In the first part of this article, we outlined how DUI offenses often trigger mandatory medical examinations for foreign nationals applying for nonimmigrant visas abroad, as well as automatic visa revocation for nonimmigrants who are already in the United States. What about U.S. permanent residents or nonimmigrants in valid immigration status who are already in the United States and who do not need visas to travel abroad? The good news is that a DUI offense, on its own, will usually not affect someone’s existing immigration status, unless there are additional aggravating factors. Federal courts have consistently held that DUI usually does not rise to the level of criminal behavior that alone could trigger removal. However, DUI often has severe consequences for those who are present in the United States without valid immigration status.
DUI as a trigger for removal (deportation) for undocumented foreign nationals
Foreign nationals without valid immigration status who are arrested for drunk driving find very quickly that DUI can have severe immigration consequences. The immigration authorities view significant misdemeanors, including DUI, among the top immigration enforcement priorities and DUI arrests have become one of the most common reasons for someone to land in removal (deportation) proceedings. All DUI offenders serve mandatory jail time and are usually picked up by Immigration and Customs Enforcement. Once in removal proceedings, they are faced with unsympathetic immigration judges with very low leniency toward DUI offenders. DUI is a serious aggravating factor that frequently tips the scale against receiving discretionary relief from removal, even for those who may otherwise be eligible to avoid deportation and remain in the United States.
DUI as an aggravating factor for U.S. permanent residents and nonimmigrants in valid immigration status
Temporary visa holders in valid immigration status and even U.S. permanent residents may be placed in removal proceedings on various non-DUI related grounds, most usually for other criminal offenses. If they also have one or more DUIs on their record, it becomes exponentially more difficult to establish that they have the requisite good moral character and convince Immigration Judges to grant discretionary relief from deportation. Even a single, non-recent DUI offense could tip the scales.
Applying for an immigrant visa at a U.S. consulate abroad to complete the permanent residence process is another example where a DUI offense can have serious consequences. Some consulates, notably the U.S. Consulate in Ciudad Juarez in Mexico, are notoriously tough on applicants with suspected alcohol or drug dependency. Even seemingly innocent admissions made during medical examination that the foreign national may be drinking, without ever being charged with DUI, could be taken as evidence of potential harmful behavior, and lead to immigrant visa ineligibility based on medical grounds. Such a medical finding not only results in immigrant visa denial but also brings the entire permanent residence process to a halt since the foreign national is then required stay in Mexico for one full year before being allowed to retake the medical examination.
DUI as a disqualifier for DACA/DAPA and aggravating factor for U visas
Sometimes undocumented foreign nationals get lucky and are not picked by the immigration authorities when charged with DUI. While they may have avoided the immediate danger of deportation, the DUI has a lasting impact that often erases any other immigration options they may have. The Deferred Action for Childhood Arrivals (DACA) program, for example, disqualifies foreign nationals with even a single DUI offense. DACA has no provision for DUI rehabilitation. This means that even if the DUI offense happened long time ago, DACA eligibility is automatically revoked. Those with current DACA who had a recent DUI are also automatically disqualified from further DACA extensions and cannot renew their work permits. The same automatic restriction will apply to the new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, when implemented, where a single drunk driving offense will automatically disqualify potential participants.
Undocumented foreign nationals who have been victims of crimes and have cooperated with the police are often eligible to apply for U visa status and eventually for permanent residence. However, U visa approval is ultimately a discretionary grant of an immigration benefit. The U.S. government has a large degree of latitude in granting U visa status and having a DUI is a serious aggravating factor that could result in denial.