Happy 2020! It’s a new year and a new decade, but some things haven’t changed. Combining driving with alcohol and drugs is dangerous, and can also get U.S. immigrants into plenty of legal trouble. As we’ve advised before, don’t drive while drunk or impaired. It’s dangerous for everyone – AND can risk your U.S. immigration status. Whether it’s alcohol, marijuana – even if it’s legal in your state, other drugs or a combination of intoxicants, just don’t operate a vehicle while under the influence.
In Oregon, where we’re located, the DUII (driving under the influence of intoxicants) law (ORS 813.010) prohibits driving when one’s physical or mental facilities are “adversely affected to a noticeable or perceptible degree” as the result of ingesting drugs and/or alcohol, specifically:
- with a blood alcohol content (BAC) of .08% or more, or
- while under the influence of alcohol, cannabis, a controlled substance, and/or an inhalant.
Such laws exist across the U.S., and it makes no difference if the substance was obtained legally or illegally, for example by a doctor’s prescription. In many states possession of marijuana remains illegal and is an additional problem for anyone convicted, especially for non-US citizens, even if you’re only arrested and not convicted. Marijuana remains illegal as a controlled substance under U.S. federal (national) law and is therefore a problem in immigration law. In fact, you don’t even need to be arrested or convicted of a drug offense to be denied admission to the U.S. from abroad. The State Department’s Foreign Affairs Manual (FAM) which consular officers are required to follow, states: an alien may be found ineligible if he or she admits to committing the essential elements of a drug violation in lieu of a conviction under INA 212(a)(2)(A)(i)(II) (see 9 FAM 302.3-2(B)(4) for the standards that must be followed in obtaining a legally-valid admission in lieu of conviction).
DUI convictions and naturalization. On Dec. 10, 2019 USCIS issued a policy alert regarding Driving Under the Influence convictions and applications for naturalization/citizenship. One of the requirements to naturalize is to show “good moral character” or GMC for the five prior years, or three if you’re applying based on marriage to a U.S. citizen. This is called the “statutory period.” For applications pending or filed on or after Oct. 25 2019, evidence of two or more DUI convictions during the previous 3- or 5- year statutory period “establishes a rebuttable presumption of a lack of GMC.” This means that you will be presumed to lack good moral character if you have two such convictions and therefore be ineligible to naturalize, but you can produce evidence to attempt to rebut the presumption. For example, if you had two DUI convictions four years before, maybe in a short period of time, but then engaged in serious rehabilitation or detox efforts, and have shown no evidence of relapsing, you might still be eligible. However, you’ll have a better chance of success if you wait to apply until the convictions no longer occurred during the statutory period.
Alcohol-related arrests and convictions when applying for a U.S. visa abroad. When the consular officer finds evidence suggesting an alcohol problem with a visa applicant – whether for an IV immigrant visa (green card) or NIV nonimmigrant (temporary) visa such as student, visitor, or H-1B temporary worker, the FAM requires (9 FAM 302.2-7(B)(3):
- Referring Applicants to the Panel Physician: To ensure proper evaluation, you must refer applicants (immigrant and nonimmigrant) to the panel physician when they have:
(1) A single alcohol related arrest or conviction within the last five years;
(2) Two or more alcohol related arrests or convictions with the last ten years; or
(3) If there is any other evidence to suggest an alcohol problem.
Medical Examination Required: Applicants, including NIV applicants, who are referred to a panel physician due to alcohol-related offenses must receive a full medical exam evaluation….
It’s advisable to delay your consular interview for at least two years after a conviction for an offense involving driving under the influence of alcohol or other intoxicants.
Alcohol or drug-related arrests and convictions when already in the U.S. with a nonimmigrant (temporary) visa. Nonimmigrants including students and temporary H-1B workers who already have a visa may be subject to revocation of that visa. The FAM states that consular officers may “prudentially revoke” a visa based on DUI arrests or convictions (9 FAM 403.11-5(B)(c) – – Prudential visa revocation for DUI arrests or convictions “for an arrest or conviction of driving under the influence, driving while intoxicated, or similar arrests/convictions (DUI) that occurred within the previous five years…This does not apply to other alcohol related arrests such as public intoxication that do not involve the operation of a vehicle. …consular officers…can prudentially revoke on their own authority.”
What does this mean? You won’t be deported but if you leave the U.S., you will not be able to re-enter on the revoked visa. Bottom line: Seek legal advice before making travel plans.
DUI and DACA. A person is ineligible for DACA if he or she has been convicted of a significant misdemeanor; including driving under the influence. Currently the government is not accepting new applications for DACA, only renewal applications. If you have a DUI conviction after you were previously granted DACA, you will have problems renewing and are at risk of being deported.
DUI convictions and asylum. Asylum is not available if the noncitizen was convicted of a “particularly serious crime” and constitutes a danger to the community. There have been mixed court decisions on whether a DUI conviction is a “particularly serious crime.” But USCIS and EOIR proposed new restrictions on asylum in Dec. 2019. They proposed ineligibility for asylum if the applicant has a second or subsequent offense of driving while intoxicated or impaired, or for a single such offense resulting in death or serious bodily injury.
These are not the only consequences of DUI arrests and convictions. But you can see from the above that driving while impaired can have serious, possibly permanent, effects on your U.S. immigration status. It’s far less risky to others on the road, and to yourself, to have a designated driver, use public transportation, or call a taxi.
