On January 16, 2004, a memorandum was issued by William R. Yates, Associate Director for Operations of U.S. Citizenship and Immigration Services (USCIS) of the Department of Homeland Security (DHS) regarding health-related grounds for inadmissibility for immigration applicants who have a "significant record of alcohol-related driving incidents."
The memo "reiterates the authority of DHS field offices to require that certain applicants for immigration benefits with a history of alcohol-related driving incidents be re-examined by a civil surgeon to ensure that they are not inadmissible on health-related grounds." In plain terms, immigration applicants with a record of driving accidents which are alcohol-related may be asked to get another medical examination to determine if the individual has a health problem which makes him/her inadmissible.
Section 212(a)(1)(A)(iii) of the Immigration and Nationality Act (INA) states that an alien is inadmissible if he/she is determined "to have a mental disorder and associated behavior that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others." Interpretations by the Health and Human Services (HHS) secretary state that alcohol abuse/dependence resulting in alcohol-impaired driving may serve as a basis for such "harmful behavior."
While criminal histories, such as DUI and DWI, may not be enough to prove grounds of inadmissibility based on criminal record, these incidents may, in fact, constitute evidence of health-related inadmissibility. The memo defines "a significant criminal record of alcohol-related driving incidents" for this purpose as:
"One or more arrest/conviction for alcohol-related (DUI/DWI) while the driver's license was suspended, revoked or restricted at the time of the arrest due to a previous alcohol-related driving incident(s).
One or more arrest/conviction for alcohol-related driving where personal injury or death resulted from the incident(s).
One or more conviction for alcohol-related driving where the conviction was a felony in the jurisdiction in which it occurred or where a sentence of incarceration was actually imposed.
Two or more arrests/convictions for alcohol-related driving within the preceding two years.
Three or more arrests/convictions for alcohol-related driving where one arrest or conviction was within the preceding two years."
Some individuals may not report (or underreport) their alcohol use during the medical exam for immigration purposes with a civil surgeon. In cases where the criminal history and medical examination report show conflicts in reports of alcohol-related driving incidents, DHS may require a medical re-examination, limited to a mental status evaluation specifically considering these incidents.
The memorandum emphasizes "the determination of a Class A medical condition [classified as grounds for inadmissibility] is wholly dependent on the medical diagnosis of a designated civil surgeon. Only applicants with a significant criminal record of alcohol-related driving incidents that were not considered by the civil surgeon during the original medical examination should be referred for re-examination."
An additional section of the memorandum relates to "similar scenarios" where there is evidence that may indicate inadmissibility due to a mental disorder with associated harmful behavior that was not considered in the original medical evaluation. The memo states that "such evidence includes, but is not limited to: a prior finding of inadmissibility due to a mental disorder; a history of institutionalization for a mental disorder; a criminal history other than drunk driving arrests, such as assaults, and domestic violence, where alcohol, or other psychoactive substance, was a contributing factor; or other criminal arrests where there is a reasonable possibility of a mental disorder as a contributing factor."
The memo "reiterates the authority of DHS field offices to require that certain applicants for immigration benefits with a history of alcohol-related driving incidents be re-examined by a civil surgeon to ensure that they are not inadmissible on health-related grounds." In plain terms, immigration applicants with a record of driving accidents which are alcohol-related may be asked to get another medical examination to determine if the individual has a health problem which makes him/her inadmissible.
Section 212(a)(1)(A)(iii) of the Immigration and Nationality Act (INA) states that an alien is inadmissible if he/she is determined "to have a mental disorder and associated behavior that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others." Interpretations by the Health and Human Services (HHS) secretary state that alcohol abuse/dependence resulting in alcohol-impaired driving may serve as a basis for such "harmful behavior."
While criminal histories, such as DUI and DWI, may not be enough to prove grounds of inadmissibility based on criminal record, these incidents may, in fact, constitute evidence of health-related inadmissibility. The memo defines "a significant criminal record of alcohol-related driving incidents" for this purpose as:
"One or more arrest/conviction for alcohol-related (DUI/DWI) while the driver's license was suspended, revoked or restricted at the time of the arrest due to a previous alcohol-related driving incident(s).
One or more arrest/conviction for alcohol-related driving where personal injury or death resulted from the incident(s).
One or more conviction for alcohol-related driving where the conviction was a felony in the jurisdiction in which it occurred or where a sentence of incarceration was actually imposed.
Two or more arrests/convictions for alcohol-related driving within the preceding two years.
Three or more arrests/convictions for alcohol-related driving where one arrest or conviction was within the preceding two years."
Some individuals may not report (or underreport) their alcohol use during the medical exam for immigration purposes with a civil surgeon. In cases where the criminal history and medical examination report show conflicts in reports of alcohol-related driving incidents, DHS may require a medical re-examination, limited to a mental status evaluation specifically considering these incidents.
The memorandum emphasizes "the determination of a Class A medical condition [classified as grounds for inadmissibility] is wholly dependent on the medical diagnosis of a designated civil surgeon. Only applicants with a significant criminal record of alcohol-related driving incidents that were not considered by the civil surgeon during the original medical examination should be referred for re-examination."
An additional section of the memorandum relates to "similar scenarios" where there is evidence that may indicate inadmissibility due to a mental disorder with associated harmful behavior that was not considered in the original medical evaluation. The memo states that "such evidence includes, but is not limited to: a prior finding of inadmissibility due to a mental disorder; a history of institutionalization for a mental disorder; a criminal history other than drunk driving arrests, such as assaults, and domestic violence, where alcohol, or other psychoactive substance, was a contributing factor; or other criminal arrests where there is a reasonable possibility of a mental disorder as a contributing factor."