Criminal Defense of Immigrants


§ 21.10 (D)

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(D)  Juveniles.  This ground likely also applies to juveniles.  See § 12.29, supra.  Therefore, admitting the truth of a juvenile court petition alleging drug offenses, or admitting drug abuse or addiction to probation or court on the record can trigger adverse immigration consequences.  Since this ground of inadmissibility is contained in the health-related grounds, there is an argument it must be based on a medical examination, rather than on hearsay court records or the like.  Sealing juvenile court records can prevent the DHS from obtaining the evidence it may need to establish facts in immigration court to trigger adverse immigration consequences for the juvenile.


This ground of inadmissibility can be waived for juveniles who apply for special immigrant status.  Exclusion grounds other than criminal or subversive can be waived, including the grounds relating to drug addiction and abuse and HIV positive status.[87] 

[87] INA § 245(h)(2)(B), 8 U.S.C. § 1255(h)(2)(B).  See § § 12.7, 15.47, supra.  For more information, see Special Immigrant Status for Children in Foster Care (available from ILRC, 1663 Mission Street, Suite 602, San Francisco, CA 94103).




Effective June, 1, 2010, the department of state updated 9 FAM 40.11 to reflect new Technical Instructions for Physical or Mental Disorders and Associated Harmful Behavior and Substance Related Disorders. All prior guidance is superseded.
Effective June 1, 2010, the Foreign Affairs Manual has been substantially re-written as it relates to INA 212(a)(1)(A)(iii), and (iv), the grounds related to physical and mental disorders. 9 FAM 40.11 N11. These revisions include new definitions of phsical disorder (a clinically diagnosed medical condition where the focus of attention is physical manifestations); mental disorder (a health condition characterized by alterations in thinking, mood or behavior), and harmful behavior. Harmful behavior is defined as an action associated with a physical or mental disorder that has caused, or may cause, one or more of the following: 1. Serious injury (psychological or physical) to the noncitizen or others; 2. A serious threat to the health or safety of the noncitizen or others; or 3. Major property damage. Harmful behavior not connected to the disorder is irrelevant. A person who abuses or is dependent upon a controlled substance (or alcohol) may be inadmissible. However, this is not the case where the noncitizen can show remission - defined as "a period of at least 12 months during which no substance use or associated harmful behavior have occurred." Previously, the necessary period of remission was three years. Alcohol abuse or dependence will cause a person to be inadmissible only if there is evidence of associated harmful behavior which has posed, or is likely to pose, a threat to the property, safety, or welfare of the foreign national or others. Persons with a single DUI conviction within the last five years, or for whom there is other evidence to suggest an alochol problem, may be referred by to a panel physician to determine the extent of the disorder, whether there is (or may be) harmful behavior associated with the disorder, and whether the noncitizen is in remission. A disorder can be classified by the panel physician as either Class A or Class B. A class A condition will render a visa applicant ineligible, while a class B condition should not. An immigrant visa applicant who is determined to have a physical or mental disorder with associated harmful behavior may be eligible for a waiver of the inadmissibility set forth in INA 212(a)(1)(A)(iii). However, an immigrant visa applicant diagnosed with substance abuse or addiction is not eligible for a waiver. INA 212(a)(1)(A)(iv). Non-immigrant visa applicants may be able to waive any of these grounds under INA 212(d)(3)(A).
USCIS released a new medical examination form, dated 04/02/08, which includes specific questions on controlled substance use and addiction (Part 2, Q. 4), and has detailed instructions to physicians about completing these questions (page 6). Counsel must therefore prepare clients for medical exams and interviews by asking, "Have you ever smoked marijuana?" and "Are you in remission? Because if you are not in remission, you are inadmissible and have no waiver (unless you are a refugee or asylee doing AOS)." The HHS guidelines provide that an addict is someone who uses or has used a controlled substance for more than a single, experimental use. I-693 instructions:

Thanks to Deborah S. Smith.
DOS cable dated July 7, 2007: "This cable clarifies how consular officers should handle cases where an applicants' criminal record shows an arrest or conviction for drunk driving or other alcohol related offence."