QUESTION: My F1 visa renewal application was denied. I had a DUI in 2006 for which I paid all fines. I am pursuing my Masters Degree in California and have 6 classes left. I came to Brazil for vacation and to renew my student visa. I didn’t know DUI was considered a crime, so on the form I didn’t indicate that I was arrested. The consular officer kept asking me if I had any problem with immigration and I said no, because I really didn’t think immigration had anything to do with DUI. I really thought it was a traffic violation, especially since I had already received a visa following the incident. When the officer asked me if I had any problem with the law, I immediately told him about the DUI. Even though I admitted the DUI, the officer denied my visa application, saying that I was lying. I really wasn’t trying to do any fraud or anything. I know they know everything and would never try to lie to them. I’m going to try again next week. Is there a chance a get the visa?
REPLY: You are in a very difficult situation, as a charge of fraud from a Consular officer is very difficult to overcome. Based upon the facts you provided, however, it sounds as though your alleged “fraud” was neither willful nor material. Under the Immigration and Nationality Act (“INA”), Section 212(a)(6)(C)(i) renders inadmissible anyone who seeks to procure a visa by fraud or by willfully misrepresenting a material fact.
In order for your misrepresentation to have been willful, it must have been made with knowledge of its falsity. An accidental or inadvertent statement, or one that is the product of honest mistake is not considered to be a "willful" misrepresentation. 9 FAM § 40.63, note 5.1 (the reference to “FAM” refers to the Department of State Foreign Affairs Manual, which is what Consular officers refer to for guidance regarding the application of the immigration laws). In order to find the element of willfulness, it must be determined that the alien was fully aware of the nature of the information sought and knowingly, intentionally, and deliberately made an untrue statement. 9 FAM § 40.63, note 5.1. In light of your confusion, it sounds as though your misrepresentation was not made willfully.
Another essential element of fraud or misrepresentation under INA § 212(a)(6)(C)(i) is that the statements are “material.” Kungys v. United States, 485 U.S. 759 (1988). The test of whether a misrepresentation was material is whether it “was predictably capable of affecting, i.e., had the natural tendency to affect, the official decision” of the agency. Id. at 771. Further, “[a] misrepresentation is not material, when made during proceedings for admission into the United States, if the alien would not have been denied a visa or excluded had he told the truth.” Matter of S-&-B-C-, 9 I. & N. Dec. 436 (BIA 1960) (citing Matter of G--- M, 7---40, Atty. Gen., Apr. 2, 1956, p. 74).
In most cases, a first-time, non-aggravated DWI or DUI offense does not amount to a ground of inadmissibility to the United States. Assuming that yours was the typical, first-time DUI offense, it would not have affected your admissibility to the U.S. even if you disclosed it. Therefore, failing to disclose the offense was not a material misrepresentation.
Based upon the information you provided, it sounds as if there may have been an improper decision made in your case. Before providing you with a specific strategy for approaching the situation, however, I need to know more about your case. Assuming that there are no aggravating factors, I might recommend a second appointment at which you present the Consular official with a legal brief discussing the legal reasons why your case does not involve a fraud/misrepresentation under INA § 212(a)(6)(C)(i), which is something we have done in the past. As stated above, Consular findings are nonreviewable, which means that there is no appeal of the decision. This makes it extremely difficult to overturn a Consular finding of fraud. For that reason, I encourage you to not rush back into the Consulate for a second appointment without being thoroughly prepared.
If you would like to submit addition information and receive a complete professional analysis, I suggest calling our office to set up a consultation.