Category: Inadmissibility

Immigration Inadmissibility, Legal Ethics And Marijuana

10/9/2016

by Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

Although medical and recreational marijuana activities are illegal under federal law, at least 25 states have legalized marijuana for medical use. Colorado, Washington, Oregon and Alaska have gone even further by legalizing some forms of recreational marijuana, including its production and sale.

This conflict between federal and state law creates a curious anomaly for the foreign national who wishes to enter the United States either as a temporary visitor or as a temporary resident. If a foreign national wishes to invest in a marijuana business in a state where it is legal, and even endeavor to obtain an E-2 investor visa, this person would likely be rendered inadmissible under federal statutory immigration provisions.

Under 212(a)(3)(A)(ii) of the Immigration and Nationality Act (INA), foreign nationals can be found inadmissible if the authorities know, or have reasonable ground to believe, that they seek to enter the United States to engage in any unlawful activity. Also, under INA 212(a)(2)(C), a foreign national can also be deemed inadmissible if the authorities know or have reason to believe that the person is or has been an illicit trafficker in any controlled substance as defined under 21 U.S.C. 802, which includes marijuana.

If the foreign national has actually used marijuana in a state where it is legal, or undertaken other legal business activities involving marijuana in that state, this person can be found inadmissible for admitting to committing acts which constitute the essential elements of a law relating to a controlled substance pursuant to INA 212(a)(2)(A)(i)(II).

The Department of Justice has set forth guidance in a Memorandum by Deputy Attorney General James M. Cole (“Cole Memorandum”) explaining circumstances where it will exercise prosecutorial discretion and not enforce the law. Specifically, the Cole Memorandum states that it will defer to state law enforcement concerning state laws with respect to marijuana activities, although such discretion will not be applied relating to the following eight circumstances:

Distribution to minors;
Money flows to criminal enterprises;
Prohibition diversion of marijuana from states where marijuana is legal to other states;
Use of legal marijuana as a pretext for trafficking other illegal drugs or activity;
Preventing violence or the use of firearms in connection with marijuana collection or distribution;
Preventing drugged driving or other public health issues;
Preventing marijuana growth on public lands; and
Preventing marijuana possession on federal property.

Although the Cole Memorandum makes clear that it will not enforce marijuana activities that do not implicate its eight priorities in states where it is legal, it still considers manufacture, possession and distribution of marijuana as a federal crime. Thus, it may be difficult for a non-citizen who has been denied a visa to invoke the Cole Memorandum as a defense in demonstrating that the proposed marijuana activities will not be considered as an unlawful activity. Until there is a federal law that legalizes specific marijuana activities, the foreign national will find it extremely difficult to be admitted into the United States to pursue such activities even in states where it is legal.

It is also likely that a consul may question one who wishes to enter to undertake marijuana activities whether he or she has personally used marijuana, which could then potentially count as an admission to a violation of a law involving a controlled substance. However, in order to count as an admission, the BIA set forth the following requirements for a validly obtained admission: (1) the admitted conduct must constitute the essential elements of a crime in the jurisdiction in which it occurred; (2) the applicant must have been provided with the definition and essential elements of the crime in understandable terms prior to making the admission; and (3) the admission must have been made voluntarily. See Matter of K-, 7 I&N Dec. 594 (BIA 1957). If this strict protocol is not adhered to, then a non-citizen should arguably not be considered to be have admitted to committing acts which constitute the essential elements of a law relating to a controlled substance pursuant to INA 212(a)(2)(A)(i)(II).

If the foreign national wishes to directly set up or be involved in a marijuana business in a state where it is legal, which includes its sale or distribution, this would most likely be problematic under federal immigration law. The question is whether activities that are more remote, such as a foreign national seeking to enter the United States on an H-1B visa to join an advertising firm as a creative director where one of its clients is a marijuana business in Colorado, would be considered equally problematic under federal immigration law. The H-1B worker will direct the advertising strategy for this client among several other clients, who are not in the marijuana business. Such a person seeking admission under the H-1B visa who is remotely connected to the marijuana business in another capacity should not be found inadmissible under the immigration laws.

The same reasoning should apply to a foreign national lawyer who will be employed in a New York law firm that specialized in health law. The law firm requires its lawyers to advise hospital clients in complying with New York’s Compassionate Care Act (“CCA”) – a law permitting the use of medical marijuana in tightly controlled circumstances. Under the CCA, health care providers and other entities may apply to be selected as Registered Organizations authorized to manufacture and dispense medical marijuana. The lawyer will assist clients, among other things, in applying to be selected as a Registered Organization, and would also advise thereafter with respect to compliance.

New York Rule of Professional Responsibility 1.2(d) provides:

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent, except that the lawyer may discuss the legal consequences of any proposed course of conduct with a client

Rule 1.2(d), variations of which are incorporated in most state bar rules of professional responsibility, is one of the most important ethical rules. It point-blank prohibits a lawyer from advising a client to engage in illegal or fraudulent conduct. Rule 1.2(d), however, provides an exception for the lawyer to discuss the consequences of the proposed illegal conduct even though it does not allow the lawyer to assist the client with respect to the illegal conduct. It would be difficult for a New York lawyer to comply with Rule 1.2(d) with respect to advising a client under the CCA, as it would require the lawyer to counsel the health care client about medical marijuana activities that the lawyer knows is illegal under federal law although it is legal under the New York law. Under the CCA, the lawyer would not be able to competently represent the client by resorting to the exception under Rule 1.2(d), which is to “discuss the legal consequences of any proposed course of [illegal] conduct with a client.” Such a Registered Organization client would require active advice regarding the manufacture and distribute medical marijuana in compliance with the CCA.

New York State Bar Ethics Opinion 1024 endeavors to resolve this conundrum for the New York lawyer by permitting him or her to “assist a client in conduct designed to comply with state medical marijuana law, notwithstanding that federal narcotics law prohibits the delivery, sale, possession and use of marijuana and makes no exception for medical marijuana.” N.Y. State 1024 took into consideration the Cole Memorandum’s potential non-enforcement of federal law in states where marijuana activities have been rendered legal. While lack of rigorous enforcement of a law does not ordinarily provide a green light for the lawyer to advise a client to engage in activities that violate the law, N.Y. State 1024 took into consideration that New York state had explicitly authorized and regulated medical marijuana, and the federal government had indicated in the Cole Memorandum that it would not take measures to prevent the implementation of state law. Accordingly, pursuant to N.Y. State 1024, a lawyer may give legal assistance to a client regarding the CCA that goes beyond “a mere discussion of the legality of the client’s proposed conduct.” Consistent with similar opinions from ethics committees in Arizona and Kings County, Washington where recreational marijuana activities have been legalized, N.Y. State 1024 held that “state professional conduct rules should be interpreted to promote state law, not to impede its effective implementation.” This is not to say that all ethics opinions are in concert with N.Y. State 1024. A recently issued Ohio ethics opinion goes the other way by limiting the lawyer’s advice to determining the scope and consequences of medical marijuana activity, which is legal in Ohio. It also goes on to state that a lawyer who personally uses medical marijuana, even if legal in Ohio, may adversely reflect on a lawyer’s honesty, trustworthiness, and overall fitness to practice law. Just as lawyers are caught in a state of flux due to the conflict between state and federal law, so are other professionals, such as Certified Public Accountants. Businesses engaging in legal marijuana activities in states where it is legal are not allowed to take business expense deductions for federal income tax purposes for activities illegal under federal law, although they have to declare income from both legal and illegal activities, but may be allowed to deduct expenses under state law.

Keeping this framework in mind, if a foreign lawyer applies for an H-1B visa to join a New York law firm that has among its clients Registered Organizations that need advice regarding compliance under New York’s CCA, would that lawyer be found inadmissible when applying for the H-1B visa at an overseas US Consulate? She should not, but if found inadmissible, this lawyer should forcefully make the case that her conduct would be found ethical pursuant to N.Y. State 1024, and thus should not be considered to be coming to the United States to engage in unlawful activity pursuant to INA 212(a)(3)(A)(ii). It is more likely that visa applicants will be denied entry if they are entering the United States to directly invest in a marijuana business, but probably less likely to be denied if they are performing activities that are more attenuated such as the New York lawyer advising compliance under the CCA or a computer professional who will be designing a social networking site for marijuana consumers. Just as some state bar ethics committees are finding ways to justify a lawyer’s conduct with respect to advising on marijuana activities deemed legal in many states, but illegal under federal law (although not always enforced if the state considers the activity legal), lawyers who represent visa applicants should also be advancing similar arguments with the immigration agencies. Until such time that there is a change in the federal law that legalizes marijuana activities, lawyers should be pushing the envelope on behalf of clients who seek visas relating to lawful marijuana-based activities in certain states, while at the same time strongly cautioning them of the risks of adverse immigration consequences. Finally, lawyers advising such clients must carefully consult with ethics opinions in their states to determine what they can and cannot do under Rule 1.2(d).

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Ebola and Inadmissibility

10/13/2014

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by Cyrus D. Mehta, ABIL Lawyer and his Associate, David Isaacson
The Insightful Immigration Blog

The United States has started Ebola screenings at 5 major airports. Will these screenings really be effective, or are they being implemented by the administration to demonstrate that it is doing something to assuage public fears? The administration has also been criticized by Republican leaders who are pushing to restrict, if not completely block off, air travel from West Africa. The tragic death of Thomas Duncan in Dallas from Ebola who had flown into the United States from Liberia has further exacerbated these fears.

While the airport screenings would apply to all travelers from affected West African countries, including U.S. citizens, non-citizens would certainly be more vulnerable. The fears stemming from the Ebola epidemic are redolent of an earlier time when immigrants who traveled to the shores of the United States were processed at Ellis Island and excluded for a host of diseases, notably including the eye infection trachoma. A Marine General recently warned about hordes of Ebola infected immigrants running for the U.S. border, stoking similar fears today. Anti-immigrant groups are using Ebola, along with ISIS, to further their argument that immigrants are dangerous to the United States, and several Republican politicians including former Massachusetts Senator and current New Hampshire Senate candidate Scott Brown, North Carolina Senate candidate Thom Tillis, and Senator Rand Paul, have cited Ebola to support increased border security along the U.S.-Mexico border.

Pursuant to section 212(a)(1)(A)(i) of the Immigration and Nationality Act (INA), aliens who are determined to have a communicable disease of public health significance are ineligible to receive visas and ineligible to be admitted in the United States. By regulation, under 42 CFR 34.2, the term “communicable disease of public health significance” includes “quarantinable communicable diseases as listed in a Presidential Executive Order,” a list which has included Ebola and other viral hemorrhagic fevers since President George W. Bush issued Executive Order 13295 in 2003. Under the authority of INA section 232, 8 U.S.C. 1222, aliens arriving in the United States may be subjected to detention and physical and mental examination to determine whether they are afflicted with a condition that would render them inadmissible, such as Ebola.

Interestingly, however, under INA 232(b) and 42 CFR 34.8, an applicant for admission who was suspected of having Ebola and found inadmissible on that basis, who disputed the finding, could appeal to a board of medical officers. Presumably, even if one has been quarantined after showing signs of being infected but has recovered, he or she ought to be admitted into the United States. And since INA §212(a)(1) is not among the grounds which can be a basis for expedited removal under INA §235, 8 U.S.C. §1225, this would presumably all take place, even for a nonimmigrant, in the context of regular removal proceedings before an Immigration Judge, unless DHS felt it could argue with a straight face that the nonimmigrant also fell under INA §212(a)(6)(C) or §212(a)(7) and was thus amenable to expedited removal. The nonimmigrant might, for example, be said to have lied to a consular officer or DHS officer about their illness and thus become inadmissible under INA §212(a)(6)(C)(i).

A Lawful Permanent Resident (LPR), on the other hand, at least if returning from a trip of less than 180 days and not having committed any crimes or taken any other actions which would otherwise cause them to be treated as an applicant for admission, would not be regarding as seeking admission to the United States, pursuant to INA section 101(a)(13)(C), 8 U.S.C. §1101(13)(C). That is, the LPR would be considered rather as if he or she had never left the United States at all, because under section 101(a)(13)(C), becoming medically inadmissible under section 212(a)(1) doesn’t cause an LPR to be regarded as seeking admission in the way that certain criminal conduct does. So the LPR would be allowed in, if perhaps under quarantine, not necessarily because he or she were admissible but because admissibility is irrelevant for someone who is not an applicant for admission. There does not appear to be any provision in INA section 237, regarding deportability, which would relate to those who become afflicted with contagious diseases after already having been admitted.

An LPR who had been out of the United States for more than 180 days could potentially be in a more troubling situation. Under INA §101(a)(13)(C)(ii), an LPR who “has been absent from the United States for a continuous period in excess of 180 days” is not entitled to the statutory protection against being regarding as seeking admission, so such an LPR could be found inadmissible under INA 212(a)(1)(A)(i) if infected with Ebola. And although a waiver of such inadmissibility is available pursuant to section 212(g)(1) of the INA, that section requires for a waiver of 212(a)(1)(A)(i) inadmissibility that the waiver applicant have a qualifying relative of one of various sorts, unless he or she is a VAWA self-petitioner. So an LPR absent from the United States for more than 180 days who does not have a spouse, parent (if the LPR is unmarried), son, or daughter who is either a U.S. citizen, or an LPR, or someone who has been issued an immigrant visa, might not be allowed back into the United States after being infected with Ebola, having become an inadmissible applicant for admission and being ineligible for a 212(g)(1) waiver.

We wonder whether such a loss of LPR status due to an infection would be constitutional, but we know that according to the Supreme Court, long-term absences from the United States can strip returning residents of some of their constitutional protections. The regrettable decision in Shaughnessy v. Mezei, 345 U.S. 2006 (1953), which upheld the refusal to admit a returning resident without a hearing and his resulting indefinite detention on Ellis Island, has never been overturned (though its practical effect with regard to the permissible length of detention under current statutes was limited by Clark v. Martinez, 543 U.S. 371 (2005)), and Mr. Mezei had lived in the U.S., apparently lawfully although before the INA of 1952 was enacted and the modern LPR status created, for many years before his 19-month absence. An LPR who is absent from the United States for more than 180 days and becomes infected with Ebola in the meantime may be at risk of becoming the modern Mezei. At the very least, however, the government should be held to the burden of showing such an LPR’s alleged medical inadmissibility by clear, convincing, and unequivocal evidence, as in Woodby v. INS, 385 U.S. 276 (1966), just as LPRs alleged to be inadmissible on other bases have been found entitled to the protection of the Woodby standard in such cases as Ward v. Holder, 733 F.3d 601 (6th Cir. 2013). (The BIA in Matter of Rivens, 25 I&N Dec. 623 (BIA 2011), has acknowledged that clear and convincing evidence is required to declare an LPR an applicant for admission under INA §101(a)(13)(C), although it reserved judgment on the question whether there is a difference for these purposes between clear and convincing evidence as mentioned in INA §240(c)(3)(A) and clear, unequivocal and convincing evidence as mentioned in Woodby.)

As a practical matter, it is unlikely that any non-citizen found to be infected with Ebola would be turned away on the next flight home, or even paroled into the US for a removal proceeding, as this would expose others to the Ebola virus. He or she would be quarantined in a hospital and treated in the United States. If this person fully recovers, he or she should be found admissible. Otherwise, this person will unfortunately under the current state of medical advances in the treatment of Ebola most likely not be alive.

While the United States should not be nonchalant about the spread of deadly infectious diseases such as Ebola, the question is whether screenings at airports are the right way to deal with the problem? Ebola can incubate in a person for up to 21 days before an infected person shows symptoms, as was the case with Mr. Duncan. It has recently come to light that Mr. Duncan’s treatment was less than satisfactory as he was discharged from the hospital when he had a high fever. There are very few passengers who fly into the United States each day from the three countries that are at the epicenter of the Ebola epidemic – Liberia, Sierra Leone and Guinea. Blocking off flights from these countries, due to political grandstanding, will hurt these countries’ economies even further, and will have an adverse impact on trade and investment. This will further hinder their efforts to stem Ebola, and one way to stem an epidemic is to keep people working and normal. In addition, perceived fears about who has Ebola can result in racial profiling of people of certain nationalities, resulting in wrongful denial of visas or admission into the United States.

As a recent editorial in the Washington Post aptly stated, “The answer to Ebola is fighting it there, at the source, not at the U.S. border. No one is protected when a public health emergency is used for political grandstanding.” Centers for Disease Control and Prevention Director Thomas Frieden sensibly told reporters, “Though we might wish we can seal ourselves off from the world, there are Americans who have the right of return and many other people that have the right to enter this country.” As The Economist noted in its recent article on the topic that Dr. Frieden and Dr. Anthony Fauci, head of the infectious diseases component of the National Institutes of Health, have explained, “quarantining West Africa would be unwise. It would weaken governments, trap Americans and spur travellers to move in roundabout ways that make them harder to track.” If the administration believes that screening those who arrive in the United States for Ebola symptoms may be a helpful component of a broader anti-Ebola strategy, it should not taken too far. We must also be careful not to exclude from the United States people who show no real signs of being infected, and accord those who do appear to have been infected full due process to either contest or overcome inadmissibility.

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Bordering on the Absurd: Immigration Expertise Lacking at U.S. Border Agency

10/7/2013

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

[Blogger's note: Today's post offers a shocking analysis of how the decision by Congress some ten years ago to combine the functions of U.S. Customs, Immigration and Agricultural inspectors into a single agency, U.S. Customs and Border Protection (CBP), has led to disastrous consequences for applicants seeking admission to the U.S. under our nation's immigration laws. Written by a senior DHS official, now retired, shows how the supremacy of Customs over Immigration has created an error-prone, inexperienced corps of immigration officers within CBP]

Bordering on the Absurd: Immigration Expertise Lacking at U.S. Border Agency
By Incognito

Once upon a time there was a government agency called the Immigration and Naturalization Service (INS), which many people hated. INS critics called upon Congress to restructure the agency, thinking that all faults would go away if that happened. Congress finally did a major restructuring, creating the Department of Homeland Security and abolishing INS. A funny thing happened on the way to restructuring, as Congress did what Congress meant to do, and not exactly as the INS critics meant for Congress to do.

The INS inspections function transferred to the Office of Field Operations (OFO) in a new agency called U.S. Customs and Border Protection (CBP). An unintended consequence was that the observed level of immigration expertise has dropped alarmingly in CBP’s new OFO. How may this have happened?

With any merger, there must be a melding of corporate cultures. Immigration inspectors had been part of the Department of Justice, Customs inspectors had been part of the Treasury Department, and Agriculture inspectors had been part of the Agriculture Department. With the common goal envisioned by DHS, the expectation that within a relatively short period, perhaps 1 – 3 years but not more than 5 years, the several cultures would unite into one common purpose.

Relatively quickly, with political backing, agriculture inspectors reestablished themselves and their mission as being unique. Their critical mission has thrived in the new agency, as better resources and inspection techniques have allowed this OFO/CBP component to better protect against invasive species.

On Day One, March 1, 2003, it was clear, however, that the former U.S. Customs Service had won the decades-old tension with INS over which agency’s culture and structure was better suited to take over the border inspections program. Ninety per cent or more of OFO/CBP’s top managers came from Customs. The expectation was that the Customs and Immigration missions would be performed adequately by the same officers. Ten years later, this realistic expectation has not been met, as observed by immigration practitioners.

Consider this:

In the beginning, the attitude among legacy Customs people was that the reason there was DHS restructuring was because INS had admitted alien terrorists who had carried out the 9/11 atrocities. As Congress had abolished INS as an agency, the perceived judgment was that all things Customs were good, and all things INS must be bad and not to be trusted. Also, if INS had not let “those aliens” into the country, terroristic activities would not have happened. The solution appeared obvious – just don’t let aliens into the country. However, that simple answer didn’t work, given the hundreds of millions of visitors to the country each year. Therefore, the new CBP culture fostered the idea of figuring out some reason, any reason, to not admit an alien. This culture also fit the mind-set of the INS cowboys who had made up a sub-set of the INS inspections program.

There were a certain number of INS district, regional, and headquarters personnel who transferred to CBP. The question became, what should be done with them? After all, Customs had operated since 1789 without that resource. In that way, former INS managers, who previously had managed port of entry operations, found themselves suddenly stripped of wide-ranging responsibilities and assigned duties of little importance. Not fired, and not particularly valued, their presence was merely tolerated by the dominant culture of the new agency. Although many (especially younger field supervisors) have survived the new culture, some transferred to other agencies, and more retired when that option became available. CBP failed to stem the loss of that valuable immigration resource, with the predictable result that the quality of meaningful oversight of immigration decisions has lessened greatly.

Similar things happened to the attorney resource that transferred from INS to CBP. The overwhelming perception from attorneys who transferred was that CBP’s Office of Chief Counsel (OCC) did not value them as attorneys knowledgeable about immigration issues, but merely as positions that could eventually be filled with the personnel that Customs wanted all along in those slots. Part of that thought came from the reality that the journeyman grade for an INS attorney was GS-14, while journeymen Customs attorneys were only GS-13s. OCC welcomed the higher graded positions, but not the incumbents. Attrition worked its toll, through transfers and retirements, quickly resulting in diminished immigration expertise in OCC. Not to worry though, because when responsibility for legal counsel on immigration inspections issues was transferred to OCC, OCC attorneys attended a two hour briefing. Emerging from the briefing, OCC deemed themselves competent to advise on all immigration complexities. Contributing to the problem, as GS-14 and -15 level former INS attorneys left CBP, they were not replaced with experienced OCC (government) attorneys, but with new kids just out of law school. Bright people, but, nonetheless, new kids on the block having no experienced immigration attorneys to mentor them.

Are things better now? At least one field office of Associate Chief Counsel, when presented with an immigration question, simply declines to answer but refers the issue to Headquarters OCC. More than one former immigration attorney from the former INS/DOJ structure who transferred to the DHS structure has deplored the alarming lack of immigration competence in CBP’s OCC. From this, a casual observer may conclude that if OCC ever had a goal of maintaining or developing immigration expertise, it has fallen short of realizing that goal.

Lack of knowledgeable oversight has made meaningful decision-making review more difficult. In the old INS structure, the entire chain of command, from port of entry management, to the INS district, regional, and headquarters offices, consisted of career immigration officers. The chain of command managers had the knowledge to discern weaknesses in cases when apparent ineligibilities had developed at lower levels. With expertise gained through time had come the additional experience of making decisions involving discretionary authorities. In the new CBP environment, top managers were most likely (90%) to have come from legacy Customs and had neither the experience nor the expertise to spot weaknesses in questionable immigration cases. Also, with the old INS cowboys contributing their version of law and procedure, their attitude of “The only good alien is a refused alien” gained greater dominance.

Nor were the former Customs managers comfortable exercising discretionary authorities. The Customs culture, dealing with goods and merchandise, had developed a “good or bad” mentality. If something was good, or permitted, it was allowed entry. If something was bad, it either was not permitted entry, or penalized in some way. Therefore, the concept of detecting an inadmissible alien, but permitting that person to continue into the United States, was difficult to adjust to. Much easier just to send the inadmissible alien home, rather than take a chance of having a discretionary decision questioned by that manager’s chain of command, or agonizing whether the person who had been allowed to travel may commit some further sin.

Contributing to the reluctance of offering discretion is the Customs culture of hanging officers out to dry for the slightest perceived infraction. Over decades, this culture had trained the Customs chain of command to pass the buck when a decision was even slightly out of the ordinary. Not having been trained to make discretionary decisions, and, in fact, having been trained to not make discretionary decisions, it is little wonder that exercising discretion was such a difficult concept to embrace.

Over the years, criticism of discretionary decisions is no longer limited to those from the chain above. Line officers have made reports to internal affairs that supervisors are abusing discretion authority in favor of aliens thought to be inadmissible by line officers. First and second line supervisors are now damned if they do and damned if they don’t, both by chain of command or internal affairs second guessing.

Faced with diminishing immigration expertise in OFO/CBP, and with increasing negative publicity about poor decisions at ports of entry, former Commissioner Basham asked a Headquarters working group why “immigration” seemed to be such a dirty word. The answer should have come easily from OFO/CBP’s top managers, many of whom had developed well-deserved reputations in Customs of having little regard for immigration issues and immigration personnel. Although publicly articulating allegiance to the combined immigration and customs missions, their actions spoke loudly in exposing their prejudices against that “immigration” dirty word. Is it any wonder then that line officers, trained observers as they are, pick up on the non-verbal clues noticed by Commissioner Basham when he asked why “immigration” seemed to be such a dirty word in OFO/CBP? It takes a truly determined effort for any individual officer to develop immigration expertise on the officer’s own initiative when doing so takes the officer outside the dominant agency culture.

Note also how CBP has eliminated the term “immigration” whenever possible, largely replacing discussions of “immigration” issues with “admissibility” issues. One “Day One” proposal was that the best use of officers historically assigned to immigration secondary would be to reassign that resource to more intensive baggage examinations. There have even been top-level questions of whether OFO/CBP wasn’t now past using the term “immigration officer." Those questions eased only when reminded that Congress had chosen to keep the term “immigration officer” in the INA. After all, if OFO/CBP had no one designated as immigration officers, who would make decisions about eligibility/ineligibilities under the INA?

Also note the mid-level field manager who recently commented, “I came from Customs, and I just don’t get this Immigration stuff.” But now we’ve gone ten years down the road in the new agency, and managers still haven’t learned to properly apply Immigration issues. If legacy Customs managers still haven’t learned, where is the fault – with the manager for refusing to learn about Immigration complexities, or for the agency for not providing training and holding managers responsible for faulty chain of command decisions on immigration issues?

The Customs culture is alive and well. The Customs culture does not hold OFO top field managers responsible for poor decisions about immigration issues. There is a cultural lack of emphasis on developing or retaining immigration expertise, in the officer corps, among OFO managers, and in OCC. Poor decisions are supported by the attitude that OFO/CBP officers’ immigration decisions are considered, in the first instance, to be correct, in spite of the numerous examples, both publicized and not, of incorrect decision making.

CBP’ Office of Field Operations must correct its inadequacies. Immigration practitioners can help by continuing to bring cases to OFO/CBP’s attention for correction and corrective training. If these efforts fail, there may be opportunities for reform through judicial review. Eventually, Congress may step in, again.

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Waiving Goodbye to Unappealable Decisions: Indirect AAO Jurisdiction, or Why Having Your Appeal Dismissed Can Sometimes Be a Good Thing

8/5/2013

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by David Isaacson, Associate with ABIL member, Cyrus D. Mehta
The Insightful Immigration Blog

The USCIS Administrative Appeals Office, or AAO, has administrative appellate jurisdiction over a wide variety of USCIS decisions that are not appealable to the Board of Immigration Appeals. This jurisdiction is primarily set forth in a regulatory list that has been absent from the Code of Federal Regulations since 2003, but was incorporated by reference that year into DHS Delegation 0150.1. Pursuant to that delegation, as many AAO decisions state, the AAO exercises appellate jurisdiction over the matters described at 8 C.F.R. 103.1(f)(3)(iii) as in effect on February 28, 2003. (It has been previously pointed out by attorney Matt Cameron that a currently nonexistent jurisdictional regulation is an undesirable state of affairs for an appellate body; USCIS recently indicated in a July 2013 Policy Memorandum regarding certification of decisions that DHS intends to replace the list in the regulations in a future rulemaking.)

The regulatory list of applications over which the AAO has jurisdiction does not include Form I-485 applications for adjustment of status, with a minor exception relating to applications based on a marriage entered into during removal proceedings denied for failure to meet the bona fide marriage exemption under INA §245(e). Thus, it would appear that the AAO would not have appellate jurisdiction over denials of adjustment applications, and that one’s sole administrative recourse if an adjustment application is denied would be to seek review before an immigration judge in removal proceedings, as is generally permitted (except for certain arriving aliens) by 8 C.F.R. §1245.2(a)(5)(ii). But appearances can be deceiving.

Many, although not all, of the grounds for denial of an adjustment application are potentially subject to waiver under appropriate conditions. If an application is denied because the applicant was found inadmissible under INA §212(a)(2)(A)(i) due to conviction for a crime involving moral turpitude (“CIMT”), for example, a waiver can be sought under INA §212(h) if either the criminal conduct took place more than 15 years ago, or the applicant can attempt to demonstrate that the applicant’s U.S. citizen or lawful permanent resident spouse, parent, son or daughter would face extreme hardship if the applicant were not admitted. Similarly, one who is found inadmissible under INA §212(a)(6)(C)(i) due to fraud or willful misrepresentation (not involving a false claim to U.S. citizenship taking place after September 30, 1996) can seek a waiver of inadmissibility under INA §212(i) based on extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent. Various other grounds of inadmissibility are waiveable as well.

While the AAO does not have jurisdiction directly over the denial of an adjustment application, the AAO does have jurisdiction over the denial of most waiver applications. And in the AAO’s view, appellate jurisdiction to determine whether someone should have been granted a waiver necessarily includes jurisdiction to decide whether that applicant even needed a waiver in the first place. If the AAO finds that a waiver was unnecessary, it will dismiss the waiver appeal and remand for further processing of the adjustment application. That is, it will decide on appeal that the applicant was not, in fact, inadmissible, and thus in effect will have reviewed the denial of the underlying adjustment application even without regard to whether a waiver would be justified if one were indeed necessary. Although this process does not appear to be documented in any precedential AAO decision, comparatively few AAO precedent decisions of any sort having been published, this exercise of indirect appellate jurisdiction by the AAO occurs with some frequency in non-precedential, “unpublished” decisions that have been made available online (generally by USCIS itself, or occasionally by other sources).

Dismissal of a waiver appeal as moot can occur in the context of a §212(h) waiver, for example, where the AAO finds that the applicant’s conviction was not for a CIMT (see also these additional decisions from 2012; 2010; February, March, April and June of 2009; 2008; and 2007). Even if the applicant does have a CIMT conviction, that AAO may conclude that the applicant’s only conviction for a CIMT qualifies for the petty offense exception under INA §212(a)(2)(A)(ii)(II) and thus does not give rise to inadmissibility (see also these decisions along the same lines from January and March of 2009, 2008, and 2006). Dismissal of a §212(h) waiver application as moot can also occur when the AAO finds that the applicant was not convicted of a crime at all given that the official disposition of a charge was a “Nolle prosequi”, or that an applicant who was not convicted of a crime had not given a valid admission to the elements of a crime, in accordance with the procedural safeguards required by precedent, so as to give rise to inadmissibility in the absence of a conviction. Outside the CIMT context, as well, the AAO can dismiss a §212(h) waiver appeal as moot upon a finding that no waiver is needed, such as when someone who was thought to have a waiveable conviction involving 30 grams or less of marijuana successfully points out on appeal that disorderly conduct under a statute not mentioning drugs is not an offense relating to a controlled substance.

In the context of a denial based on inadmissibility for fraud or misrepresentation, the AAO can dismiss an appeal from the denial of a §212(i) waiver as moot if it finds that the misrepresentation was not material (see also these decisions from 2010, 2009 and 2007), or that an applicant who was victimized by others submitting a fraudulent application on his behalf without his knowledge did not make a willful misrepresentation, or that any misrepresentation was the subject of a timely retraction (see also this decision from 2006). AAO dismissal of a §212(i) waiver appeal as moot can also be used to vindicate the legal principle that presenting a false Form I-94 or similar false documentation to an employer to obtain employment does not give rise to inadmissibility under §212(a)(6)(C)(i), and neither does procuring false immigration documentation from a private individual more generally, because a misrepresentation under 212(a)(6)(C)(i) must be made to an authorized U.S. government official. Finally, AAO dismissal of a §212(i) waiver appeal as moot can occur where the only alleged misrepresentation occurred in the context of a legalization program which is subject to statutory confidentiality protection, such as the SAW (Special Agricultural Worker) program under INA §210 or a LULAC late legalization application or other application under INA §245A, and therefore any such misrepresentation cannot be the basis of inadmissibility under §212(a)(6)(C)(i) because of the confidentiality protection.

This sort of indirect AAO jurisdiction can also be used to correct errors regarding inadmissibility for unlawful presence under INA §212(a)(9)(B), if a waiver application is filed under INA §212(a)(9)(B)(v). For example, in a 2012 decision involving an applicant who was admitted for duration of status (D/S) and had been incorrectly found to have accrued unlawful presence after failing to maintain status even absent any finding of such by USCIS or an immigration judge, contrary to the 2009 Neufeld/Scialabba/Chang USCIS consolidated guidance memorandum on unlawful presence, the AAO dismissed the appeal as moot upon finding that the applicant was not, in fact, inadmissible under §212(a)(9)(B).

The AAO’s indirect appellate jurisdiction over inadmissibility determinations has even been exercised where the initial inadmissibility determination was made not by a USCIS officer in the context of an application for adjustment of status, but by a Department of State consular officer in the context of a consular application for an immigrant visa. In a 2009 decision, the AAO dismissed as moot an appeal from the denial of a §212(h) waiver by the Officer in Charge (OIC) in Manila, holding that the applicant did not require a waiver because the applicant’s admission to an examining physician that he had used marijuana in the past did not give rise to inadmissibility, and that Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002) (finding a valid admission to the elements of a crime resulting in inadmissibility under similar circumstances) did not apply because the applicant and the office that made the decision were located in the Philippines rather than within the jurisdiction of the Ninth Circuit. The AAO ordered “the matter returned to the OIC for further processing of the immigrant visa application.” It explained the source of its authority in this context as follows:

The Secretary of Homeland Security (and by delegation, the AAO) has final responsibility over guidance to consular officers concerning inadmissibility for visa applicants. See Memorandum of Understanding Between Secretaries of State and Homeland Security Concerning Implementation of Section 428 of the Homeland Security Act of 2002, issued September 30, 2003, at 3.

Matter of X- (AAO June 17, 2009), at 4.

Nor was that Manila case an isolated exception, although the detailed explanation of the source of the AAO’s authority in the consular context that was contained in that decision is rarer that the exercise of the authority itself. The AAO has also dismissed as moot an appeal of the denial of an application for a §212(h) waiver by the Mexico City district director in the case of an applicant who sought an immigrant visa in the Dominican Republic and had been convicted of a firearms offense which would properly give rise to deportability but not inadmissibility; dismissed an appeal from a decision of the Frankfurt, Germany OIC denying a §212(h) waiver for an applicant whom the AAO determined had not been convicted of a CIMT; dismissed an appeal from a decision of the Vienna, Austria OIC denying a §212(h) waiver for an applicant the AAO found had only been subject to juvenile delinquency proceedings not giving rise to a conviction for immigration purposes under Matter of Devison-Charles, 22 I&N Dec. 1362 (BIA 2001); and dismissed another appeal from a decision of the Vienna OIC where the AAO found that the applicant’s conviction qualified for the petty offense exception. Indeed, the AAO has exercised its indirect appellate jurisdiction over a consular inadmissibility determination in at least one appeal from a decision of the Mexico City district director where “the applicant did not appear to contest the district director’s determination of inadmissibility” but the AAO found that neither of the crimes of which the applicant had been convicted was a CIMT. The AAO’s indirect appellate jurisdiction has also been exercised in a case coming from the New Delhi, India OIC where an applicant disputed his date of departure from the United States which started the running of the ten-year bar, and the AAO found that the applicant’s actual departure had been more than ten years prior and thus no §212(a)(9)(B)(v) waiver was required.

Perhaps most interestingly, it appears that the AAO will even exercise its indirect appellate jurisdiction over inadmissibility determinations in some cases where the applicant has failed to demonstrate prima facie eligibility for the relevant waiver, although the only examples that this author have been able to find of this involve the AAO’s indirect jurisdiction over USCIS adjustment denials rather than consular-processing of an immigrant visa. In a 2006 decision, an applicant who had not provided any evidence that his wife was a Lawful Permanent Resident who could serve as a qualifying relative for either a §212(i) waiver or a §212(a)(9)(B)(v) waiver was found not to be inadmissible because he had made a timely retraction of any misrepresentation, and had accrued no unlawful presence due to last departing the United States in 1989. In a 2009 decision, an applicant who had pled guilty to hiring undocumented workers, and who had been found inadmissible under INA §212(a)(6)(E)(i) for alien smuggling and appealed the denial of his application for a waiver of inadmissibility under INA §212(d)(11), was found not inadmissible by the AAO, which withdrew the district director’s contrary finding—even though the district director had found that the applicant did not meet the requirements of §212(d)(11), and seems very likely to have been right about that, since §212(d)(11) applies only to an applicant who “has encouraged, induced, assisted, abetted, or aided only an individual who at the time of the offense was the alien’s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.” And in 2010, the AAO declared moot a waiver application under INA §212(g) by an individual infected with HIV who apparently had not established any relationship with a qualifying relative, on the ground that in January 2010 the Centers for Disease Control had removed HIV from the official list of communicable diseases of public health significance, and therefore HIV infection was no longer a ground of inadmissibility. Some potentially difficult ethical and practical questions would need to be resolved before deliberately filing a waiver application on behalf of an applicant ineligible for such waiver in order to obtain AAO review of whether the applicant was inadmissible at all, but it is at least a possibility worthy of further analysis.

So when an application for adjustment of status, or even for a consular-processed immigrant visa, is denied, it is important to keep in mind that an appeal may be available even if it does not appear so at first glance, and that establishing the necessary hardship to a qualifying relative to support a waiver application is not necessarily the only way to win the case. If a waiver of the ground upon which the denial was based is at least theoretically available, so as to support AAO jurisdiction over the denial of that waiver, then one can leverage the waiver to seek AAO review of whether a waiver was necessary in the first place.

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A New Immigration Recipe: Specialty Chefs Need a Dream Act Too!

1/13/2013

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

[Blogger’s note: Today’s guest blog is by my friend and scholarly colleague, Nathan Waxman. Nathan revisits an issue he first considered eight years ago in this space when he bemoaned the increasingly poor quality of ethnically authentic food in New York City, and laid the blame upon our immigration laws. Having suffered through several more years of culinary displeasure, and at last seeing a glimmer of hope for immigration reform, Nathan now offers an analysis of the current immigration mess and an enlightened solution.]

A New Immigration Recipe: Specialty Chefs Need a Dream Act Too!
By Nathan Waxman

A guest blog by this author in April 2005 (“Is That Chipotle in My Sushi?”) reported on the adverse interplay of two laws: the 1996 enactment of Immigration and Nationality Act (INA) § 212(a)(9) and the sunsetting of INA § 245(i) in April 2001. That post noted how the rapidly proliferating small-to-medium sized, and particularly family-owned, ethnic restaurants were coping, largely unsuccessfully, with the distasteful consequences of Congress’s enactment of § 212(a)(9), the “unlawful presence” bar of up to ten years prohibiting the grant of permanent residence to most aliens who have tallied more than 12 months of unauthorized stay in the United States. To add to the dyspepsia, Congress had failed to renew a 1994 law, the temporary but vital remedy of § 245(i), which allowed qualified immigrants who had failed to maintain legal status nonetheless to obtain a green card in the U.S. through adjustment of status.

Fast forward eight years. Despite the economic doldrums, gastronomic diversity is here to stay.

Thai restaurants can be found on the remote eastern shore of Virginia, just miles from the island home of the fabled wild ponies of Assateague. Indeed, once concentrated in major urban centers, Thai and Vietnamese (especially pho) restaurants are now nearly as common as pancake houses in small-town middle America.
Taquerias increasingly outnumber diners and “greasy spoons” along the highways and byways of America, from Alabama to Oregon.
Ethiopian and other African cuisines have escaped the gravitational pull of coastal urban centers and can be found in medium-sized cities and suburbs throughout the country.
Regional Indian and Chinese food has penetrated small-town America, and fusion restaurants have burst out of the urban bubble and are thriving in smaller cities and towns throughout the country.

So who is browning the pungent Indian fenugreek and stewing the fiery Ethiopian doro wat?

In 2005, restaurant owners were already recruiting staff of heterogeneous ethnicity from the available populations of experienced work-authorized kitchen crew. However, at the time of the 2005 blog post, few foresaw that the number of people seeking third employment-based preference immigrant visas would cause a persistent retrogression of the quota and in turn would be as toxic as a poorly-filleted fugu by virtually eliminating labor certification and immigrant visa sponsorship as viable options for filling permanent positions in the ethnic restaurant industry.

Clearly, the malaise of 2005 has deteriorated into a debilitating chronic condition for small-to-midsized local restaurants serving ethnic cuisines.

Skilled advocacy, when the facts are right, can enable elite restaurants, ethnic or otherwise, to use such nonimmigrant visa categories as H-1B, E, L-1 or O-1 visas, or the EB-1 or EB-2 immigrant mechanisms, to secure the services of a rarefied stratum of culinary professionals or managers. However, the typical independently-owned ethnic restaurant, whether in the America's Heartland or in an emerging urban neighborhood, cannot ethically or practically avail itself of these more difficult nonimmigrant visas or, indeed, of equally challenging immigrant visa sponsorship these days.

The four case scenarios below show how the inadequacies of U.S. immigration law have made it increasingly difficult for small-to-medium sized ethnic restaurants to staff their kitchens with qualified workers who can please demanding restaurant patrons seeking the best in ethnic cuisines.

A pioneering authentic Thai restaurant in the Chicago area

A Thai couple has run several authentic Thai cuisine restaurants on Chicago’s north side and in Chicago’s northern suburbs since the early 1980s. While the owners obtained residence in the early 90s using the L-1A / EB-1(3) two-step that lets experienced multinational managers or executives become permanent residents as managers or executives of a U.S.-based business, few small ethnic restaurants today can successfully rely on an intracompany transfer. In the ensuing years, their family-style restaurants won accolades by using fresh and authentic Thai ingredients, and they sponsored several chefs who invoked the clemency afforded by the now virtually dead § 245(i).

Since 2005, our restaurateurs have tried, unsuccessfully, to recruit qualified Thai cuisine chefs from the U.S. worker population. While labor certifications in 2005 (prior to the implementation of the U.S. Department of Labor’s PERM online program in that year) were mired in the Department’s mismanaged attempt to reduce backlogs, the employment third preference for other than China and India was generally current.

Ironically, not long after the implementation of PERM, around the time of our last blog, retrogression set in and has steamrolled to the point that Worldwide EB-3 is more than six years backlogged. Thus, the Thai restaurateurs in Chicago, though close to retirement, remain trapped in the kitchen. They are faced with the impossible dilemma of waiting six or more years to bring a chef over from abroad or, on the other hand, risking employer sanctions in the futile attempt to obtain permanent residence for a non-work-authorized, albeit qualified, domestic employee. They are fully aware that, without Congressional reinstitution of § 245(i), or amendment of § 212(a)(9) to provide realistic opportunities for exemption from the draconian 10-year bar, labor certification would be a colossal waste of resources and time.

An Armenian restaurant in a working-class New Jersey town

In 2003, the owner-operator sponsored a chef who had been grandfathered under § 245(i) and who left employment for greener pastures while awaiting certification of his pre-PERM labor certification.

Unable to recruit a qualified chef domestically, the owner substituted a chef who was working in the capital and largest city of Armenia, Yerevan. After overcoming numerous tribulations, in 2011 the substitute chef finally appeared before the U.S. Consulate in Yerevan. The Consul, however, requested additional financial documentation and proof that the sponsoring restaurant still existed and still intended to employ the beneficiary. Sadly, the sponsoring restaurant had fallen on hard times in the small north Jersey town of privately owned homes, half of which were underwater on their mortgages. The Consul denied the visa and returned the file to U.S. Citizenship and Immigration Services for a recommended revocation. Ironically, the owner, himself a chef of modest skill who had been doing the cooking since the original beneficiary left six years previously, attributed the failure of his business not just to the decline of the town, but to his inability to hire a chef well versed in the nuances of authentic Armenian cuisine.

A pricey Mughlai tandoori restaurant in Manhattan’s East 50s

A restaurant dedicated to preserving luxe Delhi-style tandoori (clay oven) traditions sought the services of a highly skilled chef working at a 5-star tandoori palace in Delhi, India. Like the unsuccessful Armenian chef in Yerevan, the tandoori chef had never been to the United States. The restaurant in New York filed a labor certification in early 2003. A full decade later, the restaurant, which has undergone several changes in management, still awaits a visa appointment in light of the decades-long Indian EB-3 green card backlog. The restaurant has made do with moderately skilled chefs, including one whose original training had been at a brick oven pizzeria, but the results are less than stellar. Tandoori calzone, anyone?

A Chinese restaurant in the northernmost county of Maine

Disclaimer: I have never represented Mai Tai restaurant in Presque Isle, Maine, nor have I eaten there. However, I had heard of it even prior to its moment of infamy, when it was featured in ICE’s November 15, 2012 press release trumpeting Mai Tai’s payment of $13,744 for Form I-9 (Employment Eligibility Verification) employer-sanction violations. I was familiar with Mai Tai because I have visited several Chinese nationals, clients of mine, who teach at the Presque Isle campus of the University of Maine (UMPI), located a few blocks down US 1 from Mai Tai.

Notwithstanding Mai Tai’s hokey 1950s-esque name, my clients at UMPI assured me that the beleaguered restaurant presented a pretty decent North American version of Chinese food, and was one of the only places in town where you can get green vegetables. Presque Isle, after all, is deep in the north woods of Maine and far from the clambakes and lobster pots of cozy Kennebunkport.

While we cannot be sure what motivated Mai Tai to transgress the laws against hiring the unauthorized, it’s easy to imagine how challenging it must be to hire specialty chefs in that land of doughnuts, mooseburgers and French fries. While not as backlogged as India’s EB-3, China’s EB-3 is still set back well over six years. We lack reliable statistics on the longevity of newly established independent restaurants in Presque Isle, but a casual stroll down Third Avenue in Manhattan will confirm that the life expectancy of newly established non-franchised ethnic restaurants in the U.S. is much less than the half-life of plutonium. The fact is, most restaurants cannot wait six years, much less six months, to on-board a qualified chef.

***

In my 2005 post, I complained that § 212(a)(9)’s sting and § 245(i)’s demise were depriving the food-lovers among us of faithful representations of traditional ethnic dishes, whether they may be Venezuelan arepas (corn cakes) or Finnish pasties (meat- and vegetable-filled pastries). Now we must suffer unpalatable visa backlogs in the employment-based third preference.

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Drugs and Inadmissibility

1/30/2012

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by Myriam Jaidi, Associate with ABIL member, Cyrus D. Mehta
The Insightful Immigration Blog

From the Comedy Central Show “South Park”(Season 2, Episode 204). The scene: Chef, an adult, is speaking with 4th graders Stan, Kyle, Kenny, and Cartman:

Chef: I just want to tell you that drugs are bad.

Stan: We know, we know, that’s what everybody says.

Chef: Right, but do you know why they’re bad?

Kyle: Because they’re an addictive solution to a greater problem, causing disease of both body and mind with consequences far outweighing their supposed benefits.

Chef: And do you have any idea what that means?

Kyle: No.

Cartman: I know. Drugs are bad because if you do drugs you’re a hippy, and hippies suck.

Chef: Look children: this is all I’m gonna say about drugs. Stay away from them. There’s a time and a place for everything and it’s called college. Do you understand?

Children: Yes!

If Chef had been speaking to non-U.S.-citizens, he should have stopped at “Stay away from them,” given the draconian state of our immigration laws relating to any type of drugs, including marijuana, despite the fact that it has been decriminalized in many jurisdictions in the United States.

We learn in various contexts that drugs are bad, and we should just say no. The exchange above references some of the documented problems with drugs – their use or overuse can result in disease of both body and mind and other serious consequences. Nevertheless, many people identify with the statement Chef makes above. The assumption or joke being that many Americans will have or have had experiences with alcohol and/or drugs, such as marijuana, in college. This assumption may be good for a laugh, but for non-US citizens drugs (meaning controlled substances, for non-medical use) are not only bad, using drugs can lead to inadmissibility on various grounds including public health, criminal, and misrepresentation.

The ground of inadmissibility that comes to mind immediately is the criminal ground under INA INA 212(a)(2)(A)(II). If someone has a criminal conviction relating to a controlled substance, or even admitted to committing the crime, he or she is inadmissible and there is no waiver, although, in certain circumstances, enumerated in INA 212(h)(1), it may be possible to obtain a waiver where the crime “relates to a single offense of simple possession of 30 grams or less of marijuana.” Please note that convictions involving controlled substances (other than a single offense involving less than 30 grams of marijuana for personal use) and having been or being a drug addict or abuser are treated similarly harshly after admission into lawful permanent resident status has been granted. These are both grounds of deportability under INA 237 INA 237(a)(2)(B). This blog addresses issues prior to being admitted as a lawful permanent resident.

What if someone used drugs but was never arrested for it? For example, what if Stan, who is not a US citizen, now lives in New York and went to college in New York on an F-1 visa. In college, during his freshman year, Stan made friends with a group of people that smoked pot a couple of times a week. After freshman year, he stopped smoking pot. After he completes his studies, he is sponsored by a company for an H-1B visa and is working in New York. A few years later, he meets and falls in love with Wendy, a UScitizen. They get married and she wants to sponsor him for a green card. Stan goes to a Civil Surgeon to get the required medical exam done on Form I-693. In the course of providing his medical history, Stan tells the Civil Surgeon, without being asked, that he smoked pot twice a week during his freshman year in college. He doesn't think it is a big deal -- as Chef implied, a lot of people use marijuana in college.

The Civil Surgeon’s role is to perform a medical exam to determine whether a person who is applying for adjustment of status within the United Statesmay be inadmissible to the United States on public health grounds. (Outside the United States, a similar role is performed by a “panel physician”.) They request a medical history and conduct a physical exam to ensure that a person does not have tuberculosis, syphilis and other sexually transmitted diseases, leprosy and other communicable diseases noted in 42 CFR 34.2(b)(4) – (9). They also inquire about physical health and medications a person may be taking to ensure that any vaccines the individual might need are not contraindicated.

According to the Center for Disease Control Immigration Requirements: Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders (hereinafter“CDC TI”), drug screening is not a routine part of the medical exam. See CDC TI at p.11. However, there is a section on the Form I-693 addressing Drug Abuse/Drug Addiction (see Form I-693 at p.3). In order to complete this section, Civil Surgeons are instructed to “evaluate the applicant’s history, behavior and physical appearance when determining if drug screening should be performed.” CDC TI at p.11. If a Civil Surgeon reviews an applicant’s medical history with them and in the course of doing so sees no tell-tale signs of drug use or abuse, they may not ever inquire about recreational drug use. If they do inquire, however, and an individual lies and the truth is later discovered, the individual could potentially, based on the certification on the Form I-693, be subject to civil or criminal penalties, be found inadmissible for fraud under INA 212(a)(6)(C)(i), be at risk of having any immigration benefit derived from the medical exam revoked, and could be subject to removal from the United States.

Many Civil Surgeons do not inquire, but some do. The CDC TI for Civil Surgeons provides a table (at page 12) of indicators that drug screening might be necessary. Among the indicators provided is the following: “history of any substance abuse or dependence.” The terms “drug abuse” and “drug addiction”(aka dependence) are defined in the regulations of the Department of Health and Human Services (HHS) as follows:

Drug abuse.

Drug addiction.

42 CFR 34.4(g) & (h). These terms are further elucidated in the CDC TI, which draws information from the DSM and states as follows:

CDC TI at p.6. In our hypothetical, the Civil Surgeon conducting the medical exam for Stan might see Stan’s use of marijuana throughout his freshman year in college as drug abuse, drug addiction, or neither. If she determines that Stan’s behavior actually does not fall within either category, she will indicate “No Class A or B Substance (Drug) Abuse/Addiction” on the I-693.

If the Civil Surgeon determines that Stan’s circumstances do indicate he is either an abuser or addict, there are various options the Civil Surgeon might pursue. She might collect evidence from Stan to determine whether Stan is in“full remission.” “Full remission” is another term taken from the DSM and it is defined as a period of at least 12 months during which no substance use has occurred. CDC TI at p.14. If she determines that Stan was either a drug abuser or drug addict but has been through full remission, she could classify Stan as Class B and mark the appropriate box on the I-693. A Class B finding does not make a person inadmissible under the public health grounds but could trigger an inquiry as to whether Stan’s condition might make him inadmissible under INA 212(a)(4) as likely to become a public charge. Health is one of the factors that statute requires adjudicators to take into consideration in determining whether someone might be inadmissible as a public charge. Thus USCIS would look into whether Stan’s past problems make it likely that Stan might become a public charge. According to the Foreign Affairs Manual (the Adjudicator’s Field Manual does not currently contain guidance on the issue of public charge, as the section for that topic is “reserved”),someone is likely to become a “public charge” if they are likely to become primarily dependent on the U.S. Government for subsistence either through cash assistance for income maintenance or institutionalization for long-term care at U.S. Government expense. See 9 FAM 40.41 N.2.

What else might the Civil Surgeon do? If the Civil Surgeon determines that Stan has a Class A issue, Stan will be inadmissible on public health grounds unless and until a finding of remission is made that can move him to Class B. If the Civil Surgeon decides she wants more information before reaching a diagnosis, she could also defer her diagnosis to a later date. If the Civil Surgeon decides to defer diagnosis, she would provide Stan with instructions on what steps he would need to take, what information he would need to provide, and the time frame for providing the information to her. If the Civil Surgeon feels that she will not be able to reach a conclusion regarding Stan’s condition, she can also refer Stan to a specialist consultant for further analysis on the drug issue. The specialist consultant’s findings would then be reflected on the I-693.

Could the information Stan provided to the Civil Surgeon about his past drug use trigger any other issues for him with regard to inadmissibility? Depending on exactly what Stan said and what the Civil Surgeon explained in response about the illegality of Stan’s freshman year marijuana habit, Stan might be inadmissible under INA 212(a)(2)(A)(i)(II) if he is found to have admitted “committing acts which constitute the essential elements of . . . 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 102 of the Controlled Substances Act (21 U.S.C. 802)).”

How could this happen? How could a visit to the doctor turn into a trigger of a criminal ground of inadmissibility? It could happen if certain criteria established by the Board of Immigration Appeals (BIA) are met (or even if they are not and the person lives in the Ninth Circuit, as noted below). The BIA set forth the following requirements for a validly obtained admission: (1) the admitted conduct must constitute the essential elements of a crime in the jurisdiction in which it occurred; (2) the applicant must have been provided with the definition and essential elements of the crime in understandable terms prior to making the admission; and (3) the admission must have been made voluntarily. See Matter of K-, 7 I&N Dec. 594 (BIA 1957). These requirements have been strictly followed in published BIA cases, and only in the Ninth Circuit have some of the Matter of K- factors been effectively ignored, arguably without a sufficient justification. See Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002).

In Stan’s case, whether or not his discussion with the Civil Surgeon would make him inadmissible under this section of the law would depend on exactly what he said he did, what the elements of the crime in that specific jurisdiction are, whether the Civil Surgeon provided him with the definition and essential elements of the crime in understandable terms, and whether his admission was voluntary.

Does the analysis change if the Civil Surgeon never asked about drug use? If the Civil Surgeon had not asked Stan and Stan had not offered the information there should be no issue. The Civil Surgeon made a determination based on her medical knowledge and observation of Stan that there was no reason to pursue any drug testing or line of questioning. Stan has not technically misrepresented anything because he was never asked about drug use and therefore did not misrepresent his past.

However, there is a question on the adjustment of status application (Form I-485) that Stan may have trouble answering: “Have you knowingly committed any crime of moral turpitude or drug related offense for which you have not been arrested?” The question on the Form I-485 (and the question regarding inadmissibility on the DS-260, for consular processing of an immigration visa, which is presented differently but raises the same issues) contains many legal terms Stan may not understand. In addition, because the question is on a form with which there can be no discussion and no interaction, clearly the requirements for an admission under Matter of K have not been satisfied. Furthermore, it would be very difficult for applicants to know that they have committed a crime for which they have not been charged or arrested, because one would have to figure out the applicable law, the elements of the crime or crimes, and whether all the elements of any crime have been satisfied. We have a complex penal law system in the United States. It requires the charging authority to determine the applicable law in each particular case and then demonstrate beyond a reasonable doubt that all the elements of that law were satisfied in order for a person to be convicted. This cannot happen on a form.

If Stan had ever been arrested for possession, he could only be convicted if the prosecution established all of the elements of the crime beyond a reasonable doubt, including proving that the substance was in fact marijuana by doing a lab test. For all Stan knows, he may have been smoking oregano during his freshman year. Then there is the question of whether Stan’s use of marijuana is equivalent to“possession” of marijuana in a manner that, under New York law, is prohibited. All of these issues must be pondered before the question can be answered.

The outcome might be different depending on the circumstances – if Stan had mentioned it to the Civil Surgeon, if the Civil Surgeon had pursued the line of questioning, the answer might be different. If Stan had gone to rehab for an addiction issue and his drug use had been confirmed, the result of the analysis might be different, impacting the appropriate answer to the question on Form I-485. The question can only be answered after an in-depth analysis on a case-by-case basis.

Even in the scenarios discussed here– where Stan had revealed his drug use to the Civil Surgeon or to the rehab program – and a determination was made that he was not inadmissible under the public health ground, can it be argued that he should not then face a sort of“double jeopardy” by being implicated under the criminal ground of inadmissibility? Disclosure was made and Stan legitimately cleared the issue of inadmissibility on a public health ground. It seems reasonable that clearing the public health ground should not leave an individual subject to the criminal ground. If Congress wanted one potentially subject to the public health ground of inadmissibility to remain inadmissible under the criminal ground, then Congress would not have provided a way to overcome the public health ground of inadmissibility. Congress would have collapsed drug use or abuse under one ground of inadmissibility. How to answer the question on the forms and the issue of the interplay between the various grounds of inadmissibility are issues that could be the focus of another article, and we raise the issue here to provide a glimpse of its complexity.

The upshot here is that the humorous, somewhat cavalier attitude about drugs displayed in U.S. pop culture by no means reflects the reality faced by those present in the United States who are not citizens. For non-citizens the “Just Say No” slogan developed in the 1980s has greater meaning given the stunning consequences non-citizens face if they do engage in use of controlled substances.

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Immigration Inadmissibility, Legal Ethics And Marijuana

Ebola and Inadmissibility

Bordering on the Absurd: Immigration Expertise Lacking at U.S. Border Agency

Waiving Goodbye to Unappealable Decisions: Indirect AAO Jurisdiction, or Why Having Your Appeal Dismissed Can Sometimes Be a Good Thing

A New Immigration Recipe: Specialty Chefs Need a Dream Act Too!

Drugs and Inadmissibility

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