(B)      Inadmissibility Resulting from a Conviction of a Crime Relating to a Controlled Substance.  The controlled substance ground of inadmissibility states:

 

[A]ny alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of -- (II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), . . . is inadmissible.[224]

 

(1)  Waiver.  A waiver is available under INA § 212(h), to excuse this ground of inadmissibility, but only “insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana . . . .”[225]  See § 2.45, infra.

 

            The aggravated felony illicit drug trafficking category contains the same requirement that the term “controlled substance” must be “as defined in section 802 of Title 21 . . . .”[226]  Therefore, every conviction that falls within the aggravated felony illicit trafficking category will also be considered to fall within the “controlled substance” conviction category triggering inadmissibility.

 

            (2)  Accessory After the Fact.  A conviction of accessory after the fact to a drug offense is not considered a controlled substance conviction, since the offense which is basically similar to harboring a fugitive is not considered to take on the character of the different offense committed by the fugitive.[227]  See § 3.49, infra.

[224] INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II).

[225] Ibid.

[226] INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B).

[227] Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997) (accessory after the fact); Castaneda de Esper v. INS, 557 F.2d 79 (6th Cir. 1977); Matter of Velasco, 16 I. & N. Dec. 281 (BIA 1977) (misprision of felony).  For further discussion of accessory after the fact, see § § 2.17(B)(2), 3.49, infra; ILRC § § 2.8, 9.13.

Other

RELIEF " CONSULAR PROCESSING " PROVISION UNLAWFUL PRESENCE WAIVERS
A practice advisory on provisional waivers of unlawful presence is available here: http://www.aila.org/content/default.aspx?docid=42954