If you are in the U.S. on a non-immigrant visa and have been recently arrested on charges of DUI, the risks and uncertainties involved are too great to go without the best possible legal representation to defend against those charges. Even for those legally in the United States on immigrant visas but especially for those on non-immigrant visas, can face very serious consequences for a DUI conviction or even for only a DUI arrest.
At Los Angeles DUI Lawyer, we understand the details of U.S. law and enforcement policies regarding the status of non-citizens in the United States who are under scrutiny for DUI. Los Angeles is a major U.S. port of entry for those with all manner of visas from all over the world, and we at Los Angeles DUI Lawyer are ready to serve L.A.'s diverse community with our firm understanding of U.S. immigration law and California DUI law.
To learn more or for a free consultation concerning the details of your case, contact us 24/7 at 424-281-3020.
Recent Rule Changes for Non-immigrant Visa Holders
In early 2016, when the Department of State's 9th-edition Foreign Affairs Manual was made public, holders of non-immigrant visas learned some disconcerting news. The manual revealed a DOS policy that allowed the revocation of a non-immigrant visa upon a mere arrest for DUI even without a conviction. While proof of guilt was required for other crimes, DUIs were made an exception to this rule.
Interestingly, there was not change in law that took place but simply a change in DOS policy. A "prudential visa revocation" can now be issued to anyone with a non-immigrant visa based on "potential ineligibility" once the DOS learns of a DUI charge from local law enforcement agencies.
Technically, a prudential revocation is done on the basis of potential "physical or mental health" related issues rather than for criminal activity, even though the criminal charge of DUI is singled out for this "special treatment." Thus, DUI and mental/physical health issues are either equated or correlated, and one falsely accused of DUI is in danger of having his/her non-immigrant visa revoked.
While this situation is serious, nonetheless, the revocation of a non-immigrant visa is not supposed to result in deportation. It can, however, cause one to have to reapply for a visa after traveling abroad and wishing to reenter the United States. And such would also be required to undergo and pass a medical screening.
Technically, the individual's status is considered to be still intact, but the visa stamp is no longer valid (though it shows no signs of being invalid on its face). This incongruity arises from the fact that, while the DOS controls the issuing of visas, lawful entry into the U.S. is decided by U.S. Customs and Border Patrol at a port of entry.
And, even more disturbing to holders of non-immigrant visas, are the stories that have surfaced of people being deported despite after a prudential visa revocation despite the fact that that is not supposed to happen. And some have been issued letters from consulates that incorrectly state that the individual's status in the U.S. is revoked. These kinds of internal mistakes and misunderstandings by those in charge of the process show how complex and confusing the process can be, and put holders of non-immigrant visas in a state of much uncertainty.
Finally, we should note two last things: those holding a J-1 visa that is prudentially revoked for DUI will see their dependents with J-2 visas also suffer such revocation. So far, there is not sign of other dependents' visas being revoked outside of J-1, but this may turn out to be the case as the situation develops. Second, while you are supposed to be notified by email or some other way if prudential revocation for DUI has taken place, if you cannot be reached or an oversight takes place, you could have a revoked visa without even knowing it. You would obviously avoid travel abroad if you know of a prudential revocation, but some have found out while already abroad of the revocation and had difficulty in reentering the U.S.
Potential Consequences of a DUI for Foreign Nationals in the U.S.
While we have been addressing a very specific situation of a non-immigrant visa holder getting a DUI above, and recent rule changes in relation thereto, all foreign nationals with U.S. status can be affected by a DUI or other criminal charge/conviction.
Thus, much of what is given below will apply to holders of both immigrant and non-immigrant visas, to those in the U.S. as refugees, workers, students, tourists, those here in the U.S. with family, and in fact, every foreign national in the U.S. or currently with U.S. status.
When you are arrested as a foreign national, the fingerprints, photos, and record of arrest are entered into a national database. If you are convicted of a DUI or other crime, that information is also entered, whether it be a state or federal law that was broken. This can create a problem down the road even if it does not lead to serious immigration consequences immediately (which it could). When you later apply for a new immigration benefit, such as visa renewal, adjustment of status, readmission into the U.S., commencement of the naturalization process, or to petition for a relative to immigrate, your record will be viewed by those deciding on whether or not to approve your request.
It is especially crucial to foreign nationals to have a good DUI lawyer to avoid a conviction going on their record, for it is possible (though not certain) that such a conviction could lead to deportation, denial or reentry, or denial of citizenship.
And the Immigration and Nationality Act, Section 101a-48 defines "conviction" in the broadest possible terms. It includes an actual guilty verdict/plea, a no contest plea, a delayed adjudication of guilt, or a situation where a court-ordered punishment of any kind has been imposed. A skilled immigration lawyer may be able to circumvent this strict definition in certain circumstances, but ordinary plea deals do not simply automatically prevent harsh immigration consequences.
Is a DUI a "Crime of Violence?"
Due to the devastating effects on others, in the form of loss of life and/or severe bodily injury, in extreme DUI cases (usually in felony DUIs), there has been some public pressure to define a DUI as a "crime of violence." Some lawful permanent residents have even had deportation proceedings begun against them for felony DUIs in which others were injured or killed.
However, the Supreme Court has (rightly, we think) ruled that the legal definition of a "crime of violence" involves a form of intent that surpasses that of mere negligence, which is what applies to a DUI. It requires the defendant chose to use physical force for the purpose of harming others, and the crime of DUI is not "naturally included" with crimes of active violence with ill intent.
Is a DUI a "Crime of Moral Turpitude?"
In California, as in many other states, certain crimes are singled out as "crimes of moral turpitude." Such crimes are regarded by federal immigration law as grounds for immediate removal from the United States.
The phrase "moral turpitude" is infamous in the legal world for being "slippery and difficult to define." It is not even specifically defined in the INA (Immigration and Nationality Act). But, in general, it is taken to refer to crimes that are "base, vile, and depraved" in nature, to violations of or disregard for the commonly accepted, basic rules/duties of a moral society.
Moral turpitude is also generally held to require the defendant committed the crime "intentionally and knowingly," with a "vicious motive," or out of a "corrupt mind." However, moral turpitude can also be attributed to crimes of gross negligence in certain DUI cases.
A simple DUI would not be considered a crime of moral turpitude by practically any judge in the country, but when aggravating factors like causing severe bodily injury or death or child endangerment are present, a DUI could be a crime of moral turpitude and, thus, could lead to deportation. Whether or not it will do so, however, depends not simply on the facts of the case but on the way the state law defines the offense. Thus, it is crucial to have an experienced DUI defense lawyer who is familiar with California's Vehicle and Penal Codes handling your case.
Denied Admission Based on a DUI?
If convicted of a DUI with an aggravating factor, it is possible it will be used as grounds to deny you entry or reentry into the Unites States if you are a foreign national. This is especially likely if the DUI has been defined as a crime of moral turpitude.
If you apply for a visa of any kind at a U.S. consulate while abroad, and a "serious" DUI is on your record, you could be required to submit to a medical examination. If the exam results in your being classified as one addicted to alcohol, the physician will have authority to (in effect) deny or allow your entry into the U.S. The physician's decision is reviewable by the CDC, but this review does not usually occur much less overturn the decision. For this reason, it is better to get the assistance of an experienced DUI/immigration lawyer before seeing the physician for the medical exam, so that your lawyer can help you prepare to produce evidence to the physician that you are not an alcoholic.
Finally, a non-immigrant visa needing renewal can also be denied if a DUI defined by state law as a crime of moral turpitude or a crime of violence is on his/her record. And additionally, those seeking an adjustment of status from non-immigrant to immigrant visa after entering the U.S. can also have that request denied based on a serious DUI (like vehicular homicide or Watson Murder). Such a person would be deported after the adjust status request was formally denied.
Denied Citizenship Based on a DUI?
It is possible to be denied citizenship based on a DUI on your criminal record, but again, there would likely have to be aggravating factors for this to occur. Past Supreme Court rulings have established precedent that a person convicted of DUI but who has fulfilled the required DUI School and the other requirements of his/her sentence should not be denied naturalization based on the DUI.
However, those applying for U.S. citizenship must demonstrate "good moral character" for the previous 5 years. This does not mean "perfect" moral character or even that no crimes were ever committed, but an extreme DUI or one for which one has not fulfilled the sentence/probation requirements could bar one from citizenship.
At Los Angeles DUI Lawyer, we routinely take on DUI cases for foreign nationals living in the Los Angeles and Southern California Area and have a long track record of winning those cases. We know how to fight to get your DUI dismissed/acquitted or, if that is not possible, to minimize your charge/sentence and the impact of the DUI on all immigration and visa related issues.
Contact Us Today for Help
At Los Angeles DUI Lawyer, we are fully equipped to serve those with non-immigrant visas, whether a work or travel visa, who are accused of DUI in the L.A. Area. We can also handle cases involving immigrant visas or any DUI case involving foreign nationals and federal law.
While these types of DUI charges are more complex and have additional potential consequences, it is not true that they always result in deportation or revocation of your visa. Having a skilled DUI defense lawyer fighting on your side will minimize the odds of such a devastating result as well as help you to avoid a DUI conviction or at least to get a favorable plea.
For a free DUI consultation, do not hesitate to contact us 24/7/365 at 424-281-3020.