation and they travel abroad before the conclusion of the criminal proceedings, not knowing that they would be unable to return using the visa. Such individuals may be able to obtain parole into the U.S. for the very limited purpose of attending their criminal hearings.
Once the criminal case is complete, the individual would have to undergo a medical examination before being able to obtain a new visa stamp. This is because DOS has a policy of referring individuals with one DUI conviction within the past five years preceding the visa application, or two or more DUI convictions within the 10 years preceding the application to a government-certified physician (“panel physician”). The panel physician would conduct a medical examination to determine if the individual has a mental disorder (e.g. substance abuse) that poses a threat to the property, safety or welfare of that individual or of others. Such a determination could result in a bar from returning to the U.S. until the substance abuse or disorder has been treated.
Immigrant visa applicants, too, may be required to undergo additional scrutiny due to DUI convictions and may even become temporarily ineligible to immigrate if the panel physician determines that a substance abuse problem poses a threat to property, safety or welfare.
DUI Convictions and Naturalization
Lawful permanent residents wishing to apply for U.S. citizenship should also be concerned about DUI arrests or convictions. In order to be eligible for U.S. citizenship, lawful permanent residents have to show, among other things, that they have maintained a “good moral character” (GMC) during the relevant period preceding the filing of the application, generally either a three- or five-year period. Certain unlawful acts committed within the requisite period may preclude an individual from establishing GMC. For example, certain types of criminal convictions or charges. Generally, one “simple” DUI conviction without any aggravating factors should not preclude an individual from establishing GMC. However, it may be considered in a totality with other factors – for example, excessive number of traffic citations, failure to pay taxes, failure to support dependents, or other factors, leading to a determination that an individual has failed to establish GMC during the relevant period of time. If an individual fails to establish GMC, USCIS will deny the application for U.S. citizenship and the individual would be able to reapply at a later time – perhaps, when the unlawful acts are no longer within the three- or five-year period.
Drunk driving offenses can have significant adverse consequences for non-citizens. Therefore, non-citizens who have been charged with such offenses should immediately contact immigration counsel in order to ensure that the charge(s) or any resulting conviction(s) would not adversely affect their immigration status and future eligibility for immigration benefits.