Posts Tagged ‘DUI’

DUI and Immigration Consequences

Friday, June 14th, 2019 by W. Scott Railton

A colleague recently contacted me to ask about a plea bargain deal for a driving under the influence charge. It is always best to consider this sort of thing before making the deal.  Indeed, the Supreme Court says defense attorneys are required to do so.  In the landmark case of Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme Court said:

“Petitioner Jose Padilla, a native of Honduras, has been a lawful permanent resident of the United States for more than 40 years. Padilla served this Nation with honor as a member of the U.S. Armed Forces during the Vietnam War. He now faces deportation after pleading guilty to the transportation of a large amount of marijuana in his tractor-trailer in the Commonwealth of Kentucky.

In this postconviction proceeding, Padilla claims that his counsel not only failed to advise him of this consequence prior to his entering the plea, but also told him that he “`did not have to worry about immigration status since he had been in the country so long.'” 253 S.W.3d 482, 483 (Ky.2008). Padilla relied on his counsel’s erroneous advice when he pleaded guilty to the drug charges that made his deportation virtually mandatory. He alleges that he would have insisted on going to trial if he had not received incorrect advice from his attorney….. We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation.”

Now, back to my colleague’s inquiry. I wanted to relay a quick response. Unfortunately, these aren’t always simple matters. Every case is different, on its facts, and the details can very much matter.

The first step in each case is to identify the immigration status and defense goals.  Here are some threshold questions to consider:

  • First, what is the jurisdiction? Laws and consequences differ state to state.
  • Are there any aggravating factors in the case, such as harms to person or property?
  • Is marijuana, legal or not, involved in the case in any way? While it may not be an issue at the State level, it could become a big issue in future immigration applications or proceedings.
  • Is there any other type of controlled substance that is involved in the case?
  • Was the driver licensed? Were they cited for anything beside DUI?
  • What is the driver’s status in the United States? Visa holders with DUI arrests are having their visas revoked automatically.
  • Were there passengers int he car?  Under 16?
  • Is there an alcohol or drug problem? Government guidance usually requires a panel physician examination.
  • Is there any evidence of a physical or mental disorder? This is potentially a separate basis for inadmissibility.
  • Does the individual have trusted traveler benefits, such as NEXUS and Global Entry?
  • Is there a desire to apply for naturalization in the near future, or even a pending application?

U.S. immigration has gotten harder. These are challenging times for even the best qualified applicants. All potential immigration consequences need to be carefully considered before a plea bargain is struck.

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Posted in General, Marijuana and Immigration, Scott Railton |

Pittsburgh Pirates Jung Ho Kang’s Denied Visa for DUI Arrests

Friday, March 24th, 2017 by W. Scott Railton

The news is reporting that Jung Ho Kang, the Pittsburgh Pirate’s starting third baseman from South Korea, was denied a visa to play ball this year in the United States due to his past DUIs. The news reports that he has been sentenced to 8 months in jail, which has been suspended, for a December 2016 DUI arrest. Additionally, it is reported that he has two past DUI arrests. Mr. Kang is not a client of ours, and so all comments here are based the hearsay of reported news. His high profile case is illustrative for all persons facing DUI issues, and so I thought I’d type out a few comments.

A single Driving under the influence conviction is not typically a basis for inadmissibility. A single offense may create an admissibility issue if there are aggravating factors. However, the Immigration and Nationality Act renders inadmissible anyone who is deemed a “habitual drunkard”. The habitual drunkard standard does not mean anyone who has ever been arrested for DUI or who, say, is a member of Alcoholics Anonymous. Inadmissibility is established on health-related grounds, and out of concern that a person may be a threat to the “property, safety, or welfare of the alien or others.”

Here’s how it plays out.  A person goes into a visa interview at a foreign consulate, and on the forms acknowledges the past arrests and/or convictions. The Consular Officer then evaluates the whole of the visa application, and probably would refer the person to a Panel Physician, to evaluate whether there is a “habitual drunkard” or other threatening health condition. Panel Physicians are government approved physicians, who are trained to conduct medical examinations related to admissibility issues. They make determinations based on Technical Instructions issued by the Center for Disease Control.

The Department of State has been cracking down in the last year or so on DUI issues. They have implemented a policy of “prudentially revoking” visas for persons who have been arrested for DUIs, and have required that such persons re-apply for visas before seeking to re-enter the U.S.

Nonimmigrant waivers may be available, as need be. A person in Mr. Kang’s situation would first need to obtain a recommendation for a nonimmigrant waiver, if required. This recommendation is forwarded to U.S. Customs and Border Protection’s Admissibility Review Office for further review. CBP will apply a balancing test weighing the need for entry, rehabilitation, and the threat of harm to the U.S. Waivers are easier to obtain after the passage of time from the underlying event(s).

Department of State’s 9 FAM 403.11-5(B) (U) on Prudential Revocations

c. (U) Prudential Revocation for Driving Under the Influence: Either Post or the Department has the authority to prudentially revoke a visa on the basis of a potential INA 212(a)(1)(A) ineligibility when a Watchlist Promote Hit appears 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 when the arrest has already been addressed within the context of a visa application; i.e., the individual has been through the panel physician’s assessment due to the arrest. This does not apply to other alcohol related arrests such as public intoxication that do not involve the operation of a vehicle. Unlike other prudential revocations, consular officers do not need to refer the case to the Department, but can prudentially revoke on their own authority. Post should process the revocation from the Spoil tab NIV and add P1A3 and VRVK lookouts from the Refusal window.

Immigration and Nationality Act excerpt:

Sec. 212. [8 U.S.C. 1182]
(a) Classes of Aliens Ineligible for Visas or Admission.-Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:
(1) Health-related grounds.-
(A) In general.-Any alien-
(i) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance; 1b
(ii) 1except as provided in subparagraph (C) 1a who seeks admission as an immigrant, or who seeks adjustment of status to the status of an alien lawfully admitted for permanent residence, and who has failed to present documentation of having received vaccination against vaccine-preventable diseases, which shall include at least the following diseases: mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B and hepatitis B, and any other vaccinations against vaccine-preventable diseases recommended by the Advisory Committee for Immunization Practices,
(iii) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services in consultation with the Attorney General)-
(I) to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, or
(II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior, or
(iv) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to be a drug abuser or addict, is inadmissible.
(B) Waiver authorized.-For provision authorizing waiver of certain clauses of subparagraph (A), see subsection (g).

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Posted in Scott Railton |