Immigration Advise for Criminal Arrests

You were arrested for DUI (CA Vehicle Code section 23152 or 23153), but the case got dismissed because the police officer made a mistake.  Or maybe you were arrested for domestic battery (penal code 243E or penal code 273.5), but the District Attorney didn’t file charges after your husband sent a letter saying it was all a misunderstanding.  Or perhaps the DA did file charges, but then dropped them after you stayed out of trouble for 6 months and completed anger management classes.  Now you needs to travel overseas.

You should be good to return, right?  At least if you give her something from the court saying the charges were not filed or dismissed?  Maybe not.  Not all immigration consequences require a conviction.  And a noncitizen admitted on a nonimmigrant visa, such as the H-1B work visa, E-2 investor visa, F-1 student visa, B-1/B-2 visitor visa, etc., is in a more precarious situation than a permanent resident (green card-holder).

This blog post discusses the health grounds of inadmissibility that potentially apply to a nonimmigrant arrested for DUI or domestic violence.  Consult with an immigration attorney for advice on the consequences specific to a particular client.

Prudential Revocation: Cancelling a nonimmigrant visa for suspected ineligibility or for virtually any reason at all if done in the exercise of the Secretary of State’s discretion.

DUI Arrests

An arrest or conviction for driving under the influence of alcohol (or another crime committed while under the influence) raises the issue of whether a noncitizen is inadmissible to the U.S. for having a mental disorder with an associated harmful behavior.  This potential ground of inadmissibility can cause problems for both visa applicants and nonimmigrants who already have a visa.

Visa Applicants

A consular officer will refer a nonimmigrant visa applicant for a medical exam by a designated physician (panel physician) if the applicant has one alcohol-related arrest or conviction in the last 5 years, 2 or more alcohol-related arrests or convictions in the last 10 years, or other evidence to suggest an alcohol problem.  9 FAM 302.2-7(B)(3) (unless otherwise noted, all citations are to the Department of State Foreign Affairs Manual, available at https://fam.state.gov/Fam/FAM.aspx).  Alcohol-related arrests include not only DUI, but also public intoxication and other arrests where alcohol was a factor.

At the medical exam, the physician will determine whether the applicant is “Class A,” which is regulation-speak for medically ineligible for a visa.  There are various grounds of medical ineligibility (inadmissibility).  The one relevant to an alcohol-related arrest is section 212(a)(1)(A)(iii) of the Immigration and Nationality Act, which makes a noncitizen inadmissible if he or she has:

• A current mental disorder with an associated harmful behavior, or
• A past mental disorder with an associated harmful behavior, if the harmful behavior is likely to recur or lead to other harmful behavior in the future.

9 FAM 302.2-7(B)(1).  The mental disorder must be one recognized by the current version of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5 at present).  The disorder could be Alcohol Use Disorder (Mild, Moderate, or Severe), Depression, or any other recognized disorder so long as there is an association between the disorder and the applicant’s harmful behavior.  See 9 FAM 302.2-7(B)(2), (5)(a).  Harmful behavior consists of actions that cause “(a) Serious psychological or physical injury to the alien or to others (e.g., suicide attempt or pedophilia); (b) A serious threat to the health or safety of the alien or others (e.g., driving while intoxicated or verbally threatening to kill someone); [or] (c) Major property damage.”  9 FAM 302.2-7(B)(2).

The panel physician applies his or her clinical judgment to determine whether a visa applicant has a mental disorder with an associated harmful behavior.  See 9 FAM 302.2-7(B)(2).  In making that determination, the panel physician knows the visa applicant has a motive to minimize or misrepresent her alcohol use and any negative consequences of it.  The physician therefore does not necessarily take the applicant’s answers at face value.   This injects a significant amount of subjectivity into the diagnosis.  Whether the nonimmigrant engaged in harmful behavior can also be a subjective determination if there was no conviction and the nonimmigrant denies that she actually drove under the influence or otherwise engaged in harmful behavior.  The physician must decide whether to believe the applicant or not.  Even more subjective is the physician’s determination of whether the harmful behavior is likely to recur in the future.  Crystal ball, anyone?

What is clear, though, is that avoiding a Class A finding is more difficult if the DUI or other alcohol-related offense occurred within the last 12 months.  Why?  Because a current mental disorder with an associated harmful behavior will always make the visa applicant Class A and thus inadmissible.  9 FAM 302.2-7(B)(7).  Sustained, full remission of a mental disorder with an associated harmful behavior requires showing that for the past 12 months (minimum) there has been either: no substance use, no mental disorder, or no associated harmful behavior.  9 FAM 302.2-7(B)(2).  So, if the panel physician finds the visa applicant currently has a mental disorder, then her only shot at avoiding inadmissibility is to show she does not currently have an associated harmful behavior and that the harmful behavior likely will not recur in the future.  See 9 FAM 302.2-7(B)(7).  That is impossible if the applicant has a DUI or other harmful behavior within the last 12 months.  See 9 FAM 302.2-7(B)(2).

Visa Revocations

What about a nonimmigrant arrested for DUI after she receives a visa?  Well, the Department of State continues to keep tabs on nonimmigrants after visa approval.  The FBI forwards rap sheet data to it on a daily to weekly basis.  Discovery of a DUI arrest or conviction within the last 5 years will almost always result in prudential revocation of an existing nonimmigrant visa.  9 FAM 403.11-5(B).

Only offenses involving driving under the influence trigger this near-certain revocation; more discretion exists for other types of alcohol-related arrests.  9 FAM 403.11-5(B).  (Also, persons traveling on a diplomatic or official visa are not subject to the health grounds of inadmissibility, so any revocation of those visas is done on a purely discretionary basis.  9 FAM 403.11-4(C)(2).)

Unfortunately, the Department of State is not required to notify a nonimmigrant of revocation, either in advance or upon making the decision.  9 FAM 403.11-4(A)(1), 403.11-5.  In practice, visa-holders rarely seem to receive advance notice.  A nonimmigrant often does not discover that her visa is worthless until an airline denies her boarding to return to the U.S.  (Airlines must submit their passenger lists in advance and are told to deny boarding to a passenger with a revoked visa.  9 FAM 403.11-4(A)(2).  The airlines do this scrupulously because they face a fine of up to $1,000 and the cost of flying the passenger back to the country of origin if they don’t.  See 9 FAM 403.11-4(A)(2).)

The visa likely will be physically voided (cancelled) in the nonimmigrant’s passport if she goes to the consulate to inquire about why she could not board her flight.  The visa will be cancelled even more quickly if U.S. Customs and Border Protection has a presence at the foreign airport, as it does in Canada; Abu Dhabi, UAE; Dublin, Ireland; and many European countries.  One of my clients told me how this happened to him at an airport in Europe on his way back from vacation: A U.S. CBP officer (in uniform, but without a sidearm) appeared at the ticket counter, took the passport from the airline employee, ordered my client to stand 20 feet away, used a pen to cancel the visa without prejudice, and then told him to “take it up with the Embassy.”

Taking it up with the Embassy after cancellation can be a lengthy process.  It requires going through the entire visa application process again with the addition of a medical exam.  9 FAM 403.11-6(B).  The process may take anywhere from a few weeks to several months.  For example, work visa interviews in India during the summer of 2016 had to be scheduled more than 2 months in advance.  The medical exam that follows the visa interview may take a week or two, and administrative review by the consular officer upon receipt of the exam could take days or weeks longer.  This delay could result in termination of an H-1B worker from her job or an F-1 student missing the start of classes.

Domestic Violence Arrests

Arrests for Domestic Violence can have consequences for a nonimmigrant.  The arrest will result in questions the next time the nonimmigrant applies for a visa.  The nonimmigrant’s answers to the questions at the visa interview may or may not trigger inadmissibility for admission to a crime involving moral turpitude, but here I will focus on how the answers also raise the issue of medical inadmissibility.

Medical Inadmissibility – Shanghai, China

The U.S. Consulate in Shanghai now appears to require a medical exam for every nonimmigrant visa applicant who has an arrest for domestic violence.  As with DUIs, the purpose of the exam is to determine whether the visa applicant has a current mental disorder with an associated harmful behavior or a past disorder with an associated harmful behavior that is likely to recur or lead to other harmful behavior.  This development has not been previously reported in American Immigration Lawyers Association (AILA) liaison reports or message boards.  It also is not the policy at the other consulates where I practice, or at least not yet.

I learned of Shanghai’s policy the hard way.  One of my clients applied for renewal of a visa there after an arrest for misdemeanor domestic battery that was not prosecuted.  The consular officer did not find him criminally inadmissible, but referred him for a medical exam.

In addition to the standard TB and blood tests, the exam consisted of an interview by the panel physician plus two separate interviews by psychologists and a multiple-choice diagnostic test.  At least they didn’t make him do a Rorschach inkblot test!  Fortunately, the panel physician declared my client “normal” and he eventually received his visa, albeit more than a month after the visa interview.

Staff at the medical clinic stated that medical exams are now required for all visa applicants in Shanghai with a domestic violence-related arrest.  This is an unsettling development because whether a visa applicant is medically inadmissible turns on the panel physician’s subjective clinical judgment.  Thus, an “immigration-safe” result in criminal court, such as non-filing, diversion, or dismissal of the charges, provides no protection.

(Source: Scott Mossman/Immigration attorney)