An arrest for DUI (Driving Under the Influence) or DWI (Driving While Intoxicated) may have serious consequences for your immigration status, even if you are not convicted. If you are convicted of DUI or DWI, you may be barred from demonstrating good moral character for purposes of cancellation of removal or naturalization. Even worse, if your conviction constitutes a crime of moral turpitude, you may be found inadmissible or deported and removed from the United States.

The U.S. State Department may revoke your visa if you are arrested for DUI or DWI even if you have not been convicted. Remember, a visa is stamped in your passport and allows you to enter the U.S. in a certain nonimmigrant category, and is valid for a specific period of time. Once you are admitted to the U.S., you are then in a particular immigration status. The electronic I-94 states your immigration status and the period of time for which you are admitted. So a visa and an immigrant status are two different concepts.

If you are arrested for DUI (Driving Under the Influence) or DWI (Driving While Intoxicated) in the U.S. and your case is pending in criminal court, the US State Department may revoke your visa even if you have not been convicted. The US government takes arrests for DUI and DWI very seriously. If you are already in the U.S., a visa revocation does not mean you automatically lose your immigration status. It means, if you depart, you will not be able to re-enter because you do not have a valid visa.

In general, the State Department may not revoke the visas of foreign nationals who are already in the US, or on their way, but DWI and DUI are an exception. The State Dept may revoke your visa if you have a DWI or DUI related arrest or conviction within the past five years. The State Dept is required to notify the foreign national of the intent to revoke the visa, give the foreign national the opportunity to show why the visa should not be revoked, and request the foreign national to present the travel document that contains the visa.

The State Dept may ask the foreign national to appear at the US Consulate where the visa was issued. If the foreign national does appear, most likely the Consular Officer will physically revoke the visa, as well as any other valid visas the foreign national may have. If the foreign national does not appear at the US Consulate, the State Department will still enter the information into their databases and notify DHS (Dept of Homeland Security), ports of entry such as airports and border crossings, and also the airlines of the visa revocation.

Should the foreign national want to apply for a new visa, he or she will be referred to a panel physical to be evaluated as to whether he or she has a drinking problem, and may be a danger to themselves or others. Even if an applicant is not inadmissible to the U.S. on criminal grounds, he or she may be found inadmissible on medical grounds.

If you are convicted of drunk driving, there are additional consequences. In a 2019 decision, Matter of Castillo-Perez, 27 I&N Dec, 664 (A.G. 2019), in a decision certified to himself, the Attorney General held that two or more convictions for DUI during the statutory period would create a rebuttable presumption that the foreign national lacks good moral character under INA §1101(f) for purposes of an application for cancellation of removal under INA §240(A)(b)(1). While the decision does not specifically apply to naturalization applications, an applicant for naturalization also has to show good moral character under INA §1101(f), and so it is possible USCIS will start using this same standard when deciding applications for naturalization to US citizenship. Similarly, in Ledesma Cosino v. Sessions (9th Cir 2017),, the Ninth Circuit held that substantial evidence supported the BIA’s finding that the applicant was a “habitual drunkard” and thus lacked good moral character for purposes of cancellation of removal. The BIA and the court took into account not only the applicant’s conviction but also testimony regarding at least a decade of alcohol abuse and cirrhosis of the liver.

Whether or not a conviction for DUI or DWI is a crime involving moral turpitude depends upon the particular state statute and its elements. In general, one single conviction for DUI or DWI does not constitute a crime involving moral turpitude, and does not make one inadmissible or removable (deportable) from the U.S. See, In re Torres Varela, 23 I&N Dec 78 (BIA 2001),

Arizona offense of aggravated driving under the influence, with two or more prior DUI convictions, is not a crime of moral turpitude. The specific statute under which the conviction occurred is controlling. Much depends upon whether the statute has a knowledge or intent requirement. The BIA has held that another Arizona statute, also involving multiple DUI convictions, is a crime of moral turpitude, because it prohibits driving under the influence knowing that one’s license has been suspended. Because of the knowledge requirement, that particular statute was found to constitute a crime of moral turpitude. See, Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999),   The BIA reasoned as follows: “In our view, a simple DUI offense is such a marginal crime. However, when that crime is committed by an individual who knows that he or she is prohibited from driving, the offense becomes such a deviance from the accepted rules of contemporary morality that it amounts to a crime involving moral turpitude.”

However, it is important to keep in mind that the interpretation of DWI offenses may change, especially as under the current administration the Attorney Generals have made a habit of certifying decisions to themselves and attempting to change years of precedents.

Even if a drunk driving conviction does not constitute a crime of moral turpitude, it is still a strong negative factor, and may lead an Immigration Judge or USCIS examiner to deny your immigration application in the exercise of discretion.

All foreign nationals who have been arrested for DUI or DWI must realize that this is a very serious matter, and should immediately seek help to rehabilitate themselves, by regularly attending AA or other alcohol-related rehabilitation programs and ceasing to drink. If you find yourself in this situation you will also need both a competent criminal attorney and a competent immigration attorney.

Copyright 2020 © Heidi J Meyers, all rights reserved.