http://www.post-gazette.com/sports/pirates/2017/12/02/jung-ho-kang-visa-dui-conviction-south-korea-pirates-mlb-winter-meetings-2017/stories/201711300189
Here's what we know about Jung Ho Kang's visa situation
BILL BRINK
Pittsburgh Post-Gazette
Pirates general manager Neal Huntington will soon enter the second consecutive winter meetings during which he’ll field questions about Jung Ho Kang’s legal issues and availability, while working to find a replacement to spell David Freese if Kang can’t get in the country one year after his DUI arrest in South Korea.
A year ago Saturday, at 2:48 a.m., Kang crashed his rented BMW through a guard rail and nearly hit cars on the opposite side of the street in Seoul. Because of the resulting DUI conviction, Kang’s third in South Korea since 2009, the 30-year-old Pirates third baseman spent the entire 2017 season on Major League Baseball’s restricted list. He collected neither salary nor service time.
A South Korean court gave him an eight-month suspended sentence in March, and he lost his appeal in May. Kang agreed to participate in a joint panel’s recommended treatment plan.
One year later, can Kang get into the U.S.? Technically, yes. Will he? That’s tougher to say.
“In my experience, a normal person will have to show that a significant amount of time has gone by without them screwing up again and that they have some sort of important reason to be here,” said William Stock, an immigration lawyer from Philadelphia who is a past president of the American Immigration Lawyers Association. “With celebrities, sometimes the time can be shortcut.”
According to Pirates vice president of communications and broadcasting Brian Warecki, Kang is currently in the process of reapplying for his visa. “Kang has engaged an immigration attorney and other experts in this area of immigration law who has assisted in his various applications,” Warecki said. “The Pirates have provided support throughout the process.”
To examine how his legal issues affect the process, let’s begin in 1952.
Defining DUI
Section 212 of the Immigration and Nationality Act spelled out in 1952 the ineligibilities that could prevent someone from getting a visa. The law included draconian language carried over from the 1800s, such as excluding:
(1) Aliens who are feeble-minded;
(13) Aliens coming to the United States to engage in any immoral sexual act;
(18) Aliens who are stowaways;
In 1989, Sen. Ted Kennedy, D-Mass., sponsored a bill to bring immigration policy into the 20th century. The Immigration Act of 1990 included the following ground for exclusion: “to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others.” It also provided the State Department with a way to bar immigrants convicted of DUIs from entering the country.
Initially, the act tried to portray DUIs as a crime of violence, Stock said, but several courts struck down that interpretation. This included the Supreme Court, which in 2004 ruled unanimously in Leocal v. Ashcroft, that DUI was not a crime of violence.
“So having failed that, they went back to their statute books and looked through it and they said, ‘Wait a second. Ever since AA [Alcoholics Anonymous] created the therapeutic model of alcoholism, it’s not a character flaw, it’s a disease,’” Stock said. “’But wait, it’s not just a disease, it’s a mental disease. And you know what, if you have a history of drinking that you can’t control and getting into a car once you’ve been drinking, you now have a dangerous mental condition in which you
engage in behavior that’s dangerous to others. ... We’ll keep you out under a health-related ground of inadmissibility.’”
In 2007, Secretary of State Condolezza sent memo to U.S. consulates that further updated State Department procedure. If a consular officer encounters a prospective immigrant with either one drunk driving arrest or conviction in the past three calendar years, or two or more at any time, they must refer the applicant to a physician for evaluation. Alcoholics are not ineligible, the memo notes, but those who commit dangerous acts while drinking could be, on the basis of: “(1) diagnosis of mental disorder
(alcohol abuse) and (2) current harmful behavior associated with the mental disorder or a history of harmful behavior associated with the mental disorder that is judged likely to recur in the future.”
Overcoming a visa denial
That helps bring us to the 2016-17 offseason. Kang applied for and received a P-1 work visa, the type reserved for elite athletes, in early 2015, Warecki said. The application for 2017 was denied.
The procedure for applying is relatively simple, and there is no restriction on how many times someone can do so. The Pirates had to file a petition for a non-immigrant worker with the U.S. Citizenship and Immigration Services, according to policy posted on the State Department Web site. Once USCIS notified the Pirates of the petition’s approval, Kang had to fill out another form online and schedule an interview at a consulate.
“Generally it probably would move pretty quickly for people who are coming to play on this type of sports team,” said Ashley Garrigus, a spokesperson for the Bureau of Consular Affairs at the State Department. “It’s kind of like very clear, they’re usually working with an organization where they have all their documents in order, things like that.”
A person denied a visa under these circumstances has two options, Stock said. The first is to show he or she has changed.
“Unfortunately, what typically happens is they want a lot of time to pass to show that you really have reformed, particularly if you have multiple DUIs in a relatively short period of time,” he said. “And that might be five years, it might be 10 years. The trigger for two DUIs being a problem is if they’re within 10 years of each other.”
The second is to receive a waiver of inadmissibility. The State Department, in conjunction with the Department of Homeland Security, looks for potential waivers during the processing of the visa application.
“There’s no waiver application. That is an internal department process,” Garrigus said. “There’s no, like, ‘Hey, I’m here to apply for a visa, can I also fill out a waiver application?’ “
Another unknown is whether Kang included his previous two DUIs on any of his visa applications. The Pirates said they did not know about the first two incidents, which occurred in 2009 and 2011, before they signed him, though, Warecki noted, “The club was not directly involved in the [visa] application process.”
The Pirates declined to say why exactly Kang’s visa was denied, or whether or not he disclosed the DUIs on his visa forms. Kang’s agent, Alan Nero, declined to comment, and the State Department does not comment on individual cases. The Pirates did confirm, however, that the ruling of ineligibility is permanent: Every time he applies it will trigger a rejection. Failing to disclose the DUIs could be a material misrepresentation, which is a permanent ineligibility.
“The question is worded very broadly depending on which version of the visa application he filled out,” Stock said. “’Have you ever been arrested, cited, fined, charged, convicted?’ If any of those apply, you’re supposed to say yes, and then the officer can say, ‘Well, tell me about that. What happened?’
“A material misrepresentation would be a permanent bar, which you can’t cure.”
Applicants can get a waiver for a permanent ineligibility, but, Stock said, “Rule of thumb, normal people usually have to wait at least a year or more. It’s not really good to file a visa application, get caught lying and then turn around and say, ‘Oh, so give me a waiver.’”
Bill Brink: [email protected] and Twitter @BrinkPG.