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A person who has used or pos-sessed drugs in the past
will likely face significant problems in obtaining an immigrant
visa. Federal law makes aliens who used drugs inadmissible
under several immigration provisions.
Visa applicants may be declared
inadmissible to the US based on a single drug-related criminal
conviction. Some US embassies, such as in the Philippines,
will declare visa applicants merely based on an admission of illegal
drug use. Of course, drug trafficking in drugs will result in
a lifetime bar.
There are some exceptions and
waivers to inadmissibility for drugs, but they are limited.
One exception to inadmissibility exists in the Ninth Circuit for a
first-time drug possession offense that was vacated or expunged by
the criminal court. This exception stems from Ninth Circuit
case law, Lujan-Armendariz v. INS. This case should apply to
US embassies abroad if someone residing within the Ninth Circuit
files an immigrant visa petition for the applicant. However,
not all embassies follow this law. In addition, a waiver
exists for one-time use or possession of thirty grams or less of
marijuana. This waiver does not require expungement of the
drug offense.
Most commonly, drug issues that
render a person inadmissible come up during visa medical
examinations. These medical examinations are prerequisites for
obtaining immigrant visas in the US and at the consulates. The
purpose of the medical examinations is to determine whether
individuals have a health condition that is a risk to public safety
in the US and should prevent the person from being admitted to the
US.
In recent years, incorrect
determinations regarding drug offenses were reached at US consulates
abroad because of improper actions of medical examiners and consular
officials. Medical examiners have expanded what they are
looking for during the examination to include more than mere
evidence of drug abuse or addiction.
Through aggressive and sometimes
deceptive questioning, medical examiners have found use of a drug in
the past without exploring how long ago the drug use was or how many
times drugs were used. For example, visa applicants have
reported that some medical examiners have told them that admissions
to drug use will not affect eligibility for a visa when that is not
true.
Examiners in the US will now be
encouraged to look for drug use in aggressive manners as well.
In May 2008, US Citizenship and Immigration Services implemented a
new medical examination form for obtaining residence in the US
through adjustment of status. This form requires examination
of possible drug use. Will new requirements result in
witch-hunts that up to now have been limited to a couple of
embassies?
Because of improper findings of
inadmissibility by consular officials based on medical examiner
findings of drug use or addiction, lawsuits have been filed
challenging these consular findings. Unfortunately, these
lawsuits have been unsuccessful based on the courts’ findings of
consular non-reviewability.
There is, however, a new case in
the jurisdiction of the Ninth Circuit, Bustamante v. Mukasey, which
may open a door to permit review of these issues in the future.
The breadth of the decision remains to be tested.
Note: The analysis and
suggestions offered in this column do not create a lawyer-client
relationship and are not a substitute for the individual legal
research and personalized representation that is essential to every
case.
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