There are three major ways that alcohol and drugs can affect immigration status: substance abuse, criminal convictions, and criminal association. Not only can drugs and alcohol prevent you from getting a green card, but they can make you deportable. It is important to note that everyone’s case is different. In some cases, you do not need a conviction to be considered inadmissible or deportable. In other cases, a criminal defendant can plead guilty to a felony drug trafficking charge and preserve his or her immigration options. Below are a few common ways that drugs and alcohol can affect immigration status.
Drug Addict or Alcoholic
Under 8 U.S.C. 1182, any alien who is determined:
(I) to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, or
(II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior, or
(iv) … to be a drug abuser or addict,
If an immigration applicant admits to doing drugs or drinking to a point of self-harm, he or she may not be able to obtain a green card or enter the United States. When a USCIS or consular officer suspects an applicant is a drug addict or harmful alcoholic, the officer will likely refer the applicant to a civil surgeon for a medical review. If the civil surgeon concludes the applicant is a drug addict or harmful alcoholic, any application for a green card or visa will be denied. In addition, even though alcoholism isn’t an explicit inadmissibility ground, alcoholism tends to lead to harmful behavior that is. It is important to never freely admit to or discuss any drug use or any problematic alcohol use with anyone.
Even if a person is already in the United States, he or she could be deported. Under 8 U.S.C. 1227(a)(2)(B)(ii), “any alien who is, or at any time after admission has been, a drug abuser or addict is deportable.” Although there are few ways that ICE agents can prove a person is a drug addict, people aren’t always the smartest when it comes to addiction. ICE agents can come across evidence of drug addiction through a person’s posting on social media or admission through Drug Court programs.
Under 8 U.S.C. 1182, a person is inadmissible if he or she is convicted of, admits committing, or admits committing the essential elements of a violation of (or a conspiracy or attempt to violate) any law relating to a controlled substance. There is a time-consuming waiver available only for cases involving less than 30 grams of marijuana.
There are a few major concerns with this ground of inadmissibility. First, a person does not need a conviction to be found inadmissible! Simply “admitting” to possessing drugs is grounds for inadmissibility. Second, the term “controlled substances” relates to federal, not state, law. Even though marijuana is now legal in a few states and countries around the world, it is still a Schedule I Controlled Substance under federal law. Third, this ground of inadmissibility involves actions “relating” to controlled substances; anything from drug paraphernalia to trafficking to drug money laundering could have severe immigration consequences.
For deportations, the law is somewhat different. In order to be deported for a drug-related crime, a person must have a conviction for an offense relating to a controlled substance as defined under federal law. There is also an exception for a single conviction involving possessing for one’s own use of 30 grams or less of marijuana. Convictions “relating to” a controlled substance include possession, trafficking, misbranding, adultering or selling. In addition, different states have different types of diversionary programs that may actually qualify as “convictions” under immigration law. Never assume that a dismissed or expunged charge won’t have lasting immigration consequences.
In some cases, a person does not need to admit to a crime or have a conviction to be considered inadmissible. One of the harshest provisions under immigration law relates to noncitizens and drug trafficking. The law punishes anyone even associated with drug trafficking activity or financial gains from either obtaining a visa or green card, or entering the United States at all.
Under 8 U.S.C. 1182(a)(2)(C), Any alien who the consular officer or the Attorney General knows or has reason to believe
(i) is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so; or
(ii) is the spouse, son, or daughter of an alien inadmissible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity,
Thus, consular officers only need a “reason to believe” an immigration applicant is associated with drug activity or profits. Under this provision, immigration officials can use all sorts of evidence, including evidence from a criminal case that was dismissed, withdrawn or from which a noncitizen was found not guilty. The type of evidence is endless: family members’ association with drug gangs, financial records, fancy and high priced purchases, etc. This provision of the law punishes family members who turn a blind eye to drug trafficking activity.
Because of this highly complex area of law, it is important to retain the expertise of an immigration attorney. The attorneys at Skinner Law Firm can assist you if you have be charged with, accused of, or refused a visa anything relating to a controlled substance. Even if you cannot avoid a conviction, a carefully crafted case can preserve your immigration benefits and your future. Contact us today for a consultation.
By Michael Skinner |
15 Nov, 2020