Immigration and firm news

New Case on DUIs and Bond Hearings

Drinking (or using drugs) and driving has huge consequences, whether you are an immigrant or a US citizen.  Aside from the obvious health and safety risks, financial cost, and emotional hardships to families, the following immigration consequences can happen.

Non-US Citizens

For immigrants, ICE has a policy of arresting people for DUIs (through detainers at jails) and confining defendants at immigration detention centers. You will be detained without bond!  It doesn’t matter if you are undocumented, hold a valid visa, or a green card! The US Department of Homeland Security and the US Justice Department view DUIs as a public safety threat and a sign of possible alcoholism or drug abuse if a person has a history of multiple DUIs. While a DUI arrest or conviction is not necessarily a ground of inadmissibility or deportability unless there is property damage or personal injury involved, being detained without bond can be an awful experience for most people. Even if one asks an Immigration Judge for bond, it is not guaranteed that it will be given or that the bond amount will be reduced. To get a bond reduction, the immigrant has to show he or she is not a flight risk and not a danger to the community.

In a new case issued today, Matter of Siniauskas, 27 I&N Dec. 207 (BIA 2018), the Board of Immigration Appeals held that even if the immigrant can show family and community ties, an Immigration Judge can consider the seriousness of the DUI and still deny bond altogether. “….[F]amily and community ties generally do not mitigate an alien’s dangerousness…..Driving under the influence is a significant adverse consideration in determining whether an alien is a danger to the community in bond proceedings.” Cases seem to have varying outcomes whether the person has a current, recent or past DUI, whether there are muliple DUIs, whether accidents were involved, and depending upon the judge involved.

For nonimmigrants in valid visa status, the US State Department has a policy to revoke your visa if you are merely arrested for DUI “or similar” offenses. (See 9 FAM 403.11-3A(U)(5)).  Do you plan to party Friday night and have some drinks? Then will you get into your car and drive away? You better think twice about that.  By Monday your visa may be revoked if you get pulled over for DUI.  This occurs nowadays even if you have not had your first criminal court hearing yet, and even if your case is ultimately dismissed.  This means the next time you leave the USA, you will need to apply for a new visa. You will need to show a consular officer what happened in the case. It is possible you may be referred to a physician’s panel to determine if you are an alcoholic or drug abuser, depending upon your history and the facts in the case. There are no waivers for alcoholics or drug abusers. Some consular officers view multiple DUIs as a sign of alcoholism.  (And, don’t forget, any use, possession, sale or other activity related to marijuana, even in states or countries where it is legal, are not recognized by the federal government. )

Elsewhere in immigration law, a history of DUIs or related offenses can be used as a negative factor for various types of applications that require the adjudicator to decide a case in the exercise of discretion (balancing the good facts with the bad facts). A lesser included offense like negligent or reckless driving may or may not be immigration safe depending upon the application sought and the state/country where it takes place.

US Citizens

Similarly, US citizens with DUIs may be barred from entry into other countries.  Actually, Canada’s laws are particularly harsh for Americans and others with DUIs and related convictions.  Applicants for admission to Canada should consult with a Canadian immigration lawyer. They may need a certain amount of residence time outside Canada or may need to apply for permanent rehabilitation.

Finally, failing to disclose a prior arrest or conviction for DUI, even if dismissed, can lead to misrepresentation issues when applying for immigration benefits in many countries. In sum, think carefully before you take that first drink.  Will it be worth risking your current or future immigration status or ability to travel to other countries?