DWI Arrest Could Have Significant Immigration Consequences, According to U.S. State Department

passport stampAmerica, as the saying goes, is a nation of immigrants, meaning that most Americans living today are descended from people who came here from another country. People still come to New Jersey and elsewhere in the country from all over the world. Traveling or moving to the U.S. usually requires a visa issued by the federal government. Aside from foreign diplomats and consular officials, the laws of the U.S. fully apply to anyone with a visa, and certain legal troubles can have a significant impact on a visa holder’s ability to remain in the U.S. The Department of State (DOS) uses a process known as “prudential visa revocation,” which allows it to revoke a person’s visa if they are arrested for driving while intoxicated (DWI). This could apply even if the person is never convicted of DWI.

Visas generally fall into two categories:  immigrant visas and nonimmigrant visas (NIVs). Immigrant visas, commonly known as “green cards,” allow people to become permanent residents and possibly apply for naturalization as U.S. citizens. The government issues NIVs to people to come to the U.S. for a particular purpose, such as a job or school. NIV holders must return home when their visas expire.

Federal immigration law identifies multiple categories of people who are “inadmissible” to the U.S., meaning that the government may not issue them visas. These include a history of prior immigration violations, convictions for certain “aggravated felonies,” national security concerns, and “health-related grounds.” These grounds apply to both immigrant visas and NIVs, but NIVs are generally more susceptible to revocation. The DOS and its consular officers have the authority to revoke a NIV “at any time, in [their] discretion.”

DWI is not considered a “crime of violence,” according to the Supreme Court’s decision in Leocal v. Ashcroft in 2004, and therefore it is not an “aggravated felony” rendering a visa holder inadmissible or deportable. The government can still seek to revoke a visa on other grounds, based on a DWI conviction.

One of the “health-related” grounds for inadmissibility involves behavior associated with “a physical or mental disorder…that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others.” It also includes a “history of behavior” associated with such a disorder if “is likely to recur or to lead to other harmful behavior.” A Department of Homeland Security (DHS) policy manual states that “alcohol use disorders” may fall under this category of inadmissibility, as evidenced by “a record of criminal arrests and/or convictions for alcohol-related driving incidents.”

The DOS Foreign Affairs Manual goes further, giving consular officials the discretion to revoke NIVs “based on driving under the influence (DUI)” and establishing a procedure for “prudential revocation” for a DWI arrest or conviction. An NIV holder whose visa has been prudentially revoked must present themselves to a DOS official to offer evidence as to why their visa should be reinstated. Whether the person may remain in the U.S. during this process appears to be within the discretion of DOS officials.

If you are facing an alleged DWI charge in New Jersey, a DWI attorney with experience in this state’s court system can help you understand your rights and guide you through the municipal court process. Evan Levow has dedicated his law practice entirely to representing DWI defendants. Contact us today online or at (877) 593-1717 to schedule a free and confidential consultation with a member of our team.

More Blog Posts:

DWI Convictions from Outside New Jersey May Count Toward Priors Leading to Criminal Charge for Driving with a Suspended License, New Jersey DWI Attorney Blog, May 10, 2016

DWI Conviction History Brings Parent to the Attention of New Jersey Child Protection Agency, New Jersey DWI Attorney Blog, April 28, 2016

Consequences of DWI Conviction in New Jersey Extend Beyond License Suspension, Could Include Loss of Employment Benefits, New Jersey DWI Attorney Blog, April 19, 2016

Photo credit: Kristoferb (Own work) [Public domain], via Wikimedia Commons.