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Op-Ed: The Removability of Bieber-Fever

The following Op-Ed by WVU Law students Katherine O. Wilson & Dustin S. Blankenship appeared in The Dominion Post (Morgantown) on Feb. 9, 2014. Dustin and Katherine are student attorneys with the West Virginia University Immigration Law Clinic

Like it or not, Justin Bieber has become a household name in the United States. With catchy song lyrics, delicate features, and an instantly recognizable high-top fade haircut, the young artist who began his ascent to the red carpet by way of a globally accessible medium (YouTube), is now navigating uncertain legal waters.

On January 23, 2014, the nineteen year-old pop sensation was arrested and charged with drunk driving, resisting arrest, and driving without a valid license in Miami Beach, Florida. While the press gobbled up the scandal, scant attention was paid to one very important detail- Justin Bieber is not a United States citizen- and thus his legal presence in this country is circumspect.

Perhaps the better inquiry is why little attention was given to Mr. Bieber’s immigration status. Sure, he’s a teenage heartthrob, but what happens when a non-citizen faces criminal charges in the United States? 

According to Time, Justin, a Canadian national, currently holds an O-1 non-immigrant visa. This allows him to work in the United States, and the visa is renewable for one-year extensions, indefinitely (or until he decides to return to Canada). This type of non-immigrant visa is designed for those who have “extraordinary ability in the sciences, arts, education, business, or athletics, or have an extensively documented record of extraordinary achievement in motion pictures or television.” Needless to say, no one you and I know is likely to possess this crème de la crème pass into the country: while there is no cap to the number of people who may receive this visa, it is an incredibly expensive and highly sought after status.

Importantly, under the Immigration and Nationality Act (INA) a non-citizen may be removable (commonly referred to as deportable) from the U.S. for committing certain criminal offenses. These crimes range the gamut, from aggravated felonies like rape, sexual abuse of a minor, and theft, to misdemeanor offenses under state law, or any regulation relating to possession of a controlled substance. In FY 2011, the United States deported 188,382 people on criminal grounds alone. While Mr. Bieber has not been convicted (he posted bond), the elephant in the room still stands: if we strip away the celebrity, forget the fame, should Justin Bieber [or a similarly situated individual] be deported?

The answer is not so obvious- it depends on how the crime of DUI is classified. The Supreme Court of the United States has determined that a non-citizen convicted of DUI under a state statute that does not define the offense to include a mens rea element- a “guilty mind”-and only allows for negligent conduct, may not be deported. Leocal v. Ashcoft, 543 U.S. 1 (2004). Leocal is especially effective here because the underlying statute was the very same Florida law that Mr. Bieber is charged with violating. Lucky for him, the Florida statute does not contain such a mens rea element, per Leocal; thus Bieber, as well as similarly situated individuals, would likely not be removed for violating this statute.

However, he is not out of hot water yet. Under the INA, a crime of moral turpitude may also result in removal. Recall, Bieber is currently facing DUI, resisting arrest, and driving on a suspended license charges. However, he also is under investigation for misuse of a police escort, egging a house and causing $20,000 in property damage, as well as previous (now abandoned) charges for speeding and spitting on a police officer in L.A. Under some jurisdictions,[i] resisting arrest constitutes a crime of moral turpitude under laws similar to those of Florida. Additionally, if a second crime of moral turpitude were to be introduced (and a conviction found for both), Bieber would certainly be removable.

The second cause for alarm is the issue of admission into the U.S. According to recent news, Justin left the country to vacation in Panama City, Panama, after his release on bond. Crimes involving moral turpitude can also lead to inadmissibility, that is, the government may bar certain non-citizens from entering the United States. Even absent a conviction, Bieber still may be denied entry- the amount of discretion given to custom and border control agents is high. Upon his return to the US, Justin can expect to be questioned. One of these questions that can lead to denial of entry is whether or not he has committed a felony. If Justin admits to committing these acts he is accused of, he could wind up out of luck. The odds of this happening, however, are next to none.

The immigration community will be watching Mr. Bieber’s case closely- if Florida decides not to prosecute. Absent prosecution, there is no deportable offense. According to the ACLU, the number of detained aliens in the US has been as much as 429,000 in recent years. At the present time, over 250 detention facilities can house up to 34,000 aliens per night. Many of these individuals are likely sitting in detention for no less than that with which Bieber is presently charged. Although Bieber will likely emerge unscathed, perhaps, this opens up the discussion of immigration reform for those thousands of similarly situated individuals who are not celebrities—those husbands, fathers, mothers, wives, and children who are here in the United States trying to make a decent living. Maybe, , just maybe, some good can come from Justin Bieber’s night of debauchery.

[i] Cano v. Attorney General (11th Cir, Feb. 2013.) Unlike Bieber, Cano was found to have two such crimes and he was removed from the country.

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