DUI & DWI
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DUIs and DWIs May Lead to Health-Related Inadmissibility
William R. Yates, Associate Director for Operations at USCIS, issued a Memorandum on January 16, 2004, regarding the circumstances in which further medical examination may be required to determine if a person with alcohol-related driving arrests may be inadmissible to the U.S. on health-related grounds. This Memo was made available to members of the American Immigration Lawyers Association (AILA) on February 23, 2004.
Health-Related Grounds of Inadmissibility
Under the Immigration and Nationality Act (INA), applicants for immigrant visas, adjustment of status, and some nonimmigrant visas (such as Ks and Vs), must have medical exams to determine whether they have any health conditions that would make them inadmissible to the United States. Illnesses that result in inadmissibility include mental disorders and associated behaviors that can pose or already have imposed a threat to the property, safety, or welfare of the foreign national or others. Alcohol abuse and alcohol dependence have been defined by the U.S. Secretary of Health and Human Services to be included in these types of illnesses. The USCIS believes that a record of arrests and/or convictions for alcohol-related driving incidents may constitute prima facie evidence of health-related inadmissibility grounds.
Medical Reexamination May Be Required
The medical examination is completed by a physician on Form I-693. When the physician performs an immigration medical exam and the I-693 is initially completed, the doctor routinely asks the patient about any history with alcohol-related illness. If the responses show that there is no reason for concern, and there are no other medical issues, the doctor has no reason to classify the patient / applicant as medically inadmissible.
In most cases, applicants only have to undergo one medical examination. The Yates Memo, however, provides that a medical reexamination is needed if the applicant has a significant criminal record of alcohol-related driving incidents that were not considered by the physician during the original medical examination. A significant criminal record of alcohol-related driving incidents includes:
1. one or more arrest / conviction for alcohol-related driving when the applicant's driver's license was suspended, revoked, or restricted at the time of the arrest due to a previous alcohol-related driving incident
2. one or more arrest / conviction for alcohol-related driving when personal injury or death occurred from the incident
3. one or more conviction for alcohol-related driving when the conviction was a felony in the jurisdiction where it occurred or when a sentence of incarceration was actually imposed
4. two or more arrests / convictions for alcohol-related driving within the preceding two years
5. three or more arrests / convictions for alcohol-related driving when one arrest or conviction was within the preceding two years
The Memo expressly states that the applicant's reexamination should be limited to a mental status evaluation, specifically involving the alcohol-related events. If the physician has indicated on the originally submitted Form I-693 that these incidents were considered and no subsequent incidents have occurred, reexamination of the person will not be required. If the physician has taken the correct measures to examine the person for dangerous mental status due to alcohol-related events and determines that the person does not fit within a medically inadmissible category, the USCIS cannot second-guess or override this determination. If the USCIS objects to the doctor's determination, it may seek a review of the physician's finding by the U.S. Public Health Service. This review is limited to exceptional cases.
Other Cases Requiring Medical Reexamination
The Memo provides that medical reexamination may be required in other, similar situations where evidence is found that indicates a potential medical ground of inadmissibility that was not taken into consideration by the physician. This could include: other types of arrests, such as assault or domestic violence, where alcohol or other psychoactive substances were a contributing factor; other crimes that may indicate a mental health disorder; a prior finding of inadmissibility due to a mental disorder; or a history of institutionalization for a mental disorder. In each of these cases reexamination is only necessary if the physician has not indicated that these arrests or convictions were made known to him/her during the medical examination.
Waiver Still Available
If a person is found inadmissible due to health-related factors, s/he may still file an I-601 waiver. There is no guarantee that the I-601 waiver will be approved. In addition, the USCIS, in consultation with the public health officials of the Center for Disease Control (CDC), may place terms, conditions, or controls on the waiver, which may include the posting of a bond.
May Not Preclude Other Findings of Inadmissibility
A person who is not found inadmissible due to alcohol-related incidents may, under some circumstances, still be found inadmissible under the criminal provisions of the INA for crimes of domestic violence, aggravated assaults, or impaired driving. Many DUIs (Driving While Under the Influence) and DWIs (Driving While Intoxicated) are not deemed to be crimes of moral turpitude. It is important, however, to consult with a qualified immigration attorney who understands the criminal and immigration implications of the particular laws in the state where the charge occurred. It is always best to seek immigration advice at the time of the arrest, so that appropriate decisions can be made as to how to handle the case defense. Many people decide to plead guilty to seemingly minor offenses without considering the immigration consequences.
What to Do
The categories under which a reexamination may be required are largely circumstantial. A potential applicant for an immigrant visa, adjustment of status, or a K or V visa should consult with a qualified immigration attorney any time an arrest has occurred to determine whether criminal, and now health-related, grounds of inadmissibility may apply. People who have a problem with alcohol should seek treatment before it leads to an arrest. If an arrest occurs, they should still seek treatment to address the problem, both for personal reasons and so that they may be able to overcome any questions as to whether they have an ongoing problem which renders them inadmissible to the United States.
