Drunk driving, driving while intoxicated (DWI), and driving under the influence (DUI) of alcohol are responsible for thousands of deaths every year in the United States, and are considered to be serious threats to public health and safety. It is therefore not surprising that the US Government has passed laws designed to deter and punish those who operate motor vehicles under the influence of alcohol. Immigration law is no exception. Foreign nationals who have been arrested for or convicted of offenses related to drunk driving, DWIs, or DUIs (whether in the United States or abroad) can expect substantial delays in the processing of their visas and at ports of entry, as well as in their efforts to procure a Green Card here in the US. They also face barriers to citizenship, and depending on their status, removal (deportation) from the US. We here address some of the most common questions that arise in this context.
I have a DUI conviction and wish to come to the United States on a temporary visa. Will this conviction bar me from entering the US?
Possibly. Under US immigration law, a foreign national can be found “inadmissible” for a number of reasons. Among these is having committed or been convicted of a “crime involving moral turpitude.” Under settled law (i.e., a firmly established and undisputed law or court decision), a simple DUI conviction does not constitute a crime involving moral turpitude; however, a DUI conviction that involves aggravating factors, such as knowingly driving with a suspended license or a DUI while children are in the vehicle, or a DUI that results in death or injury of another, may be found to involve moral turpitude and therefore bar admission to the United States.
A DUI conviction, even without aggravating factors, may raise questions about another ground of inadmissibility, which bars foreign nationals determined by the Secretary of Health and Human Services (HHS) to have a mental disorder and associated behavior that may pose or has posed a threat to the property, safety, or welfare of the person or others. The HHS has declared that alcohol abuse or dependence that results in alcohol-impaired driving may form the basis of such a determination. If the foreign national’s conviction was within the last five years, or if the foreign national has two or more convictions within the last ten years, the foreign national will be directed to see a panel physician designated by the US Embassy or Consulate issuing the visa. The panel physician is required to determine whether the foreign national has “any physical or mental disorder (including alcohol-related disorders)” with associated harmful behavior, the remission status of any previously diagnosed disorder, and assess the likelihood that any associated harmful behavior would recur in the future. The panel physician’s report is sent to the US Embassy or Consulate for a final decision on the foreign national’s visa eligibility. In some instances, foreign nationals may be sent to a specialist for a more detailed evaluation.
I was arrested and charged with a DUI, but I was not convicted. Can I be barred from entering the US?
Under current State Department policy, alcohol-related arrests that do not result in convictions can trigger the additional screening of a panel physician, if there was a single such arrest that occurred within the last five years or two or more such arrests within the last ten years. Furthermore, a panel physician’s evaluation may be required even in the absence of the arrest, if there is “any other evidence to suggest an alcohol problem.” The mere fact, however, of an arrest without a conviction, in the absence of any additional evidence suggesting an alcohol problem, is unlikely to result in a bar to entering the US.
What if I am applying for an immigrant visa (Green Card) through the Embassy or Consulate abroad?
Foreign nationals who are seeking to enter the United States for permanent residence (i.e., obtaining a Green Card) must also prove their admissibility to the US. In addition, as part of the immigrant visa application, foreign nationals are required to undergo a medical examination, whose results are provided to the US Embassy or Consulate. Therefore, evidence of alcohol abuse discovered through the medical exam, as well as any alcohol-related arrests or DUI convictions, may raise the same eligibility issues as within the nonimmigrant (temporary) visa context. The consular officer can require additional screening by a panel physician, whose evaluation will be used in the ultimate decision on the case.
I am applying for a Green Card in the United States, and I have been convicted of a DUI. Will my case be denied?
The requirement that foreign nationals prove they are admissible applies equally to Green Card applications filed from within the United States (called adjustment of status) as it does to Green Card applicants applying through US Embassies and Consulates abroad. Similarly, applicants for adjustment of status must undergo a medical examination and submit the results with the application. USCIS, the agency of DHS responsible for adjudicating these Green Card applications, has specific guidance regarding drunk driving arrests and convictions.
Like the guidance binding the State Department, USCIS guidance notes that even if the arrests or convictions for a DUI does not attach a criminal-related ground of inadmissibility, they may be evidence of a health-related inadmissibility. Specifically, USCIS officers are directed that if an applicant’s criminal record “reveals a significant history of alcohol-related driving arrests and/or convictions” and the medical examination does not reflect that history, it is proper to require a “mental status re-examination” by a civil surgeon that specifically addresses the health-related grounds discussed above.
Under USCIS guidelines, a “significant history of alcohol-related driving arrests” includes: an arrest or conviction for a DUI while the driver’s license was suspended, revoked, or restricted at the time of the arrest due to previous alcohol-related driving incidents; an arrest or conviction for alcohol-related driving where death or personal injury resulted; a conviction where the conviction was a felony in the jurisdiction in which it occurred or incarceration was imposed; two or more arrests or convictions within the preceding two years; and three or more arrests or convictions where one of them was within the preceding two years. If the results of this “mental status re-examination” lead to a determination that a person is inadmissible on health-related grounds, an application for adjustment of status may be denied, or an applicant may be instructed to apply for a waiver of that ground of inadmissibility.
What if I am found inadmissible based on the criminal- or health-related grounds?
Foreign nationals found inadmissible on criminal- or health-related grounds may be eligible to file for a waiver of the inadmissibility in connection with the nonimmigrant (temporary) visa. These waivers are ultimately adjudicated by the Department of Homeland Security (DHS); however, if the consular officer does not believe a waiver should be granted, the officer will only forward the waiver application to the DHS if the visa applicant insists, and will generally recommend against the DHS granting the waiver. There is also a waiver available for inadmissible foreign nationals seeking to enter the United States in connection with a Green Card application.
For health-related grounds for individuals determined to have a physical or mental disorder with associated harmful behavior, there is a discretionary waiver available that requires the posting of a bond. For criminal-related grounds, a waiver is available for foreign nationals who can show that their US-citizen spouse, parent, or child would suffer extreme hardship if the Green Card application were denied. This same waiver is available to foreign nationals whose offenses were committed more than fifteen years before the application, whose admission to the United States “would not be contrary to the national welfare, safety, or security of the United States,” and who has been rehabilitated.
I am a foreign national in the United States, and I’ve been arrested/convicted of a DUI. Can I be deported?
It depends. In many cases, the arrest for an offense that requires someone to be fingerprinted can alert Immigration and Customs Enforcement (ICE) to the foreign national’s presence in the United States. If the foreign national is present in the United States without any lawful status, ICE may decide to initiate removal proceedings against the individual. In that case, while the arrest brought the foreign national to ICE’s attention, it is the unlawful status and not the arrest or subsequent conviction that makes that person amenable to removal (deportation) from the US. Once in removal proceedings, there are a large number of factual and legal factors that must be considered to determine if the foreign national is eligible for any relief from removal. These factors include the existence of US-citizen relatives and the person’s criminal and immigration history.
In the case of a foreign national who has been lawfully admitted to the United States and remains in valid status at the time of arrest or conviction (e.g., as a nonimmigrant worker or as a permanent resident, or Green Card holder), the answer to whether the person can be deported depends on the elements of the crime of conviction and the foreign national’s status and length of time in the United States. Generally, if the crime involves moral turpitude that is punishable by a year or more in prison (whether or not imposed) and the crime was committed within five years of admission, the foreign national is deportable. Again, however, the fact that the foreign national is deportable does not necessarily mean there is no relief from removal. Depending on the person’s length of time in the US, criminal and immigration history, and immigration status, the person may be eligible for a waiver of inadmissibility in conjunction with an adjustment of status application (as discussed above), or cancellation of removal. There may be other forms of relief as well if the person has fear of returning to the country designated by the Immigration Judge for removal.
I am a Green Card holder but I have a history of arrests and/or convictions for drunk driving or DUI. Will this bar me from US citizenship?
Possibly yes. Generally speaking, Lawful Permanent Residents (Green Card holders) may apply to naturalize (become US citizens) after five years as long as they meet certain physical presence and continuous residence requirements in the United States. In addition, they must show that for that same period of time they were persons of “Good Moral Character,” a general phrase referring to the commonly accepted standards of the duties that residents within a given community owe to each other. Immigration law provides that no person shall be regarded as a person of “Good Moral Character” if, during the required period that person was “a habitual drunkard.”
A criminal history therefore that includes a number of arrests or convictions for DUIs or drunk driving will raise this issue in the context of a naturalization application. Even if the arrests and convictions occurred outside the five-year period, naturalization officers may inquire as to whether an applicant for US citizenship has sufficiently rehabilitated from the alcohol-related behaviors when deciding whether to grant the application. If an applicant for naturalization has convictions that will make him removable (e.g., because they involved moral turpitude, were punishable by at least a year in prison, and were committed within 5 years of admission), the application itself may bring those to the attention of ICE and result in removal proceedings.
Finally, the immigration reform bill that passed the Senate in June 2013 includes a significant change to the grounds of inadmissibility discussed in this post. Section 3702 of the “Border Security, Economic Opportunity, and Immigration Modernization Act” (BSEOIMA) provides for the addition of new grounds of inadmissibility and deportability aimed at foreign nationals convicted of three or more offenses on separate dates related to driving under the influence or driving while intoxicated. These new grounds are clearly designed to make it easier for the Government to refuse entry or deny Green Cards to foreign nationals with such convictions.
In light of the strict rules and time-consuming procedures that come with visa, Green Card, and citizenship applications for people with alcohol-related driving arrests or convictions, it is crucial that foreign nationals with such a criminal history be prepared for additional procedures and longer waits when seeking entry to the US or immigration benefits from within the US. As the law and procedures continue to evolve, it is clear that the US Government is committed to using the law to exclude individuals who constitute a threat to public safety.