Criminal Law Question for Nyclex

[softvirgo]

Nyclex you helped me before and answer my posts for convictions of DUI and Public Intoixication.

You told me that these are not deportable offense neither I am inadmissible to United states.

Nyclex i was reading on internet and some other posts that it could be a problem on health related ground for alcoholism. DO you think it is possible.

Pleas e reply.

 

[softvirgo]

Nyclex Please Reply

I really nee dur help.

 

[NYClex]

This is what the law says:

Exclusion for Physical or Mental Disorders

Under INA §212(a)(1)(A)(ii), aliens are excludable if they have been determined in accordance with the regulations of the Secretary of Health and Human Services in consultation with the Attorney General:


to have a physical or mental disorder and a history of behavior associated with the disorder that may pose or has posed a threat to the property, safety or welfare of the alien or others; or

to have had a physical or mental disorder and a history or behavior associated with the disorder that may pose or has posed a threat to the property, safety or welfare of the alien or others and which behavior is likely to recur or lead to other harmful behavior.


This ground does not specifically refer to alcoholics or alcoholism (it did prior to 1990). Nevertheless, according to Note 6.3 to §40.11 of the FAM, alcoholism constitutes a medical condition. Evaluation for alcohol abuse or dependence is included in the evaluation for mental and physical disorders with associated harmful behavior.

An alcoholic is not ineligible to receive a visa unless there is current, or a history of, harmful behavior associated with the disorder which has posed or is likely to pose a threat to the property, safety, or welfare of the alien or others. A conviction for driving while under the influence of alcohol has been determined by CDC to constitute evidence of medical disorder with associated harmful behavior.

In light of the above, it is possible that your two convictions could render you excludable under this ground. Of course, the USCIS would have to believe that your behaviour was likely to recur or lead to other harmful behavior before you would be found excludable.

If there is an alcoholism problem you should discuss this with an immigration attorney. There is a waiver you might be able to get, for this you probably would have to show some kind of successful treatment.

 

[softvirgo]

NYCLEZX But I have found this further --------- What you say ???????

First of all mine is only one Alcohal related Driving arrest
______________________________________________________________________
USCIS Issues Memo Regarding Inadmissibility For DUI

The USCIS issued a memo providing policy guidance in determining inadmissibility under the health-related grounds of the Immigration and Nationality Act (Act) in cases where an applicant for an immigration benefit has a significant record of alcohol-related driving incidents.

The USCIS stated that in the course of adjudicating benefit applications, Adjudication Officers frequently encounter criminal histories that include arrests and/or convictions for alcohol-related driving incidents such as driving under the influence (DUI) and driving while intoxicated (DWI). The USCIS stated that although these histories may or may not rise to the level of a criminal ground of inadmissibility, a record of criminal arrests and/or convictions for alcohol-related driving incidents may constitute prima facia evidence of health-related inadmissibility as a physical or mental disorder with associated harmful behavior. The USCIS stated that its officers should determine that a health-related ground of inadmissibility exist based upon the findings of a USCIS civil surgeon's medical examination. Where a USCIS civil surgeon's mental status evaluation diagnoses the presence of alcohol abuse or alcohol dependence, a Class A medical condition is certified on the Form I-639 Report of Medical Examination of Alien Seeking Adjustment of Status, the USCIS officer should then determine that the foreign national is inadmissible based upon this conclusion.

The USCIS continues that some applicants may fail to report or may underreport alcohol-related driving incidents in response to the USCIS civil surgeon's inquiries. Where these incidents results in an arrest and they are subsequently revealed in a criminal history record check resulting from a routine fingerprint check, the USCIS officer may require the applicant to be reexamined by the USCIS civil surgeon. The reexamination would be limited to a mental status examination specifically considering the record of alcohol-related driving incidents.

The USCIS cautions its officers that only applicants with a significant criminal record of alcohol-related driving incidents that were not considered by the USCIS civil surgeon during the original medical examination should be referred for reexamination. Significant criminal record of alcohol-related driving incidents include:

One or more arrests/convictions for alcohol-related driving while the driver's license was suspended, revoked or restricted at the time of the arrest due to a previous alcohol-related driving incident;
One or more arrests/convictions for alcohol-related driving where personal injury or death resulted from the incident;
One or more convictions 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; and
Three or more arrests/convictions for alcohol-related driving where one arrest or conviction was within the preceding two years.
________________________________________________________________________

 

[NYClex]

well, that is pretty clear, isn't it. It is as I said, up to the USCIS to determine if someone has an alcohol related problem or not.

You really should discuss this with an attorney who can take a look at the details of your case.

 

[softvirgo]

But Sir as in Memo

Everwhere they have used Alcohal related driving incidents and not INCIDENT. that signifies more than one but I am having only one alcohal related driving incident.

the other one was not driving.

So do u think that one still apply in my case.