DUI and Your Immigration Status: Non-Citizens and Visa Holders

• •For a non-citizen, the outcome of a DUI case can affect a visa, a green card, a naturalization application, or later travel. The criminal court's result is not the only thing that matters.
• •The U.S. Supreme Court has held that criminal defense counsel must advise a non-citizen client about clear deportation risks of a plea. Ask your defense lawyer whether they have considered immigration, and consider a separate immigration attorney.
• •Consider getting advice before traveling abroad or filing an immigration application, because either can lead immigration authorities to review your record.

Sources

• Padilla v. Kentucky, 559 U.S. 356 (2010)

• •Federal law makes non-citizens deportable or inadmissible for certain categories of crimes, including crimes involving moral turpitude and aggravated felonies. A simple first-offense DUI is not automatically in those categories, but aggravating facts such as injury, a child in the car, or driving with a known suspended license can change the analysis.
• •Repeat offenses, felony DUI, and longer sentences can raise further risk. Classification differs by federal circuit and by the exact state statute you are charged under.
• •Inadmissibility can also arise from a health-related ground tied to a physical or mental disorder with associated harmful behavior, which can be considered in some alcohol cases.

Sources

• 8 U.S.C. 1182 (grounds of inadmissibility)
• 8 U.S.C. 1227 (deportable aliens)

• •Immigration law has its own definition of conviction. A guilty plea or finding of guilt combined with some form of punishment or restraint can count as a conviction even if the state later calls it deferred, dismissed, or sealed.
• •That means state-law relief such as deferred adjudication or expunction may not erase the event for immigration purposes. Ask counsel before accepting such a deal.

Sources

• 8 U.S.C. 1101(a)(48) (definition of conviction)

• •To naturalize, you must show good moral character during the statutory period. USCIS policy says two or more DUI convictions in that period create a rebuttable presumption that you lack good moral character.
• •A person who is or was a habitual drunkard during the statutory period cannot establish good moral character. USCIS looks at the pattern, not just a single event.
• •Even a single DUI can be weighed, and USCIS reviews the record as a whole, so disclose it truthfully on forms rather than omit it.

Sources

• USCIS Policy Manual, Vol. 12, Part F, Ch. 5 (Adjudicative factors)
• 8 U.S.C. 1101(f) (good moral character)

• •A visa holder (student, work, or visitor) can face visa revocation or a denied future visa application after an alcohol-related arrest or conviction. The consular officer has discretion.
• •If your visa is revoked while you are in the United States, your status may be affected differently from when you are abroad. Ask an immigration attorney how this applies to your visa type.
• •Some work and student statuses also have program-level rules about arrests. Check with your sponsor or school's international office.

Sources

• 22 CFR 41.122 (revocation of visas)
• U.S. Department of State Foreign Affairs Manual, 9 FAM 302.1

• •If you are in removal proceedings, relief such as cancellation of removal has eligibility rules that a DUI conviction can affect.
• •Keep every court document: charging papers, plea forms, sentencing orders, and proof of completed classes. Immigration attorneys need them.

Sources

• 8 U.S.C. 1229b (cancellation of removal)