Posted on February 17, 2010 in Alcohol and Drug News

Drug-Related Grounds of Criminal Inadmissibility into the United States

If a foreign national triggers one of the US immigration drug-related criminal grounds of inadmissibility (section 212(a)(2) of the Immigration & Nationality Act), he or she could be permanently barred from entering the US. Most drug-related criminal inadmissibility is potentially waivable for non-immigrant visas. Many of those who have been convicted of drug offenses, however, find that immigrant waivers are very hard to come by.

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.

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