Client Approval: 212(d)(3) Waiver, F-1 Visa and Driving Under the Influence (DUI)

212(d)(3) Non-Immigration Waiver Approved for DUI

I recently prepared and submitted a 212(d)(3) non-immigrant waiver on behalf of a Brazilian client.  She subsequently received approval for extension of her F-1 visa.  My client was previously arrested for driving under the influence of alcohol while inside the United States.  During her visit to see family in Brazil, she applied for extension of her F-1 student visa.  She was informed by the U.S. consulate that she would have to undergo a medical examination.  At the medical examination, she was classified as having a “Class A” condition due to the recency of the DUI conviction and strict Technical Guidelines of the Center for Disease Control and Prevention.  Consequently, she was informed that she would be inadmissible to the United States based on being subject to the health ground of inadmissibility pursuant to INA Section 212(a)(1)(A)(iii)(II):

Any alien who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services in consultation with the Attorney General)–…(II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which  behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior…is inadmissible

My client is an outstanding graduate student who is the recipient of a prestigious tuition scholarship, has received numerous honors and awards in the past, and is involved in a variety of extracurricular activities related to her field of specialization.  This was her first DUI conviction and she completed her Diversion Agreement program in full including paying the court fee; completing a drug and alcohol assessment and recommended treatment program; attending a victim impact panel;  and not using any drugs or alcohol during the term of her Diversion Agreement program.  By completing the Diversion Agreement, she is scheduled to have the DUI conviction dismissed by the court in 2014.  However, she was scheduled to begin the academic semester in the fall of 2013.

I prepared a comprehensive 212(d)(3) non-immigrant waiver  in the form of a legal brief discussing the three legal factors set forth by Matter of Hranka, 16 I&N Dec. 491 (BIA 1978).

In the case, Matter of Hranka, 16 I&N Dec. 491 (BIA 1978), the Board of Immigration Appeals reversed a district director’s denial of a waiver application filed by a Canadian woman who had been deported for engaging in prostitution and admitted to previous heroin use.  She filed her application only two years after having been deported.  She requested entry to visit relatives and engage in various tourist activities.

In overturning the district director’s decision to deny the application, the BIA accepted as proof of rehabilitation letters from the applicant’s mother, and the principal of the high school the applicant had attended, who is a psychologist.  It held that the applicant’s reasons for entering the United States need not be compelling.  The BIA articulated three criteria for granting a waiver under INA 212(d)(3)

1.      The risks of harm in admitting the applicant;

2.      The seriousness of the acts that caused the inadmissibility; and

3.      The importance of the applicant’s reason for seeking entry.

 Both Department of State and the Foreign Affairs Manual specify that any nonimmigrant may request a waiver as long as his or her presence would not be detrimental to the United States.  They provide that “while the exercise of discretion and good judgment is essential, generally, consular officers may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.” See 22 CFR 40.301 Foreign Affairs Manual (FAM) 40.301 N3.  Furthermore, the Admissibility Review Office has confirmed that it will follow and adhere to Matter of Hranka in adjudicating requests for INA 212(d)(3) waivers.

In my client’s case, I addressed each of the factors laid out by Matter of Hranka while emphasizing the importance of the studies she was pursuing (which held direct ramifications for benefiting the welfare of communities within the United States); her successful completion of all aspects of her DUI Diversion Agreement Program; her track record of academic excellence and achievement which would be derailed if she missed the start of her fall academic semester; the potential consequences of missing the start of her fall academic semester, which included loss of her tuition scholarship; and her history of law-abiding and ethical behavior which was supported by numerous affidavits from her professors and colleagues.

More importantly, I argued in the alternative that my client should not be deemed subject to the health ground of inadmissibility since INA Section 212(a)(1)(A)(iii)(II) applies to those whose “behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior…”  I set forth arguments and supporting documents demonstrating that there is no likelihood of my client’s DUI recurring, given the importance she places on her studies, her history of good conduct, and other evidence of complete rehabilitation.

Based upon these factors, my client was approved for the F-1 extension and is now in the United States successfully continuing her studies with no loss of school time whatsoever.