Immigration Effects of Drugs and Alcohol: Part 1 DUIs

By Susanna Bogue, Esq.

There have been several recent developments in immigration law practice regarding the effects of being charged with driving while intoxicated which is known as driving under the influence (DUI) in California.

Many people who hold valid visas to work (including the E treaty visa, the L company transfer visa, and the H-1B professional worker visa), who have been arrested for driving under the influence are receiving letters informing them that their nonimmigrant visa has been revoked. The concept of the presumption of innocence before a conviction seems to have been abandoned for temporary work visa holders. Under the Department of State’s newly revised Foreign Affairs Manual, 9 FAM 302.2-7(B)(3) “Substance-Related Disorders under INA 212(a)(1)(A)(iii) – Alcohol and Other Non-Controlled Substances”, a visa can be revoked for “a single alcohol related arrest or conviction within the last five years; two or more alcohol related arrests or convictions within the last ten years; or if there is any other evidence to suggest an alcohol problem.”

If the visa is revoked, the person who departs the US will have to apply for a new one at their home Embassy or Consulate and after being denied the visa, will then be required to be referred to a panel physician for evaluation, after which (assuming the doctor determines there is no alcohol dependence and the person is not a probable “threat” to society) they will return to have the visa issued.

Obviously such a requirement will lead to delay in all cases involving an arrest for a DUI and in some cases the visa will not be reissued. If the visa is not issued and the DUI trial has not taken place, this leads to a further problem in that it is unlikely that a visitor visa would be issued to someone who has lived for years in the US even if the only reason for their trip is to fight the DUI. Once denied a visitor visa, most consulates will not reconsider their denial until at least a year has passed. Talk about a Catch-22!

According to immigration attorney Ellen Krengel, the panel doctor will request a CDT (carbohydrate deficient transfer) to see if there is long-term alcohol abuse in the blood which would show alcohol dependence. The panel doctor will also be asking 11 questions in the form of “Have you ever…” three of the eleven I’ve listed below. To read the complete list, they can be found in this June 5, 2015 Psychology Today article www.psychologytoday.com/blog/the-athletes-way/201506/what-are-the-eleven-symptoms-alcohol-use-disorder  

  Continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol.

  Important social, occupational, or recreational activities are given up or reduced because of alcohol use.

  Recurrent alcohol use in situations in which it is physically hazardous. [i.e. driving]

Someone who has recently been arrested for driving under the influence may have difficulty only answering one question with a “yes.” Ellen says the panel doctors informed a group of immigration lawyers recently that to determine Class A or B, they look for “abuse + behavior” for alcohol, and simple abuse for drugs (eliminates experimental use). If a person is determined to have a Class A medical condition, then they are ineligible for a visa. Class B determinations, while not causing ineligibility mean that the applicant may have a “serious medical condition” and might be unable to care for themselves or require extensive medical treatment or need to be institutionalized.

Note that this article is primarily covering the effects of an alcohol-related arrest for people who hold nonimmigrant (temporary) visas and who are applying for a visa outside of the US. The situation is different for permanent residents (green card holders). DUIs are not considered to be crimes of moral turpitude (CMT) and as such do not trigger removal (deportation) proceedings. 

Also, for the purposes of applying for naturalization, it is a conviction which is important, not an arrest. A conviction in California for a simple DUI normally includes a three year period of probation, during which time a person is normally not eligible to apply for naturalization. Even after the three years expire, many applications for naturalization will be denied if the most recent half of the period for good moral character (five years, or three years for spouses living with US citizens for three years) is primarily spent on probation.

Part 2 of this series will deal with the effects of marijuana use under our immigration laws.  This will be posted soon.

THE GRADUATES.

Gustavo and Saul

By Christopher Kerosky

[This article appeared in June’s issue of the Sonoma County Gazette. https://www.sonomacountygazette.com/sonoma-county-news/immigrant-stories-the-graduates-by-christopher-kerosky-june-2018]

This spring, young people throughout the United States are celebrating their graduations from high school and college.  Many of these graduates are immigrants or the children of immigrants, a tangible reminder that the American Dream still plays out every day in this country, from sea to shining sea.   

Here’s two such examples from our own County -- Saul Diaz and Gustavo Espinoza – who both graduated from Sonoma State University (SSU) in May.   I’m selfishly proud of these gentlemen, as they have both worked for me over the last 4 years, at the same time attending classes and earning their college degrees. 

Gustavo

Gustavo Espinoza is a native of Cotija, Michoacan, Mexico, a town most known for its distinctive cheese.  Immigrating to the U.S. at a young age, he grew up in Sonoma County, attending Kawana Elementary and Slater Middle School in Santa Rosa.  I first met Gustavo when he was still a student at Elsie Allen High School. He expressed an interest in law so I invited him to intern with us.  As a 17-year-old, Gustavo would show up after school and put in a few hours filling out forms and preparing cover letters.  Within months, we hired him.  

Quickly, Gustavo became so well-versed in immigration law that clients referred to him as "Licenciado Espinoza", thinking he was a lawyer.  He has a quiet commitment to helping immigrants through the stressful and intimidating process of obtaining status in this country.  Last month, after four years of full-time work and a heavy college load, “Gus” put on his cap and gown and was handed his degree from SSU in front of his proud immigrant parents.  That same night, he became engaged to his high school sweetheart, Karla, making for a memorable weekend indeed.

Gustavo plans to go to law school in the future.  But the law degree would only make it official: this guy is already a legal star in my book.

Saul

A native of  Oaxaca, Mexico, Saul Diaz came to the U.S. at age 3.  He attended Roseland Elementary School and Laurence Cook Middle School.  After graduating from Elsie Allen, Saul earned two associate degrees at Santa Rosa Junior College (SRJC)..  He also volunteered at the Graton Day Labor Center, a non-profit organization aiding immigrants in finding employment and protecting their legal rights.  Throughout high school and college, Saul worked weekends for his dad as a laborer and did some landscaping on the side.

DACA allowed Saul to get a professional job in 2013 and I hired him after his good friend Gustavo recommended him.  Saul started as a receptionist, but he quickly began to master immigration law. Over the years, we have watched Saul develop into a very knowledgeable and skillful advocate for immigrants, who now trains our newer staff members and handles complex cases. 

Two years ago, Saul transferred from SRJC to SSU.  And last month, Saul was awarded his Bachelor’s Degree from Sonoma State, a right of passage that left many of his family members and others like me very proud to know him.  Felicidades, Saul!

Myth of the uneducated immigrant.

The sky is the limit for both Saul and Gustavo.  It wouldn’t surprise me if they are powerful trial lawyers or sitting as judges on some federal court in the future. 

But their stories are not unlike many others from our County and communities across the U.S..  Immigrant youth – including large numbers of sons and daughters of Mexico -- are quietly obtaining degrees and professions, refuting the common myth about immigrants being uneducated and unassimilated.

The fact is that recent immigrants to the U.S. are more educated than those who immigrated to the U.S. at other periods of our history.  According to Fortune Magazine, over 33% of immigrants enter the U.S. with a college degree and 75% of recent arrivals have a high school diploma or higher.  Moreover, the number of immigrants with higher education has grown at more than twice the rate of the same population among the U.S. born. 

California has the largest number of college-educated immigrants with 2.5 million or 24% of all college-educated immigrants in the U.S.  Sonoma County has a large share: 28.8% of the student body of SSU and 30% of Santa Rosa Junior College is Latino and many are immigrants or the children of immigrants.  And this number is growing every year: a full 44% of the County’s school age population is Latino.

The accomplishments of young immigrants like Saul and Gustavo are the best rejoinder to all the myths and malicious rhetoric about immigrants, prevalent since the rise of Donald Trump.   I prefer to remember the words of a different national leader, Robert Kennedy, who was assassinated 50 years ago this month while running for President:

“Our attitude towards immigration reflects our faith in the American ideal. We have always believed it possible for men and women who start at the bottom to rise as far as the talent and energy allow. Neither race nor place of birth should affect their chances.”

THE TRUTH  ABOUT THE IMMIGRANT FAMILIES AT THE BORDER

By Christopher Kerosky

There is so much misinformation about the asylum seekers coming to our Mexican border, including a plethora of “alternative facts” put forth by Donald Trump. 

Our office has represented many families who went through the same process like those incarcerated at the border now and so I will try to address here some of the most common fallacies and provide some accurate information.  It’s important that the public understand why this is happening and who is to blame for a policy of separating children from their parents in our name.   

Are these immigrants all coming in illegally?

No, a large portion of these refugees are entering the U.S. border legally, seeking asylum through a legal procedure established by the U.S, by statute in 1980, and in accordance with the UN Human Rights Treaty.  This is true of all of those coming in the caravans of desperate refugees from Central America, organized by humanitarian organizations.  Donald Trump has condemned these caravans, but the fact is these people are following our own laws that provide a procedure for refugees to seek asylum at our border.

According to the Washington Post, some of the others who have been separated from their children were also seeking asylum but were apprehended because they went to the wrong port of entry or crossed the border in desperation when they were turned away at a port of entry.   

The majority of those seeking asylum are from Mexico, Honduras and El Salvador, all countries ravaged by violence at the hands of criminal organizations.  Extortion, kidnappings and even murder are very common in many of the areas from which these refugees come.  Virtually all of the asylum seekers I’ve met reported that their families were targets of this violence and were threatened with more violence if they stayed in their communities.

Are these immigrants able to stay forever in the U.S. just by coming to the border?

No, all applicants for asylum have to go through a rigorous interview process to establish they have a credible fear of persecution in their home country before they are ever allowed to leave the custody of the border officials.

Those who fail these interviews are deported. 

Those who succeed in proving to a DHS official that they credible fear of persecution still have to go through a trial before an immigration judge in deportation proceedings.  There, they are subject to a higher standard of proof, requiring that they prove have a well-founded fear of persecution based on religion, race, nationality, political opinion or social group; if they fail to prove this to a judge, they are deported.

Are the Democrats responsible for this family separation policy?

Donald Trump continues to falsely blame Democrats for an administration policy that has led to more than 2,000 children being separated from their parents at the U.S. border.

The family separations began earlier this year after the Administration announced a so-called “zero tolerance” policy of referring all border crossings for federal criminal prosecution, which leads to children being separated as their parents are sent to jail.

A law intended to protect children from trafficking was  passed by a Democratic Congress and signed into law by George W. Bush in 2008.  It establishes certain due process rights for unaccompanied minors .  That is apparently the law Donald Trump is referring to; however that law does just the opposite. 

Isn’t there an alternative to incarcerating them and separating them from their children?

Yes, even if the U.S. government insists on criminally prosecuting all these immigrants, I believe these families could be given electronic ankle bracelets or other devices commonly used by immigration or law enforcement to ensure a person will attend future court hearings and not disappear. 

There has never been an adequate explanation from the Trump Administration why these refugees cannot be given electronic devices to track their whereabouts, instead of incarcerating them at greater cost to our government, not to mention the cost to their children who are taken away from them.

Why Sanctuary is Important

By Christopher A. Kerosky

[This article was published in the May issue of  SONOMA COUNTY GAZETTE]

https://www.sonomacountygazette.com/sonoma-county-news/immigrant-stories-why-sanctuary-is-important-by-christopher-kerosky-may-2018

Between 2006 and 2013, hundreds of our neighbors in Sonoma County, California were arrested by our Sheriff’s Department, even though they were guilty of no serious crimes.  Some were stopped because of a traffic violation or a broken headlight.  Because they did not have a driver’s license, they were then handcuffed, jailed and detained sometimes indefinitely.  Their cars were often impounded.  In many cases, they were charged only with driving without a license or other misdemeanors; sometimes no charges were filed at all.  Yet they were not allowed to go free, even if they paid a bond.

After up to 48 hours of incarceration in our county jails, these Sonoma County residents were handed over to the Immigration and Customs Enforcement (ICE) to commence their deportation from the United States.  They were often young, sometimes students in college or even high school.  Others were young mothers or fathers, with small children at home.  Sometimes they were driving their children to school or coming home from work. 

Our Sheriff at the time claimed he had no choice under the law but to arrest, detain and transfer these neighbors of ours for deportation.  Many were removed from the U.S. as a result, leaving behind U.S.-born children, spouses and extended family.

I can tell you this happened because I represented hundreds of them in deportation court.  I saw the way this County policy devastated many families in our community.  This occurred to hundreds of thousands of immigrants in counties throughout California and across the country.

Why did this happen?  Because our County participated actively in the Secure Communities Program run by ICE back then, and now revived under Trump. 

What stops this from happening today?  Our state and county sanctuary policies. Nothing more.

Sanctuary is a good thing.

With the Trump Administration’s constant drumbeat of verbal attacks, financial sanctions and lawsuits against sanctuary communities, many in our state are questioning whether “sanctuary” is a good thing.   As someone who has seen the trauma that our prior policies caused immigrant families here, I can tell you: sanctuary is a good thing.   

It’s vital that we don’t return to the days when thousands of our state residents were rounded up and deported; to when just driving to the store or the school created serious risk for undocumented immigrants.

TN Visas: the NAFTA visa for Canadian and Mexican citizens.

By Christopher Kerosky

There is a special visa for Canadians and Mexicans that gives them an advantage over applicants from other countries in obtaining such working visas.  It is called the NAFTA Professional Visa or “TN” visa and it allows Canadians or Mexican citizens to come with less difficulty than persons from other countries, provided they have the required training and education. 

The TN visa was created by the North America Free Trade Agreement (NAFTA) in 1994, to allow for the exchange of qualified professionals from Canada, Mexico, and the United States. Canadian citizens may apply for the TN visas at the U.S. Embassy and Consulates.

What do you need to prove?

An applicant needs to prove that they have a college education or the equivalent amount of education and experience. 

There must also be a employer/sponsor who is willing to employ them.  Mexican or Canadian applicants must work in a prearranged full-time or part-time job, for a U.S. employer. Self employment is not permitted.

The sponsor must provide a letter of employment or a contract which details the professional work that the applicant is being offered in the United States. The position must be of a “professional” as that is defined by NAFTA and the immigration regulations.  The State Department and the Embassies are very strict on what is considered a “professional” degree and so it is important that the job fit their defined list of “professional jobs”.

Persons whose job offer is not considered “professional” will be denied the visa.

What Jobs Are Considered Professional?

There is a list of jobs that are considered professional.  This list includes but is not limited to the following:

·       accountant,

·       architect,

·       computer systems analyst and other computer professionals,

·       doctors, dentists and other medical professions;

·       economist,

·       engineer,

·       forester,

·       graphic designer,

·       hotel manager,

·       industrial designer, interior designer,

·       librarian,

·       lawyer,

·       mathematician,

·       various scientists,

·       social worker and

·       teachers at the elementary, high school and college level. 

Each of these occupations has their own degree requirements.

What Sort of Documentation is Required?

The application requires evidence that the applicant has the required educational qualifications and job experience.  This includes a copy of the applicant’s college degree and letters from previous employers showing the applicant’s experience in the professional field.

If you’re the applicant is married or has unmarried children under 21, they can come with him. 

What is the Procedure to apply for TN visas?

Once all the required application forms and documentation is ready, the person applying needs to schedule an appointment with the Embassy or apply at the border in some cases.   

During the interview, the applicant will present all of the documents.  The applicant needs to be prepared to describe his/her qualifications for the job, professional experience, and the nature of the work offered. 

The officer considering the case will then make a decision after the initial interview.

Once inside the U.S., the visa can be extended by the applicant as long as the job remains in place.

Conclusion.

Professionals from other countries typically come to the United States on H1B visas.  Because there is annual limit on H1B visas and that limit has already been reached for fiscal year 2019, presently there are no H1B visas available until October 1, 2019.  The TN visa is a way for Mexicans and Canadians to avoid this backlog and come to the U.S. relatively easily, provided they have a job offer and the required qualifications.

WARNING: The above is a summary discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

OBTAINING OR RENEWING A U.S. PASSPORT

By Susanna Bogue, Esq.

In 2007 laws were changed requiring all US citizens to have a US passport (or US passport card) to travel to Canada and Mexico. Prior to then, US citizens were allowed to travel showing their birth certificate or certificate of US citizenship or even a driver’s license. Now, the combination of many ten year passports expiring as well as the fact that there are five states (IL, MN, MO, NM, WA) and a territory (American Samoa) that are not in compliance with the Real ID Act (which means in January 2018 their residents will not be able to use a driver’s license to board a plane), and the fact that many countries will not allow a traveler to enter if they have less than six months on their existing passport, the US Department of State announced over a year ago that they would like US citizens to apply even before their current passport expires if they want to avoid not being able to travel out of the country.

Fortunately, most people holding a ten year passport expiring in 2018 are eligible to renew by mail using Form DS-82. Please consider starting the renewal as soon as possible, even if you still have some months left on your current passport. If your plans include travel this summer, it would be a good idea to pay the extra expedite fee so that you will have the new passport with its new number to input into your airlines ticket information.

To renew by mail you need the following:

1)     You need to submit your old passport which had to be issued within the past 15 years.

2)     Your old passport cannot be damaged beyond normal wear and tear.

3)     You must have been over 16 when your old passport was issued.

4)     Your old passport must be issued in your current name or if your name has changed, you are able to submit an original or certified copy of your marriage certificate, divorce decree, or court order.

If any of the above criteria are not met, you are not eligible to renew by mail and must submit instead Form DS-11 to a passport facility or passport agency office.

5)     Provide one 2x2 photograph. Staple the photo to the application using four staples vertically in the corners as close to the outer edges as possible. Do not bend the photo. As of last November, you must remove your glasses for the photo. https://travel.state.gov/content/passports/en/passports/photos.html

6)     Fee. The fee for those 16 and over is $110 for a passport book (i.e., not a passport card. A passport card can only be used for travel to Canada and Mexico and the fee for renewing one is $30). Checks and money orders payable to the “U.S. Department of State” can be used for renewals.

7)     When mailing your passport application, please use a large envelope so the application does not need to be folded. Mail using the US Postal Service and request a trackable delivery method such as Express Mail, Priority Mail with Signature Confirmation or Delivery Confirmation. In my experience, it is worth it to pay for Express Mail service. 

8)     If you live in California and are using the routine processing, you mail the above to the National Passport Processing Center, PO Box 640155, Irving, TX 75064-0155

9)     If you are requesting Expedited Service, also enclose a check or money order for $60 payable to the “U.S. Department of State” and write “EXPEDITE” on the outside of the mailing envelope and mail it to National Passport Processing Center, PO Box 90955, Philadelphia, PA 19190-0955

For travel later this summer, I would suggest paying the $60 expedite fee to avoid any problems or delays, especially as we get closer to the summer months.

Please also be aware that children under the age of 16 are issued US passports which are only valid for five years and their renewal cannot be done by mail, it must be done in person.

Whether you are a newly naturalized US citizen, or a US citizen for many years, you will need to have your US passport before returning home or for other international travel.

To get more information on applying for a US passport, whether you are renewing an old passport or applying for the first time, check out the US Department of State’s website at https://travel.state.gov/content/passports/en/passports.html

The US government suggests that if you are eligible to renew by mail, that is the best way. Adults who reside in the US must apply to renew their passport by mail.

WHAT TO DO IF YOU ARE ARRESTED BY ICE. Part One. 

by Christopher Kerosky, Esq.

ICE has promised to target California for raids on undocumented immigrants.  It is important that people know they have the right to defend their deportation in court.  In many cases, it can result in an immigration judge deciding that the immigrant can stay in this country and even obtain permanent residence. 

I have written a series of articles about what an immigrant can do if they or their family member is arrested and put into deportation proceedings.  This is Part 1; it covers what to do after you are taken into custody by ICE, how to get out of custody and how to defend your deportation in court. 

The Important Things to Know if you or your family member is taken by ICE.

Many people believe that if they are undocumented and arrested, then they have no choice but to go home.  That is simply not the case.  With skillful and thoughtful representation, many undocumented immigrants can successfully avoid deportation.

It is very important that undocumented immigrants and their families know what to do in this situation.  The important thing is not to sign any document which agrees to your deportation or voluntary departure.  Instead, get legal advice and it is very often the case that you can get bonded out of custody very soon.

How does one get a family member out of ICE custody once they’ve been taken? The answer to this question depends upon the situation.  The government is required to hold non-citizens in jail if they were convicted of certain very serious criminal charges.  If he was not convicted of any crime or if it was a misdemeanor crime, then usually the person can be “bonded” out of jail if the bond set by the court is paid.  The amount of the bond varies significantly depending upon the judge and the facts of the case.  The best thing is to get your relative out of jail, if you can, and then hire a lawyer to protect his rights in court. 

Even if the relative is bonded out of jail, he will be required to go to immigration court and explain to the judge will he should not be deported.  If you ignore the court case once he is bonded out, a deportation order will be issued by the court, the bond money will be lost, and he will probably lose any chance of ever becoming legal in the United States.

It is often possible to proceed with a claim for relief in court, such as cancellation of removal, asylum, adjustment of status, or other claims.  These arguments apply in many situations where the undocumented person arrested has family here legally or has been a victim of a crime, or a victim of domestic violence, or can prove that he would be harmed if he is returned to his home country. 

These will be covered in subsequent segments of this series.