Drug Use And Immigrant Visas
Atty. Robert Reeves, Aug 11, 2008
People who has used or possessed drugs in the past will likely face significant problems in obtaining an immigrant visa. Federal law makes aliens who used drugs inadmissible under several different immigration provisions.
Visa applicants may be declared inadmissible to the
There are some exceptions and waivers to inadmissibility for drugs, but they are limited. One exception to inadmissibility exists in the Ninth Circuit for a first-time drug possession offense that was vacated or expunged by the criminal court. This exception stems from Ninth Circuit case law, Lujan-Armendariz v. INS. This case should apply to U.S. Embassies abroad if someone residing within the Ninth Circuit files an immigrant visa petition for the applicant. However, not all embassies follow this law. In addition, a waiver exists for one-time use or possession of thirty grams or less of marijuana. This waiver does not require expungement of the drug offense.
Most commonly, drug issues that render a person inadmissible arise during visa medical examinations. A medical examination is a prerequisite for obtaining an immigrant visa or adjustment of status in the
In recent years incorrect determinations regarding drug offenses have been made at some
Examiners in the
Because of improper findings of inadmissibility by consular officials based on the medical examiner’s findings of past drug use or addiction, lawsuits have been filed challenging those findings. Unfortunately, these lawsuits have been unsuccessful based on the courts’ findings of consular non-reviewability. There is, however, a new case in the jurisdiction of the Ninth Circuit, Bustamante v. Mukasey, which may open a door to permit review of these issues in the future. The breadth of the decision remains to be tested.
Author's Note: The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the individual legal research and personalized representation that is essential to every case.
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