Author Archives: Norka M Schell

DUI AND IMMIGRATION

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By: Norton Tooby

Posted by:  Norka M. Schell

DUI and Immigration

 

Driving under the influence cases are very common, and fortunately do not in general trigger adverse immigration consequences. Assuming the case involves driving under the influence of alcohol, as opposed to drugs, a simple DUI conviction does not trigger deportation or inadmissibility. If the person is on probation for this offense, or any other, he or she is temporarily ineligible to naturalize until probation has ended. This type of conviction can constitute a moral turpitude conviction only if the offense includes not only DUI elements but also elements of knowingly driving on a suspended license. It is no longer considered to be a crime of violence aggravated felony, regardless of sentence. It can constitute a negative discretionary factor, and thus contribute to denial of discretionary immigration benefits. Aggravated DUI convictions and health-related issues are covered below.

 

Three aggravated types of driving under the influence convictions are driving under the influence of drugs, multiple DUI convictions (i.e., DUI with one or more prior DUI convictions), and DUI causing injury.

 

DUI and Drugs

 

Driving under the influence of drugs can sometimes constitute a controlled substances conviction, which can trigger deportation, inadmissibility, and bar some forms of relief from removal.  This is not always the case.  First, the state definition of controlled substances may differ from the federal list.  Only offenses involving controlled substances on the federal list will trigger adverse immigration consequences.  State convictions that definitely involve (or may involve) a drug that is on the state list but not on the federal list will generally not be considered a controlled substances conviction under immigration law.  Second, some states, such as California, may prohibit driving under the influence of “drugs” that are not even on the state controlled substances list.  See California Vehicle Code § 312 (“drugs” for purposes of driving under the influence of drugs includes any substance at all that may adversely affect the ability to drive, even if it is not on the state controlled substances list).  The record of conviction must be consulted to see whether it identifies the specific substance involved, and that substance must be on the federal list of controlled substances before the state conviction can constitute a controlled substances conviction under immigration law.

 

Multiple DUI Convictions

 

Since one DUI conviction (not involving a federal controlled substance) does not trigger adverse immigration consequences. Multiple convictions of simple DUI alcohol do not do so either.  Therefore, a DUI with one or more prior DUI convictions do not trigger adverse immigration consequences.

 

DUI with Injury

 

A conviction of DUI causing injury does not constitute a crime of violence aggravated felony or crime involving moral turpitude, and so does not directly cause adverse immigration consequences.  This type of conviction, however, may be considered as evidence that the person has a dangerous health condition that may constitute a medical ground of inadmissibility.  See “Health-Related DUI Issues,” below.

 

Being a habitual drunkard constitutes a statutory bar to showing Good Moral Character under INA § 101(f)(1).  Multiple DUI convictions can contribute to finding a noncitizen is a habitual drunkard.  Good moral character is a prerequisite to obtaining many different immigration benefits, such as naturalized U.S. citizenship.

 

Driving under the influence convictions can contribute to a finding of inadmissibility based on a physical or mental disorder – alcoholism – if it has caused a threat to the property, safety, or welfare of the alien or others under INA § 212(a)(1)(A)(iii). Simple DUI convictions generally do not cause a problem, but DUI with injury or other evidence a DUI has caused harm can trigger inadmissibility under this ground.

HIRING FOREIGN NATIONAL AND EXPORT RULE

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Employers that decide to hire foreign nationals affected by the Department of Homeland Security (DHS) and export control requirement must implement sophisticated procedures related to that hiring.

In addition of obtaining proper visa status for prospective foreign national employees, employers must be aware of the circumstances in which employing a foreign national implicates federal export control regulations. Business in the high-tech, communications, and defenses contracting fields are particularly likely to encounter situations where employees perform jobs that require access to commodities or information in the workplace that are controlled by export regulations. In some cases, where a foreign national is involved the business must obtain a license before allowing such person access to information. Failure to obtain the proper license exposes both the employer and the alien to government sanctions, including civil and criminal penalties and denials of export privileges.

Subpoena in Immigration Court

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Although noncitizen in removal proceedings lack the full constitutional protections of criminal defendants or the broad discovered tools of civil litigants in Federal Court, the Immigration and Nationality Act and accompanying regulations provide a number of protections related to evidence. Aliens have an explicit statutory right to present evidence and cross-examine adverse witnesses. Evidence is not always easy to obtain, but aliens may need the resources of the court to exercise this right or to help meet their burdens of proof and production.

Immigration Judges may issue subpoenas for the attendance of witnesses or the production of documents during the removal proceedings. Immigration Judges may also order depositions taken for the testimony of essential witnesses who are not reasonable available for the hearing.
Subpoenas can be a useful tool in Immigration Court to build the record and ensure that the parties have a full opportunity to present their case and cross-examine witnesses.

CHANGE OF NONIMMIGRANT STATUS

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When a person in the United States in one nonimmigrant visa (temporary) status decides to engage in a primary activity permitted only under a different nonimmigrant (temporary) status – for example, a B-2 tourist decides to attend school, or an F-1 student decides to take up other than school-approved employment – the nonimmigrant visa has two options:

1.  Visa Processing at a United States Consulate Abroad
Under this option, the person leaves the United States, applies for the appropriate visa at a United States consulate abroad, and then re-enters the United States in the correct nonimmigrant classification. This option, often referred to as “consular processing.”
 
2. Change of Status Application 
The second option entails an application to the United States Citizenship and Immigration Services (USCIS) to request a change of status to a different nonimmigrant classification more appropriate to the proposed activity.
In short, some of the critical factors in determining whether an alien is eligible to change his status include: (a) whether the status the alien currently holds permits a change of status; (b) whether the alien is maintaining a valid status; (c) the timing of the application; and (d) the status to which the alien wishes to change. Each of these factors (among others) may render an alien ineligible to apply for a change of status, requiring the alien to consular process if she or he wishes to obtain a new immigration status.

ARTICLE 3 OF THE U.N. CONVENTION AGAINTS TORTURE

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The United Nations (U.N.) Convention Against Torture and Other Cruel, Inhuman or Degrading  Treatment or Punishment (the Convention Against Torture or Convention) is a powerful tool to prevent the removal of persons who fear torture upon return to their countries, bu who are ineligible for asylum and withholding of removal. Article 3 of the Convention prohibits the United States from expelling, returning, or extraditing “a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

More the 10 years after the United States signed the Convention and almost five years after the United States became a full party to the treaty, Article 3 finally was incorporated into domestic immigration law.

SEEKING PERMISSION TO REAPPLY FOR ADMISSION AFTER DEPORTATION OR REMOVAL

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The deportation or removal of an alien from the United States erects time period bars to the United States of five, 10, 20, or lifetime depending upon the basis for the prior deportation or removal. While Illegal Immigration Reform and Immigrant Responsibility Act of 1996, increased the length of time the alien must remain outside the United States after a prior removal, it did not alter the mechanism by which an alien can seek permission to return prior to the expiration of those bars on a discretionary basis.

If the alien has remained outside the United States for the required time frames, it is not necessary to file an application for consent to reapply for admission after deportation or removal. The alien seeking admission, a visa or adjustment of status must present proof to the adjudicating officer that he or she has remained outside the United States  for the appropriate time frame and if there is not satisfactory proof, he mus submit an application for permission to reapply.
For aliens seeking admission on a nonimmigrant visa, the regulations provide use of either a waiver or an “Application for Permission to Reapply for Admission into the United States After Deportation or Removal.
Finally, an alien can seek advance approval if he or she is in the United States and is expected to leave under an order of deportation, but has a good basis for returning to the United States in the future. It is a “conditional” approval contingent upon the alien’s satisfactory departure and does not waive any inadmissibility for proceedings instituted subsequent to the day permission is granted.

Temporary Procted Status – Parent’s Continuous Physical Presence & Continuous Residence Cannot Be Imputed To A Child

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Matter of Ingrid Carolina DUARTE-LUNA, Respondent
Matter of Bessy Beatriz LUNA, Respondent
Decided June 20, 2014
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
A parent’s continuous physical presence and continuous residence in the United States cannot be imputed to a child for purposes of establishing the child’s eligibility for Temporary Protected Status.
In a decision dated August 25, 2009, an Immigration Judge granted respondents’ applications for Temporary Protected Status (“TPS”) section 244(a) of the Immigration and Nationality Act, 8 U.S.C. § (2006). The Department of Homeland Security (“DHS”) has appealed that decision. The respondents oppose the appeal. The appeal will sustained, and the record will be remanded to the Immigration Judge.
The respondents, who are natives and citizens of El Salvador, are two
sisters whose mother was granted TPS in 2001. Both respondents arrived
in the United States as minors on August 24, 2003, and were served with
notices to appear 2 days later. They subsequently filed applications for
TPS in 2005, and removal proceedings were administratively closed while
their applications were pending. The respondents’ applications were
denied and their appeals were dismissed. They subsequently filed renewed
applications, all of which were denied. Removal proceedings were then
recalendared… Click here.

INFORMATION TO US CITIZENS RE. THE WORLD CUP 2014

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  • Ensure you have a valid U.S. passport. If your passport will expire before or during your trip, renew it now.  Don’t forget to sign your passport – in ink – and complete the emergency information page. Note: To be issued a Brazilian visa, your passport must be valid for at least six months after the date you submit it for a visa. You should apply for a new U.S. passport if your passport’s date of expiration is prior to January 14, 2015.
  • Obtain a Brazilian visa.  U.S. citizens are required to have a visa for travel to Brazil. Visas for U.S. citizens normally are valid for 10 years and cost $160. However, ticket holders for World Cup Games are eligible for a temporary special visa, free of charge. You must apply for your visa through the Brazilian Consulate in the United States that is closest to where you live.  Apply for your visa well in advance, as processing will likely take longer the closer it gets to the Games!
  • If you’re a parent traveling solo with a child (or children) under the age of 16, we recommend taking along a completed DS-3053 “Statement of Consent” form(s), signed by the other parent and notarized no more than 90 days before you depart.  This will be a big help in the event your child’s passport is lost while you’re in Brazil.
  • Check your overseas medical insurance coverage to ensure you are covered abroad and that you have coverage for medical evacuation in the event of a health emergency. Medical capacity and infrastructure in certain areas of Brazil, including some host cities, are untested in handling the volume of visitors expected for the games.
  • Enroll with the Smart Traveler Enrollment Program (STEP). This will enable the Embassy to keep you up to date with important safety and security announcements, and help your friends and family get in touch with you in an emergency.
  • Visit the Department of State’s Country Specific Information page on travel to Brazil.

FALSEHOOD REGARDING COMPREHENSIVE IMMIGRATION REFORM

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Falsehood: By enforcing the laws already on the books we can fix our broken immigration system.

The truth: No. Virtually every senior security official to look at this problem concurs that we cannot simply “enforce our way out of this problem.” Our failed enforcement policies offer glaring evidence that more enforcement is an empty promise, not an effective solution. During the past decade, we tripled the number of agents on the border, quintupled their budget, toughened our enforcement strategies, and heavily fortified urban entry points. Yet, during the same time period there have been record levels of illegal immigration, porous borders, a cottage industry created for smugglers and documents forgers, and tragic deaths in our deserts.
Effective enforcement policies are critical to restoring integrity and legitimacy to a system that currently lacks both, but our current laws are so divorced from this country’s economic and social realities that to think we will be able to restore order and legality without reform of those laws is naive. The apt enforcement analogy is to consider what would happen if we lowered the speed limit our highways to 25 mph. We would create a nation of lawbreakers and an impossible enforcement challenge for our highway patrols.
Enforcement will work only when our laws reflect the economic and social realities of 21st century America. By establishing legal migration channels, we can reduce the enforcement targets so that we focus our resources on those who mean to do us harm, not on those who are filling our labor market  needs or reuniting with their close family members. Our current immigration policy exhibits the same fundamental flaws we saw with laws enacted during Prohibition. It’s not realistic, it doesn’t reflect our needs, and it makes good, law-abiding individuals into lawbreakers. In short, it’s bad policy.
Comprehensive immigration reform is needed to make legality the norm and restore legitimacy to the law. This will help us to differentiate between the law-abiders and the law-breakers and will allow for a more efficient allocation of enforcement resources.

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