In the state of California, a DUI is a serious crime, and the associated consequences can be detrimental. The effects of a DUI arrest are more severe for non-immigrant visa holders. The risk and the uncertainties involved after a DUI arrest are significant. If you are facing DUI charges and you hold a non-immigrant visa, the Orange County DUI Defense Attorney Law Firm can assist you. We can help you come up with some defense strategies to fight the DUI charges. Seeking help may save you from losing the right to re-enter the U.S. or the risk of deportation.
Overview of a Non-Immigrant Visa DUI
Non-immigrant visa holders received some devastating news when the Department of State made public the 9th edition Foreign Affairs Manual. The manual contained a Department of State's policy stating that a non-immigrant visa can be revoked because of a mere DUI arrest. A DUI conviction is not even necessary for the revocation of a non-immigrant visa; an arrest is enough. Unlike other crimes that require proof of guilt before the defendant faces charges, the Department of State made DUI cases an exception.
It was a simple change in the Department of State's policy. The new position explained the causes of a prudential visa revocation based on potential ineligibility. All non-immigrant visa holders were affected. According to the new policy, once the Department of State learns about a DUI charge from the local law courts, you may lose your non-immigrant visa.
In most cases, prudential visa revocation occurs based on issues relating to physical and mental health and not criminal activities. However, the crime of DUI does not benefit from this special treatment. It appears that the Department of State equates DUI and physical/mental health cases or assumes a close correlation between the two issues. Revocation of your non-immigrant visa may occur even in a matter of a false DUI accusation even without a conviction.
It is important to note that the revocation of a non-immigrant does not result in deportation. However, upon cancellation of the visa, you would have to re-apply for a permit to re-enter the United States after traveling abroad. When re-applying for a visa, you would also have to undergo and pass a medical screening test. If you fail to pass the medical screening test, you may not be able to re-enter the United States.
After the revocation of a non-immigrant visa, your status will still be intact, but the stamp on your visa will no longer be valid. The stamp may not show any physical signs of invalidity on its face. You may wonder why your immigration status may be valid, yet the stamp on your visa is invalid. This inconsistency occurs because while the Department of State controls the issuing of visas, it does not control lawful entry into the United States. The United States Customs and Border Patrol control the lawful entry into the U.S. at an entry port.
Holders of non-immigrant visas receive detrimental stories of people who face deportation following a prudential visa revocation. It is the situation despite the fact that the revocation of a non-immigrant visa should not lead to deportation. However, after the cancellation of non-immigrant visas, some people receive notifications from consulates informing them of the revocation of their status. These forms of confusion and internal mistakes show how confusing a DUI conviction can be for a non-immigrant visa holder. If you hold a non-immigrant visa, you should contact a DUI defense attorney immediately after a DUI arrest to have him help you to fight the charges.
If you hold a prudentially revoked J-1 visa, your dependents holding J-2 visas may also suffer the same revocation. Currently, signs of other dependent's visa revocation outside of J-1 do not exist. However, as the situation continues to develop, revocation of your dependent's visas outside J-1 may be the new trend.
How Will You Know About the Prudential Revocation of Your J-1 visa?
The authorities should notify you through email or any other form of communication informing you about the cancellation of your visa. If the authorities are not able to communicate with you, you may hold an invalid visa without even knowing it. You can avoid traveling abroad if you are aware of your non-immigrant visa's revocation. In doing so, you will ensure that you will not encounter a challenge re-entering the United States. However, if you decide to travel abroad without the knowledge of your visa's revocation, you will have trouble traveling back to the United States.
Foreign Nationals in the U.S. and DUI conviction
In addition to non-immigrant visa holders, other foreign nationals may also face harsh consequences after a DUI conviction. Detrimental DUI consequences apply to both immigrant and non-immigrant visa holders. Additionally, if you are in the United States as a student, refugee, worker, or tourist, a DUI offense will have severe consequences.
Upon a DUI arrest, the law enforcement officers record your fingerprints, photos, and other personal details in a database. This may not create immediate immigration problems. However, in the future, a DUI history on your record could significantly cost you. A history of DUI offense may prevent you from accessing immigration benefits. For instance, if you apply for adjustment of status, a visa renewal, or readmission to the United States, you may not be successful due to a prior DUI offense. A DUI record may also prevent you from the commencement of the naturalization process or hinder your petition for a relative to immigrate. The authorities responsible for deciding whether to approve your immigration benefit request will see your DUI history, and this may affect their decision.
To prevent a DUI conviction from going to your record, it is always advisable to have a DUI defense attorney. This applies if you are a foreign national holding a non-immigrant or immigrant visa. Although it is uncertain, a conviction may lead to deportation. A DUI conviction may also lead to denial of citizenship or re-entry into the U.S. Section 101 a-48 of the Immigration and Nationality Act defines a sentence in extensive terms. The Act states that conviction includes a delayed adjudication of guilt, an actual guilty verdict or plea, or a no-contest plea. The sentence also consists of a court-ordered punishment of any kind. In certain circumstances, an experienced DUI defense attorney can circumvent this broad definition of conviction. However, it is essential to note that an ordinary plea deal may not prevent you from facing harsh immigration consequences.
What is Inadmissibility?
If a DUI conviction has some aggravating factors, it may render you inadmissible into the United States. The DUI crime may form a basis to deny you entry or re-entry into the United States.
What are the Implications of Inadmissibility?
If you are inadmissible, you cannot re-enter the U.S. after leaving. It is illegal to re-enter the U.S. after denial of admission to the country. After removal or deportation from the United States, it is unlawful to re-enter. If you leave the United States under an order of deportation or removal, it would be illegal to re-enter. If you illegally enter the United States, the associated may include hefty fines and imprisonment of up to two years in federal prison. In some instances, illegal re-entry may attract harsher penalties. For example, if your removal was due to a conviction involving drug crimes or a felony other than an aggravated felony, you might face up to 10 years in federal prison.
You may not be able to become a U.S. citizen through naturalization if you are inadmissible. Typically, legal permanent residents who hold green cards can become U.S. citizens. After naturalization, you will enjoy the same rights and privileges as people born and brought up in the United States. To get citizenship through naturalization, you have to go through various steps. You have to fill the N-400 form, attend an interview, pass the citizenship test, and finally take the citizenship oath. All this will be impossible if you have a DUI conviction, rendering you inadmissible.
You cannot apply for Legal Permanent Residence (Green Card) if you are inadmissible. In the state of California, more than three million foreigners are green card-holders. These people have a legal right to live and work in the United States. There are many ways of attaining a legal permanent residence, including through family sponsorship and employment sponsorship. A DUI record may hinder all your chances of achieving a lawful permanent residence.
Finally, if you are inadmissible due to DUI, you cannot adjust your status to a lawful permanent resident without leaving the U.S if you are an alien.
There are several inadmissible crimes, which may keep you from being able to enter the United States or prevent you from becoming a green card-holder. Committing a crime with moral turpitude within five years after entering the United States will render you inadmissible as a U.S. citizen Inadmissibility also results from most drug crimes. You may also be inadmissible if you commit two or more offenses, and your total prison time adds up to five years or more. Any crime that portrays a lack of moral character may lead to inadmissibility.
DUI Offenses and Immigration Law
Currently, most DUI convictions do not have negative immigration consequences in California. Most ordinary DUI crimes may not qualify as crimes involving moral turpitude. Also, most ordinary DUI crimes are not aggravated felonies. In itself, ordinary driving under the influence of alcohol does not form enough grounds for deportation.
However, it is essential to note that in some instances, DUI cases may have adverse immigration consequences. You may face deportation upon committing a DUI crime if you have a prior criminal record. If the total consequences handed over to you exceed five years, you may face deportation.
Crime Involving Moral Turpitude
The Immigration and Nationality Act does give a clear definition of crimes involving moral turpitude. However, a crime involving ordinary DUI is not a crime involving moral turpitude. When determining whether an offense is a crime involving moral turpitude, courts rely on the definition given by the federal Board of Immigration Appeal (BIA). Any crime that is not acceptable for persons living in society is a crime involving moral turpitude. As BIA states, it is any crime that shocks the public conscience. It includes any crime that is depraved, base, or vile.
To be guilty of a crime involving moral turpitude (CIMT), you must have a specific intent while committing the crime. If you commit the offense out of mere negligence without a particular purpose, the crime may not qualify as a CIMT.
In the past, DUI causing injury, or even death did not qualify as a CIMT. This is because the crime of DUI causing injury or death lacked criminal intent. In the past, a defendant needed to act willfully or purposely while committing a crime. At the time of acting, the defendant must have been aware that his/her actions would result in detrimental effects.
However, the Board of Immigration Appeals had a differing opinion in the case of Matter of Franklin. The board maintained that for a crime to qualify as CIMT, criminal recklessness was enough. This is not good news for immigrants. The Administrative Appeals Office made it clear that a crime of gross vehicular manslaughter while intoxicated may qualify as a CIMT. The appeals office maintains that a case of gross negligence is equivalent to recklessness, as in the case of Franklin.
A Person Dies in a DUI Case
Even if another person dies in a DUI crime, the crime may not qualify as a CIMT. This holds if there is no specific intent to commit the crime to attain a particular result. However, if you commit DUI murder or Watson murder, the offense may count as CIMT. This would have detrimental immigration consequences, including deportation. You may face CIMT charges if it is clear that you acted with malice aforethought or implied malice.
When are you guilty of acting with implied malice? You may be liable if you commit an intentional act like driving under the influence of alcohol. The nature of your actions or the probable consequences of the actions must be dangerous to human life. At the time of committing the act, you must have known that your actions were dangerous to human life. It must be evident that you acted with conscious and intentional disregard for human life. A Watson murder/DUI murder is both a felony and a CIMT. Therefore, if you get a conviction of Watson Murder, you will be not only deportable but also inadmissible. You cannot successfully apply for citizenship in the U.S., and you risk removal from the U.S.
Drug-related DUI Offenses and Immigration Law
In the state of California, ordinary DUI involving alcohol may not have detrimental consequences. However, this is not the case with DUI of drugs. If you commit a drug-related DUI crime, you will be deportable and inadmissible. A drug-related DUI may subject you to removal action because it often involves an illegal substance.
Federal drug laws and California laws define controlled substances differently. For a conviction under California drug laws, you cannot face deportation even when the drug/substance involved is on the federal list. However, a federal drug conviction is different, and you may face deportation. However, even for a drug conviction under California law, you would still be answerable in an immigration court. You may choose not to fight DUI of drugs charges in court as you risk conviction. Instead, you may find it wise to plead guilty or no contest to an offense that has minimal immigration consequences.
DUI with a Minor and Immigration Law
If you operate a vehicle under the influence of alcohol in the company of a child, you may face serious immigration consequences. In addition to immigration consequences, you may face children charges under California Penal Code 273a. Unlike driving under the influence cases, a child endangerment case qualifies as a crime involving moral turpitude. The child endangerment sentences punish the defendant for knowingly exposing a child to danger. If you intentionally expose a child to harm, this is a reasonable basis for deportation under California law.
In some instances, a crime of child endangerment under P.C. 273a may not form grounds for deportation or removal. If you place a child in a situation where his/her health or person may be in danger, you may face negligent child endangerment. Negligence does not automatically imply acting intentionally or on purpose. Therefore, negligent child endangerment cannot result in deportation. Attorneys often argue that no crime under child endangerment law should form grounds for deportation. However, you should not assume that California courts are willing to accept this argument.
Repeat Ordinary DUI Convictions
If you commit multiple DUI offenses, you may be inadmissible to the U.S., even if you only commit ordinary DUI. This will depend on the total jail time for your sentence. You may be admissible if you have two or more convictions, including DUI convictions. If the complete punishment for all your crimes, including DUI crimes, exceeds five years, you might be inadmissible.
If you commit a felony DUI offense, you are likely to meet the five years imprisonment easily. Any fourth DUI conviction within ten years is a felony punishable with up to three years in jail. If you commit this imprisonment with imprisonment for prior DUI cases or any other crime you may have committed, this may push you beyond the five-year limit.
Determination of Good Moral Character
If you are seeking to change your immigration status in the United States, you have to portray an excellent moral character. For instance, for you to become a citizen of the United States by naturalization, it must be evident that you are of good moral character. This case also applies if you are seeking cancelation of removal from California. The authorities involved in determining whether you are of good moral character will check your criminal history. This will unearth your DUI convictions, which may influence their assumption. You may not stand a chance of succeeding in changing your immigration status if you have one or two DUI convictions on your record.
If you have multiple DUI convictions, the immigration experts may assume that you are a habitual drunkard. A habitual drunkard is not a person of good moral character. It is important to note that there is a clear difference between being a habitual drunkard and an alcoholic. In itself, alcoholism is not an indication of bad moral character. It is your intentional conduct during the period under evaluation that matters.
DUI and Unlawful Presence
A conviction for simple DUI may not form the ground for deportation. However, it may unearth your unlawful immigration/ presence. Law enforcement agencies in California may not contact ICE (United States Immigration and Customs Enforcement) in various instances. This is because California is a sanctuary state. If you use AB 60 license to identify yourself to law enforcement officers, the officers may not notify ICE. The officers may also not notify ICE if they arrest you for a low-level crime, including a crime of simple DUI.
However, it is critical to note that all convictions and arrests in California are public records. These records may help the ICE to trace you if ICE is already searching for you. The ICE may already be aware of your prior drunk driving habits. It is common for ICE agents to detain undocumented immigrants with prior DUI convictions. If this happens to you, you may face deportation for unlawful presence in the United States. If you are an undocumented person living in the U.S., the only way you can avoid deportation is by avoiding driving under the influence of alcohol. You should also avoid DUI of drugs.
Contact an Orange County DUI Attorney Near Me
If you are a non-immigrant visa holder in California, a DUI conviction may have detrimental effects on your immigration status. To protect your immigration status, you should always seek legal representation in case of a DUI arrest. If you are currently facing DUI charges, the Orange County DUI Defense Attorney Law Firm can help you come up with a defense strategy. Contact us at 714-740-7866 and speak to one of our attorneys.