The ground of inadmissibility related to controlled substances is imposed regardless of whether the violation is related to drug addiction or whether the person has already attended an addiction treatment center, drug rehab or alcohol rehab.

Waivers for criminal grounds of inadmissibility are filed on form I-601. If the applicant is abroad, the waiver is filed with the consular office and it will be forwarded to a local USCIS office for a decision. If the applicant is in the United States and attempting to adjust status, the district director with jurisdiction over the applicant’s place of residence will adjudicate the waiver. A 212(h) waiver does not cure issues regarding moral character in a cancellation of removal case for a non-lawful permanent resident or when requesting voluntary departure after the end of deportation proceedings.

There are two types of criminal waivers available to intending immigrants, and no court can review the decision to grant or deny the waiver; review of decisions is reserved exclusively for the Administrative Appeals Office (AAO). A 212(h)(1)(A) waiver is used to overcome inadmissibility when activities occurred more than 15 years prior to the application for immigration benefits, admission of the alien would not be contrary to the welfare or security of the United States, and the applicant can prove rehabilitation or recovery. When evaluating the waiver, immigration officials must be convinced that the applicant’s positive factors outweigh the negatives. In cases where drug addiction or alcoholism contributed to the crime, it is essential to show that the person entered drug rehab or alcohol rehab and is considered by a physician to be in remission for the drug addiction or alcoholism. Even if a foreign national does not have the resources to enroll in a formal addiction treatment center, he or she should at least be able to show habitual attendance at Alcoholics Anonymous (AA) or outpatient substance abuse counseling of some kind.

For a 212(h)(1)(B) waiver, the applicant must show that a US citizen or lawful permanent resident spouse, parent or child would suffer extreme hardship if the waiver were not granted. If the crime is violent or dangerous, the qualifying relative must be facing exceptional or extremely unusual hardship, not simply extreme hardship. Extreme hardship is more than the ordinary hardship one would be expected to suffer due to permanent separation from the applicant or other loved ones or from the country and lifestyle one has become accustomed to. It is something out of the ordinary, such as medical hardship, loss of special educational opportunities, or inability to provide for oneself. Certain mental health issues, such as depression or drug addiction, may make a qualifying relative more susceptible to relapse or recurrence when separated from a spouse because of immigration issues. The person should be evaluated by a mental health professional in order to, first, make sure the person is not at risk and, second, see if inclusion of the results of a psychological evaluation would be beneficial for the waiver.

Extreme Hardship
Given that there is no formal definition, what constitutes "extreme hardship" is something that immigration attorneys find to be elusive. When a waiver is approved, obviously some aspect of the applicant’s hardship was considered to be "extreme" by the adjudicating officer. However, how can you know if it was a particular hardship (in which case, which one?) that swayed the decision maker rather than all of the hardships taken together?
If an adjudicating officer denies a hardship waiver, the applicant can elect to appeal to the AAO. Occasionally, the AAO will release some of these opinions to the public and we can get a sense of how the AAO might rule on a particular waiver. Although immigration officers are not required to follow these informal AAO decisions, chances are good that they will if they do not want to see their decisions repeatedly overturned. However, the AAO is not the only administrative agency that handles immigration appeals. The Board of Immigration Appeals handles appeals for matters that have been decided by an immigration judge (IJ), rather than an immigration officer. People who come before the BIA are typically in deportation proceedings and are attempting to stay or terminate the deportation. Earlier immigration law allowed for suspension of deportation (now cancellation of removal), which required a finding of extreme hardship. Certain BIA decisions from that era are helpful in figuring out what "extreme hardship" actually is.
In the Matter of Kao & Lin, a married couple from Taiwan was in deportation proceedings and had requested that the judge suspend the deportation. The couple had five children, each with only limited ability to speak Chinese. Further, the couple would not be able to afford to send the children to special English schools in China. The couple owned a house in Texas, would have lost money if they had to sell it, and would not be able to buy a house in Taiwan. Although the husband had a business degree, he was pessimistic about his chances of getting a job in Taiwan. The wife was active in church, and had never been arrested or on welfare.
In finding for the family, the BIA declared that relevant factors in an extreme hardship determination included the age of the applicants, both at the time of entry and the current application, ties to the United States and the foreign country, length of time in the United States, health, political and economic conditions in the foreign country, financial impact of the inadmissibility, other means of adjusting status in the United States, involvement in the local community, and prior immigration history. The court emphasized the children’s lack of ability to speak the language in Taiwan, as well as their complete integration into American society. The oldest daughter, fifteen at the time, would have suffered significant disruption in education and social development if forced to move to Taiwan. The court ruled that the couple had met their burden of proving extreme hardship for the US citizen children.
Millie Anne Cavanaugh, Esq. is a Los Angeles immigration lawyer and former insurance defense attorney. She is licensed to practice law in California and Massachusetts. The information contained herein is provided for informational purposes only, and should not be construed as a solicitation for your business or as legal advice on any subject matter. You should not act or refrain from acting on the basis of this information without seeking independent legal advice.
 

Civil surgeons use the Technical Instructions for the Medical Examination of Aliens published by the US Centers for Disease Control (CDC) when conducting exams. Under the Technical Instructions, civil surgeons are instructed to inquire about the applicant’s mental status and use of alcohol or other psychoactive substances. Alcohol abuse and alcohol dependence are medically classifiable mental disorders, as are drug addiction. These issues are classifiable as Class A medical conditions that could make an immigrant inadmissible.

If the medical exam did not reveal a Class A medical condition such as drug addiction or alcohol dependence, but subsequent review of the applicant’s criminal history reveals a history of assault, domestic violence or driving under the influence, the offense can be prima facie evidence that a health-related inadmissibility exists, and the consular or immigration officer can request that the applicant undergo a mental status exam. This is true even if the criminal activity does not, in and of itself, make the applicant inadmissible. Consular posts require immigrant visa applicants with a single drunk driving arrest or drunk driving conviction within the prior three calendars years, or two incidents at any time, to have an additional mental status examination with a substance abuse expert or psychiatrist.

Operating a motor vehicle under the influence of alcohol (DUI), or violence that arises as a result of drug addiction or alcohol abuse, can be an associated harmful behavior that poses a threat to the property, safety, or welfare of the alien or others. Typical harmful behaviors include arrest or conviction for driving under the influence with a suspended, revoked or restricted license, arrest or conviction for driving under the influence that resulted in personal injury or death, felony driving under the influence that resulted in a jail sentence, two or more DUI arrests in the past two years, and three or more DUI arrests where one was in the past two years. If the exam reveals substance abuse or substance dependence, and there is evidence of harmful behavior associated with the disorder that is likely to recur, a Class A medical condition is certified on form I-693 (Report of Medical Examination of Alien Seeking Adjustment of Status). A consular officer or immigration officer then determines that the alien is inadmissible based on the Class A condition.

The only recourse an applicant has to fight a drug addiction or alcohol abuser classification is for the CDC to issue an advisory opinion on the subject, overruling the civil surgeon. However, if applicant is inadmissible based on prior harmful behavior, he or she can file a waiver pursuant to section 212(g)(3) on form 601. If the CDC concurs, immigration officials can place terms and conditions on the applicant which can include posting a bond, entering drug rehab, entering alcohol rehab, submitting to regular substance abuse treatment, and submitting to substance abuse testing.

In a recent case, the Administrative Appeals Office (AAO) of USCIS sustained an appeal of the denial of a 221(g) waiver filed by a citizen of the Philippines. The applicant had been found inadmissible under 212(a)(1)(A)(iii)(I) for having a mental disorder (alcohol abuse) and associated behavior that may or has posed a threat. At his immigrant visa medical exam, he was diagnosed by a psychiatrist as having a Class A condition that rendered him inadmissible to the United States. The psychiatrist noted that the applicant needed to enter to enter an addiction treatment center and a two year history of abstinence to be considered in full remission. The applicant filed a 221(g) waiver. In responding to the waiver request, the CDC recommended that he enroll in an alcohol rehab program and be followed by a doctor experienced in handling alcohol-related mental health problems. The AAO found for the applicant, declaring that the the evidence of business ownership and evaluation supporting his claim that he had been sober for a year overcame the finding that he was inadmissible due to a Class A mental disorder.

How do you avoid these Class A findings? Applicants who have a history of drug addiction or alcohol abuse should be pre-screened by a psychiatrist to determine that they do not suffer from active alcohol dependency or drug addiction and to document that the applicant is in at least some type of remission. Further, records related to enrollment at an addiction treatment center or alcohol rehab, addiction counseling and evidence of participation in recovery activities should be readily available.

Millie Anne Cavanaugh, Esq. is a Los Angeles immigration lawyer and former insurance defense attorney. She is licensed to practice law in California and Massachusetts. The information contained herein is provided for informational purposes only, and should not be construed as a solicitation for your business or as legal advice on any subject matter. You should not act or refrain from acting on the basis of this information without seeking independent legal advice.
 

In Ragoonanan v. USCIS, a 2007 US district court case out of Minnesota, an applicant’s motion for summary judgment was granted and the Court declared him to possess good moral character over the objection of immigration officials. Immigration officials initially denied his naturalization application for failure to show good moral character for the required five years prior to filing. The applicant was a citizen of Trinidad who came to the US in lawful permanent resident status in 1996. At the time of the decision, his wife and child lived in Trinidad and were waiting on his citizenship so that they could move here to be with him. The applicant had worked for Honeywell since 1998, had a clean employment record, and was a member of the Teamster’s union. Further, he owned rental property and filed his tax returns as required.

In 2005, he was arrested for DUI after driving the wrong way down a Minnesota street, blowing a .18 on the breathalyser (more than double the legal limit). He was charged with a fourth-degree DWI (driving while intoxicated) misdemeanor and spend one night in jail. Subsequent to his arrest, the applicant voluntarily participated in a substance abuse inventory that categorized him as having “abusive episodic” tendencies with a low probability of having a substance abuse disorder. He completed six hours of an alcohol, drug and DUI awareness course and pled guilty to the DWI. He was sentenced to 90 days in jail and a $1000 fine (later reduced), and also had to attend a victim impact panel.

Ragoonanan fulfilled all of the DUI-related requirements and filed for citizenship in 2006; he disclosed the conviction as required by law. He attributed the DUI to the stress of his mother’s illness and the prolonged separation from his wife and daughter. USCIS denied his application, finding that the DUI, combined with the fact that he was on probation during his five year moral character period, precluded him from establishing that he the good moral character required of a US citizenship applicant. It was stressed that, by driving under the influence, he had posed a threat to the property, safety and welfare of others. In denying his request for reconsideration, it was determined that enough time had not elapsed since the incident to show the requisite reform.

The Court held that one DUI conviction that results in a year of probation does not bar a good moral character finding. Although Congress declared that habitual drunkards could not show good moral character, they did not include drunk drivers in that prohibition.

However, what if the applicant has more than one DUI? In Yaqub v. Gonzalez, the foreign national arrived in the US in 1991, received BS and MBA degrees, was involved in charitable activities and paid his taxes. In 1991 he was arrested on a minor assault charge stemming from a dispute with a neighbor. In 1993, while a university student, he was arrested for public intoxication with friends after an altercation with a restaurant manager. In 2001, he was arrested for DUI and pled guilty to reckless operation of a motor vehicle; his license was suspended for six months. In 2002, he applied for naturalization and had his interview in December of 2003. However, earlier in 2003 he was again arrested for DUI and was sentenced to 90 days in jail. At the time of his application, he was married to a citizen of Pakistan and they were expecting their first child. His application was denied in September 2004 based on a lack of good moral character.
In overturning the immigration officer’s decision, the federal district court in Ohio disregarded the 1992 and 1993 convictions, chalking them up to youthful indiscretions and emphasized the fact that the applicant admitted to his wrong doing and had provided evidence of rehabilitation and remorsefulness. The Court found that multiple DUI convictions, in and of themselves, do not preclude a finding of good moral character when balanced with positive contributions to the community, even if the incidents occur during the period of required good moral character. However, in Rico v. INS, a New York federal district court upheld denial of a naturalization application where the DUI conviction occurred in the five year moral character period and was one of a series of five DUI convictions over ten years.
Permanent residents who commit aggravated felonies after 1990 are permanently barred from naturalizing and are deportable. A simple, single DUI conviction will generally not rise to the level of an aggravated felony. However, an aggravated felony for immigration purposes is not easy to define. Courts, and the Board of Immigration Appeals (BIA), could conceivably find an aggravated felony classification for driving under the influence when coupled with aggravating circumstances such as death, bodily injury or driving on a suspended license or after a prior DUI.

In order to overcome negative moral character aspects of an immigration application, it is very important to show community involvement, substance abuse remission, and participation in a substance abuse rehabilitation program or AA. If a negative issue arose recently, it might be wise to establish rehabilitation or reform prior to applying for citizenship.

Millie Anne Cavanaugh, Esq. is a Los Angeles immigration attorney and former insurance defense attorney. She is licensed to practice law in California and Massachusetts. The information contained herein is provided for informational purposes only, and should not be construed as a solicitation for your business or as legal advice on any subject matter. You should not act or refrain from acting on the basis of this information without seeking independent legal advice.

Controlled Substance Violations

In a nutshell, those who are convicted or who admit to having committed the essential elements of any crime related to a controlled substance pursuant to Section 102 of the Controlled Substances Act (CSA) is inadmissible. This 212(a)(2)(A)(i)(II) bar includes those who are convicted of conspiracy or attempt, if not for the actual crime. This is a very unforgiving ground of inadmissibility as there is no waiver available except for the very limited exception for those who possessed thirty grams of less or marijuana for personal consumption. Section 102 of the CSA lists over 100 drugs that qualify for treatment under the ground of inadmissibility.

While possession, intent to distribute and actual distribution are the usual drug related offenses that we think of in terms of criminal law, the controlled substance bar to admissibility has been extended to include simply being under the influence of drugs, facilitating the sale of a drug, and possession of drug paraphernalia. One case, Desai v. Mukasey, found that a person who distributed imitations of one of the CSA drugs was inadmissible. United States immigration law takes illegal drug issues very seriously.

The effect this prohibition has on those with drug addiction issues is severe. In some cases, simply admitting to having been under the influence of an illegal substance can ruin your chances of immigrating to the US. Unlike in some state criminal courts, where judicial authorities recognize that certain drug-related crime is intimately linked to the offender’s drug addiction issues, immigration law does not consider rehabilitation through attendance at a drug rehab or overcoming a drug addiction sufficient to warrant lenience in evaluating an applicant’s danger or value to American society.

For those with one violation for 30 grams or less of personal marijuana, evidence of rehabilitation can be extremely important, as those applicants are given the opportunity to file an immigrant waiver to try to overcome the inadmissibility. Medical records that show enrollment in treatment centers, attendance records for recovery meetings, and a history of clean drug testing or drug counseling is essential in proving that the person recovering from drug addiction deserves a chance to enter the United States or be granted a particular benefit.

Drug Trafficking

Drug trafficking is another issue that United States immigration authorities take very seriously. Pursuant to INA 212(a)(2)(C), an applicant who was a knowing and conscious participant or conduit in an attempt to smuggle a controlled substance is inadmissible to the United States. There is no waiver available for this ground of inadmissibility, even if it can be shown that the trafficking charge is related to an individual’s drug addiction.

To be inadmissible as a drug trafficker, a conviction, or even admitting to the essential elements, is not necessary. If a consular officer or the attorney general has reason to believe that the person trafficking drugs, that’s enough. The reason to believe must be supported by reasonable, substantial, and probative evidence, similar to the probable cause standard from US criminal law. However, if the consular or immigration officer does not detect that the applicant possesses a controlled substance at the time of inspection and admission, they cannot later be deported on this ground of inadmissibility as, obviously, the officer cannot show that he had a “reason to believe” at the time of admission.

The list of drugs which could trigger a drug trafficking charge are found in 21 United States Code 802. The definition of trafficking includes knowingly assisting, abetting, conspiring, and colluding. Further, spouses and children of traffickers who knowingly obtained a financial benefit from the trafficker in the five years prior to application are also inadmissible.

Millie Anne Cavanaugh, Esq. is a Los Angeles immigration attorney and former insurance defense attorney. She is licensed to practice law in California and Massachusetts. The information contained herein is provided for informational purposes only, and should not be construed as a solicitation for your business or as legal advice on any subject matter. You should not act or refrain from acting on the basis of this information without seeking independent legal advice.

Once someone has been allowed to enter the United States, though, they are not automatically eligible to remain here, even if they still have a valid visa or entry card. Certain post-entry activities can cause a person to be deportable, allowing immigration officials to either immediately send them home (if here on the Visa Waiver Program), or place them into removal proceedings (if entered without inspection or entered with a valid visa).

While CBP is responsible for securing the border, Immigration & Customs Enforcement (ICE) is responsible for regulating immigration in America’s interior. How does ICE discover that someone who currently lives in the US is deportable? Aside from referrals from state and federal law enforcement authorities, ICE is probably not constantly monitoring FBI databases to identify criminal aliens. They don’t have the time. But, ICE does have the authority to review a foreign national’s deportability at will, and they use the authority liberally. Even if ICE doesn’t immediately show up at the foreign national’s door to send him home, deportability issues are never subject to statute of limitations.

For instance, if a foreign national loses his green card and applies for a new one, immigration officials could use the opportunity to review the person’s rap sheet to determine if any criminal issues arose since his first card was issued that might make him deportable. To confuse matters further, certain situations allow immigration officials to re-examine a foreign national’s admissibility, typically when they are applying for an extension of an existing benefit or adjustment to lawful permanent resident status while already living in the US. If a person is deemed “inadmissible” during the course of the application process, they will be given a “notice to appear” (NTA) for deportation proceedings.

For example, the husband of a United States citizen who applies for adjustment of status (green card) in the United States is subject to both the grounds of inadmissibility and deportability, even if he has already been admitted and has been living in the United States for years. If he has incurred a drug charge since his initial admission, or has had enough DUI’s while here that he is deemed to be a habitual drunkard, he could be both inadmissible (which would make him deportable) and independently deportable and will likely be referred for deportation proceedings. Although a charge may not be serious enough to warrant deportation on its own, if it would trigger an admissibility bar and the applicant is subject to an admissibility evaluation (for instance, when adjusting status), the person will be deportable. This is one of the more complicated immigration concepts to grasp.

Grounds of Deportability under INA Section 237

Immigration & Nationality Act, section 237 authorizes deportation, both at the border and when a foreign national has already entered the US. As has been previously mentioned, those who have not yet been admitted (EWI), those who are seeking admission at the border, and those who are applying for adjustment of status to lawful permanent resident in the United States are subject to the grounds of inadmissiblity. To be deemed admissible, the foreign national has the burden of proving admissibility clearly and beyond a reasonable doubt.

Further, lawful permanent residents who are returning from a trip abroad are generally not subject to the grounds of admissibility unless they have abandoned their LPR status, have been absent for more than six months, have engaged in illegal activity after departing the United States, departed while in deportation proceedings, or are subject to criminal inadmissibility grounds. During deportation proceedings, the government has the burden of proving that an alien is deportable, by clear and convincing evidence. This standard is lower than the “beyond a reasonable doubt” standard.

Being initially inspected and admitted does not protect one from deportation if a ground of inadmissibility occurs after the admission, and the foreign national applies for benefits that require an additional admissibility finding or when the foreign national leaves the US and returns again seeking admission. Those who were inadmissible at the time of entry, but where admitted due to error or misrepresentation, are still inadmissible. Those who are, in deed, found to be inadmissible are deportable under section 237(a)(1)(A). Finally, those who violate the terms of their legal status, or for whom status expires while still in the US, are deportable.

Issues that arise after admission can cause someone to be deported as well. Some grounds of deportation, such as committing a crime involving moral turpitude, are temporary and expire after a certain number of years. Other offenses, such as controlled substance violations, can cause someone to be deported no matter how long the person has been in the United States. This aspect of deportability law can be particularly harsh on American families who face losing a family member who has been in the US for years or, in some cases, decades.

Millie Anne Cavanaugh, Esq. is a Los Angeles immigration attorney and former insurance defense attorney. She is licensed to practice law in California and Massachusetts. The information contained herein is provided for informational purposes only, and should not be construed as a solicitation for your business or as legal advice on any subject matter. You should not act or refrain from acting on the basis of this information without seeking independent legal advice.

Drunk driving laws are different in each country and, thus, aliens who come to the US and drive while under the influence may not realize that they are putting their ability to immigrate to the US in the future at risk. Conversely, US citizens often find themselves inadmissible to foreign countries based on their own criminal histories.

While simple DUI cases involving aliens rarely make the news, cases involving celebrity defendants often do. Scott Weiland, lead singer for the rock band Stone Temple Pilots, recently learned first-hand the effects that DUI can have on immigration in foreign countries. Arrested on November 21, 2007 by the California Highway Patrol for DUI, he was sentenced to 192 hours of jail time at the Van Nuys jail. Weiland did not appear at his arraignment, but rather entered a plea of “no contest” to misdemeanor DUI with a prior conviction through his attorney. He was just over the legal limit. In addition to fines and participation in an alcohol program, he was sentenced to four years of probation. His other band, Velvet Revolver, was forced to cancel scheduled appearances in Japan due to concerns of the effect Weiland’s multiple arrests to have on his ability to enter Japan.

Unless you are a citizen of the United States, driving under the influence here could get you deported, barred from re-entering the US for a period of time, or prevent you from becoming a green card holder or citizen. Inexperienced criminal defense attorneys make tragic errors when advising clients on DUI matters, often failing to take into consideration the ramifications a particular plea or conviction will have on the immigrant’s legal status in the US. Unfortunately, the criminal justice and immigration systems often do not intersect enough to make these dangers known to defendants who either defend themselves or have an inexperienced defense attorney.

Immigration status has little effect on the punishment received for a DUI, but for the possibility of enhanced penalties for driving without a license, proper registration, or proof of insurance. Typical DUI penalties include loss of driving privileges (if you had them in the first place), fines, mandatory attendance at alcohol classes, and possibly jail time. Recently, states began requiring installation of an ignition interlock device (IID) prior to reinstatement of a driver’s license. Some states will reduce or eliminate some of the penalties if you attend an alcohol treatment center. Penalties increase in intensity with subsequent DUIs.

Each state has its own drunk driving laws and, therefore, the affect a DUI conviction will have on your immigration status could depend on where you were when you were pulled over. And not all convictions will immediately result in negative immigration consequences. For instance, a DUI might not affect a green card holder unless he applied for citizenship.

Millie Anne Cavanaugh, Esq. is a Los Angeles immigration lawyer and former insurance defense attorney. She is licensed to practice law in California and Massachusetts. The information contained herein is provided for informational purposes only, and should not be construed as a solicitation for your business or as legal advice on any subject matter. You should not act or refrain from acting on the basis of this information without seeking independent legal advice.