Criminal Defense of Immigrants
§ 21.10 (F)
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(F) Relief. Drug abuse or addiction is not a “criminal” ground of inadmissibility. Therefore, a waiver under INA § 212(h) will not work for this ground. A waiver under INA § 212(c), other the other hand, should be possible. Cancellation of removal should also be available, and a finding of drug addiction or abuse does not “stop the clock” for purposes of cancellation of removal, because it is not an offense listed in INA § 212(a)(2), 8 U.S.C. § 1182(a)(2).
The Ninth Circuit has held that the jurisdiction-stripping provisions of IIRAIRA did not apply to conduct-based grounds of removal, such as drug addiction, that do not depend on the existence of a criminal conviction and cannot constitutionally be considered to be criminal offenses.
 See § 24.29, infra.
 See § 24.28, infra.
 See § 24.4, infra.
 Hernaez v. INS, 244 F.3d 752 (9th Cir. 2001).
INADMISSIBILITY - CONTROLLED SUBSTANCES - ADDICT OR ABUSER
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 All prior guidance is superseded.
INADMISSIBILIITY " NON-CRIME GROUNDS " DUI/DRUG USE
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).
INADMISSIBILITY - MEDICAL GROUNDS - DRUG ABUSE AND ADDICTION
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: http://www.uscis.gov/files/form/I-693instr.pdf
Thanks to Deborah S. Smith.
INADMISSIBILITY - DUI
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." http://travel.state.gov/visa/laws/telegrams/telegrams_3267.html