The US Department of State adopted a new policy in 2016. The policy relates to people living in the United States on a non-immigrant visa. According to the new policy, DUI offenders with a non-immigrant visa are subject to prudential revocation upon committing a DUI offense. Your non-immigrant visa may be revoked based on some issues, including health issues and mental issues. The US Department of State assumes that if you are accused of DUI, it may be a sign of mental and physical issues. Therefore, a DUI accusation may lead to the revocation of your non-immigrant visa. If you are a non-citizen facing a DUI charge, San Jose DUI Law Firm can assist.
Overview of Non-Immigrant Visa DUI
The complex part about the prudential revocation of a non-immigrant visa is that you can lose the visa on the grounds of DUI suspicion. A DUI conviction is not necessary for the revocation of a non-immigrant visa. Mere suspicion of driving under the influence of drugs or alcohol is enough. This poses a risk of having your non-immigrant visa revoked even when you are innocent of the charges of DUI.
All is not lost if the law enforcement officers arrest you on suspicion of driving under the influence. Although the new policy has the practical effect of revocation on your non-immigrant user, the revocation does not lead to automatic deportation. Since the US Department of State came up with the policy on a non-immigrant visa, there has not been enough time to prove the full effects of the policy.
As at now, if your non-immigrant visa is revoked on grounds on the grounds of DUI, you would have to re-apply for another visa before re-entering the US if you happen to leave the country. Critics argue that the fact that a person is facing accusations for DUI forms an insufficient basis to revoke the person's visa status. Instead, a revocation of non-immigrant visa should occur if a person is convicted and proven guilty of driving under the influence.
With non-immigrant visa revocation, you will not only have to re-apply for a visa after traveling abroad; you will also have to undergo a medical screening test. Your status will still be intact even after revocation. However, the visa stamp will no longer be valid even if it does not show signs of being invalid. In the United States, the Department of State controls the issuance of visas. However, it is the US Customs and Border Patrol that regulates the lawful entry into the United States.
Some horror stories exist of some people who have faced deportation after the revocation of their non-immigrant visas. However, this is not supposed to happen. It is common for defendants to get letters from the consulates stating that the defendants' status in the United States is revoked. A lot of internal mistakes and misunderstandings exist as far as immigration status is concerned. It is therefore common for non-immigrant visa holders to experience a lot of uncertainty, especially after committing a DUI offense.
It is important to note that if you hold a J-1 Visa, which is prudentially revoked for DUI, the J-2 visas of your dependents are also automatically revoked. So far, the revocation of J-2 visas is not common. However, as the situation develops, revocations of other dependents' visas outside of the J-1 visa will be the norm.
Upon revocation of your visa, you should get a notification through email or some other means. If the authorities are unable to reach and communicate to you, you may have a revoked visa without even knowing it.
If you are aware of the revoked status of your non-immigrant visa, you can avoid traveling abroad. However, it is only after traveling abroad that most people learn that their non-immigrant visas are revoked. Many people learn about revocation after they are barred from re-entering the United States.
Why Have a Good DUI Attorney?
If you are facing DUI charges as a non-immigrant visa holder or a foreign national, you need a competent DUI lawyer. DUI has severe immigration consequences that apply to both immigrant and non-immigrant visa holders. Even if you do not face deportation, a DUI offense will affect your stay in the United States.
Upon arresting you for DUI, the law enforcement officers will record your photos, your fingerprints, and record of arrest into a national database. This may not lead to immediate immigration consequences. However, you are likely to face some problems in the future.
If you apply for a new immigration benefit like the renewal of your visa, the people deciding whether to approve your request will first review your record. You may also face challenges when seeking commencement of the naturalization process, adjustment of status, or re-admission into the United States.
If you have an excellent DUI attorney, the attorney can help prevent your DUI offense from getting into your record. Even if it may not affect you immediately, a DUI conviction may lead to denial of citizenship, denial of re-entry, and deportation. The Immigration and Nationality Act Section 101a-48 defines conviction in many terms. According to the Act, a conviction may include a no-contest plea, a guilty plea verdict, or implementation of a court-ordered punishment of any kind.
Is DUI a Deportable Crime Under California Law?
Under certain circumstances, driving under the influence may qualify as a deportable crime under California law. DUI may also make you inadmissible into the United States. Some of the DUI crimes that may subject you to inadmissibility into the US or deportation include:
- Committing a DUI offense with a child in the car. The child or minor is any person who is below 14 years of age
- Driving while under the influence or while addicted to drugs and in some instances alcohol
- Committing multiple drunk driving or DUID offenses. You may also face deportation for a DUI conviction plus other criminal convictions
The above points are an indication of the current position of federal immigration law in the United States. However, every now and then, a bill seeking to make DUI a deportable offense comes up. Although most prior bills seeking to make DUI a deportable crime have not been successful, this may not always be the case. In the future, Congress may pass a bill that will elevate the Immigration consequences of operating a vehicle under the influence of alcohol.
Does Driving Under the Influence Qualify as a Crime of Violence?
There has been some public pressure to define DUI as a crime of violence. This is due to the devastating effects that DUI has on victims. Often, DUI leads to loss of life and may also cause significant bodily injury. Some people have faced deportation proceedings for felony DUI crimes after causing death or injury to other persons.
According to the Supreme Court in California, DUI is not a crime of violence. For an offense to qualify as a crime of violence, it must involve an intent to commit violence. The form of intent involved must surpass that of mere negligence for an offense to qualify as a crime of violence. For a crime of violence, it must be evident that the defendant chose to use physical power to harm other people. Therefore, a crime of DUI is not naturally included in crimes that involve active violence with ill intent.
The Crime of Moral Turpitude
A crime of moral turpitude may lead to deportation from the United States. Most people often wonder whether DUI is a crime of moral turpitude due to its severe immigration consequences. In California and some other states in the US, a crime of moral turpitude leads to immediate removal from the country. It is difficult to define the exact meaning of moral turpitude. The Immigration and Nationality Act does not define the crime of moral turpitude. However, crimes of moral turpitude are crimes that are depraved, vile, and base in nature. They are crimes that portray a disregard of commonly accepted duties and the basic rules of a moral society.
In a crime of moral turpitude, it is often clear that a defendant commits the crime knowingly and intentionally. A defendant commits a crime of moral turpitude with a vicious motive or a corrupt mind. It is important to note that crimes involving gross negligence as in the case of some DUI crimes may qualify as crimes of moral turpitude.
A simple DUI crime that does not lead to significant bodily injury or death does not qualify as a crime of moral turpitude. Whether your DUI offense is moral turpitude or not will depend on the factors surrounding your case. It will also depend on the way the court interprets your case. You need an experienced DUI attorney who is familiar with the California Vehicle Codes and Penal Codes to handle your case.
Denial of Admission Due to DUI
If you commit a DUI offense, the offense may be used against you when seeking re-entry into the United States. This is especially so if the DUI offense qualifies as a crime of moral turpitude. If you apply for a visa in the United States, and you have a DUI crime on your record, you may need to undergo a medical examination and submit the results.
After the medical examination, if the results indicate that you are addicted to drugs or alcohol, you may not gain re-entry into the US. The Center for Disease Control and Prevention (CDC) may review the medical report issued by the physician. However, the review does not seek to overturn the decision of barring you from re-entering the United States. Before you even see a physician for a medical exam, it is advisable first to seek the help of an experienced DUI attorney. It will be possible to prepare and produce evidence to the physician indicating that you are not an alcoholic or a drug addict.
If you have a non-immigrant visa, you may not get a renewal of the visa if you have a DUI offense on your record. If you are seeking an adjustment of your status from non-immigrant to immigrant visa, your request may not go through due to an adverse DUI record. In addition to denial to adjust your status, you may face deportation for serious DUI crimes like vehicular homicide and Watson murder.
Can You Be Denied Citizenship Due To DUI?
Yes. You may not get the citizenship you have always desired if you have a DUI offense on your record. However, for a denial of citizenship, some aggravating factors must be present. In the past, the Supreme Court in California has ruled that if a person has fulfilled the DUI School, he/she should not be denied naturalization based on DUI. You can get citizenship by naturalization if you have fulfilled all the requirements of your DUI sentence.
It is important to note that if you are applying for citizenship in the US, you must have portrayed a good moral character in the past five years. This does not mean that you should perfect and should not have any offense, no matter how minor, on your record. However, you should avoid extreme offenses, including extreme DUI offenses. It is hard to get a US citizenship if you have not fulfilled the sentence or probation conditions of your DUI crime.
When are You Under the Influence?
The California Vehicle Code Section 23152 makes it punishable to operate a vehicle when:
- You have a blood alcohol concentration (BAC) of .08% or more
- You have a blood alcohol concentration of .04% when operating a commercial motor vehicle
- You are addicted to drugs, even prescription drugs and you were intoxicated at the time of operating a motor vehicle
- You were impaired by alcohol, drugs, or both at the time of operating the motor vehicle
With the help of a DUI attorney, you can challenge the prosecutor's theory of the case. If your attorney successfully proves that you were not under the influence at the time of operating a motor vehicle, you have no risk of revocation of your non-immigrant visa.
Ordinary DUI Crimes and the Immigration Law
Other than the revocation of your non-immigrant visa, ordinary DUI convictions may not have adverse immigration consequences. If your DUI offense is a misdemeanor and does not qualify as an aggravated felony, it may not have severe immigration consequences. In California, courts have maintained that a crime of DUI alone is not grounds for deportation/removal from the United States. Some DUI offenses that may not lead to deportation include:
- Operating a vehicle under the influence of alcohol as outlined under California Vehicle Code 23152 (a)
- Operating a vehicle with a blood alcohol content (BAC) of .08% or more as outlined under California Vehicle Code 23152 (b)
- Operating a vehicle under the influence of alcohol and causing an injury as outlined under California Vehicle Code 23153
It is important to note that the offenses mentioned above may lead to deportation under some circumstances. If you face a conviction for another crime based on the same incident or if you have prior convictions on your record, you may face deportation. If the total sentences handed over to you for all your offenses add up to more than five years, you may face deportation.
You are more likely to exceed five years of total sentencing if you are facing felony DUI charges. Under California law, every fourth DUI conviction within ten years is a felony. For a felony DUI offense, you may face up to three years in jail. If you combine this period with the sentences for prior DUI convictions, you will easily exceed the 5-year sentence limit, and this could lead to deportation/removal.
Watson/DUI Murder is a Crime of Moral Turpitude
Driving under the influence of alcohol may not qualify as a crime of moral turpitude even if someone else dies. In addition, most DUI crimes in California do not qualify as aggravated felonies. For a crime to be an aggravated felony, the Immigration and Nationality Act must define the crime as such. However, there is an exception to the crime of Watson murder or DUI murder.
You may face Watson murder charges if you operate a vehicle under the influence and it is evident you acted with malice aforethought. Malice aforethought also goes by the name implied malice. You can be guilty of implied malice if you intentionally commit an offense like driving under the influence of alcohol. To be guilty, the nature of the offense or the probable consequences of the offense should be dangerous to human life.
At the time of committing the offense, you must have been aware of the nature of the offense as dangerous to human life. It must also be evident that you acted with conscious disregard for human life. Watson murder qualifies as both an aggravated felony and a crime of moral turpitude. Therefore, if you are facing Watson murder charges, you are both deportable and inadmissible in the United States.
DUI of Drugs and Immigration Law
Unlike a simple DUI offense, which may have no immigration consequences, DUI of drugs is different. For a conviction of drug crime under California law, you are both deportable and inadmissible. Under California law, a DUI of drugs involves intoxication resulting from consuming/using an illegal substance. It is for this reason that a DUI of drugs conviction subjects you to removal from the US.
However, there is a different definition of controlled substances under California and federal drug laws. This means that for a conviction under California drug laws, you may not face deportation even if the drug is on the federal list.
However, you would still have to fight the drug charges in court. You may decide that rather than fight DUI of drugs charges, you better plead guilty or no contest. This would have less severe immigration consequences.
DUI with a Child in the Car
You may face adverse immigration consequences for operating a vehicle under the influence in the company of a child. You are much more likely to face severe immigration consequences if the prosecutor charges you with child endangerment under Penal Code 273 a.
Unlike normal DUI offenses, an offense under California's child endangerment law may count as a crime of moral turpitude. You may face severe charges for intentionally exposing a child to danger. Under the Immigration and Nationality Act, knowingly exposing a child to danger may lead to removal or deportation.
However, neglect child endangerment may not serve as enough ground for deportation. This entails placing a child in a situation where his/her health or well-being may be endangered. This offense may not be as intentional as knowingly exposing a child to danger. Therefore, neglect child endangerment is not a crime of moral turpitude.
Critics argue that any charge under California Child Endangerment Law Penal Code 273 a PC should not be grounds for deportation. However, you should not attempt to go it alone, especially if you hold a non-immigrant or immigrant visa. You need an experienced DUI attorney by your side.
DUI and Good Moral Character Determination
If you are seeking to change your immigration status in the United States, the law requires you to portray a good moral character. You may have to exhibit good moral character if you are seeking US citizenship through naturalization. You also have to show good moral character if you are seeking cancellation of removal from the US. If you have committed one or two DUI offenses, they may not have a negative impact on the determination of good moral character. However, with multiple DUI convictions, it may be hard to prove that you are a person of good moral character. The government may conclude that you are a habitual drunkard.
It is important to note that being a habitual drunkard is not the same as being an alcoholic. In itself, alcoholism is not a determinant of moral character. It is your conduct during the period under examination that counts.
Contact a San Jose DUI Attorney Near Me
Non-Immigrant Visa DUI offenses come with severe immigration consequences. Even if you hold an immigrant visa, you may still face adverse penalties upon committing a DUI offense. If you are currently facing DUI charges, you risk losing your rights to reside in the US. You may also lose the chance to gain US citizenship. The San Jose DUI Law Firm can assist. Contact us at 408-777-6630 and speak to one of our attorneys today.