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2019 Update on US Immigration Rules – Drink and Drug Driving Consequences

July 17, 2019 by in category Drink Driving, Drug Driving, News with 0 and 0

Most visitors to the USA travel on the Visa Waiver Program. To do this you usually have to obtain an online ESTA (Electronic System for Travel Authorization) for a fee.

We posted an article about the impact of a drink driving arrest on your freedom to travel to the States back in 2017. However, recent news articles about more strict criterion has led to us revisiting this issue as it is a common concern for people who make contact with us.

We regularly recommend seeking expert advice on the issue from a specialist in US immigration law, Daniel Parisi. He is happy to respond to emailed enquiries if you are unsure of how an arrest or conviction could affect you.

Below is an interview with Daniel where we asked him common questions about the impact of a drink or drug driving arrest that many of our clients ask us:

Q: Is it correct that the US Authorities are able to use an individual’s social media posts to deny entry to the country?
A: Yes. They are searching people’s social media at the borders so if they find anyone talking about use of drugs, or anything relating to drugs, they certainly do raise that as an issue. The real problem is that there is now a “reason to believe standard”. So if a Government Official “has reason to believe” that you are involved in either drugs use, certainly drugs trafficking, they can refuse you, just based on their reason to believe, and that goes for the embassy too.

Something that may seem relatively minor to the average Joe Bloggs on the street, for example, bringing a little bit of marihuana from California where it is legal, into Utah, where it’s not, will be classed as drug trafficking, and so you can be refused a VISA even if you were not convicted of any offence. Therefore, if they look at your Facebook and they find that there is anything suggesting drug supply/use across states, they can refuse you entry under the reason to believe standard.

Q: Isn’t it optional/voluntary to provide social media account details?
A: With an ESTA it is still optional, but there was a change very recently which means that you must now provide details of any social media account you’ve ever had, even if they are no longer in use, on all VISA applications.
Q: The offence of drug driving is throwing up issues for many otherwise law abiding drivers being that there is a zero tolerance approach to drugs like cannabis etc. So someone could have a drug driving conviction when they are not drug trafficking or even impaired when driving. How much of an issue will this be if someone with a drug conviction wishes to visit the US?
A: It’s going to be a huge problem. Drug driving conviction has the element of possession of drugs in it, because, even if you possessed them internally, this will be a problem for ESTA as well as for VISA, and the applicant is going to need to apply to the Department of Homeland and Security, for a waiver, and those take about 6 months.

While a drug driving case is pending, even if your client is challenging the drug driving allegation, they cannot go to America on an ESTA, because the question on ESTA is whether you have ever been arrested or convicted. So because you will have been arrested, you cannot travel on ESTA.

When you make the application for the VISA, it is discretionary on the part of the Embassy Officer to issue you the VISA or not. We are seeing cases where if your prosecution for drug driving is imminent, within the next couple of months, they will not issue you the VISA, until they can see the outcome of your criminal prosecution.

If the conclusion of the criminal prosecution is not going to be reasonably imminent, they could issue the VISA but declare it for a shorter period of time, so that you can only travel until you have your hearing.

They do routinely refuse VISAs on the basis that they think you may reoffend in the USA.

If found not guilty for drug driving, they look to see whether it was the driving offence that was acquitted, or if there was any mention of whether or not there was separate drug possession charge.

If there was driving offence acquitted but there is a drug possession charge that was not acquitted, then the same rules that are in place for anyone who has been convicted of drug possession.

If the entire offence is drug driving and the entire offence was acquitted, then the person still cannot  travel on ESTA, because there has been an arrest for an offence involved controlled substance, but they should not have an issue getting VISA because they were not convicted of the offence.

Q: What about a drink driving case. Will our clients be denied entry if they have a pending prosecution or conviction for drink driving?
A: You can still travel pursuant to an ESTA but if you need to apply for a VISA, one offence within the past 5 years or 2 convictions in your entire life, and you will have to see a panel position. That’s where the problem can arise as the panel position, especially in London, can conclude that if you were convicted of drink driving, and if you had anything to drink, within a year of that offence, that’s irresponsible behaviour and they can, if they think you are harm to yourself or others, based on your use of alcohol, require the embassy to refuse the VISA based on the medical finding.

There has been a change in the disease control guidelines that says if you have a drink driving conviction any alcohol use within the past year, is a pattern of abuse.

This will lead the doctor to a finding that you have committed a behaviour that is harmful to yourself or another person, and they will require the embassy to refuse the VISA.

Q: Are you able to help people with their VISA applications if they face a drink or drug driving conviction?
A: Absolutely! We see it more and more and we see it more and more in the States as well, so I have a much higher number of clients than ever before, who are especially who are foreign students in the US.

The situation where someone lives in a State where marijuana is legal and they drive across the State lines even without possessing it, but they drive erratically, they get pulled over, and the Officer asks them about drug use, and they say ‘Yes I smoked 6 hours ago’, and they get arrested for drug driving. So it is not an importation or smuggling charge, because there is nothing in their possession, but it leads to drug driving offences more and more.

Also anything relating to the cannabis industry in the US is completely illegal for the foreign nationals. So we have to tell people routinely that they cannot invest in anything to do with cannabis, even paraphernalia, they could be refused a VISA.

It is completely illegal for any foreign national to associate with any cannabis industry. If you go to a legal cannabis dispensary as a foreign national, as a tourist, as a foreign student, even in states where it is legal, they take copy of your passport because you need photographic identification to be able to buy marijuana legally. However, this would be reported and they will actually revoke your VISA for having engaged in illegal activity, because it is illegal on a Federal level.

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