Rolando migrated to the US with his family when he was three years old. His parents were busy working making both ends meet so they can send their children to school. When Rolando turned 18 he started using illegal drugs.
He was arrested by the police during a drug bust and was charged with possession and use of illegal drugs. After serving his sentence, the Immigration and Customs Enforcement agents detained him while he faces charges of removal for his drug convictions. Rolando’s parents decided to take him back to the Philippines and he accepted a removal/deportation order from the immigration court.
Rolando is the only family member who is now residing in the Philippines. All his siblings are in the United States while he lives with his cousins in the province where his mother was from. He is now fully rehabilitated and wants to return to the US to start a new life. His US citizen sweetheart who was his former classmate in high school now wants to petition him for a fiancé visa and so they can get married in the US. Unfortunately, Rolando was told that he may no longer return to the US using his green card because of his prior case for possession and use of illegal drugs. Rolando is now at a loss and is resentful of having accepted an order of removal. Is he really barred from returning to the US for life?
Drug Abuse
Section 212(a)(1)(A)(iv) of the Immigration and Nationality Act clearly bars a person who is determined to be a drug abuse or addict from receiving an immigrant or non immigration visa. The implementing regulations define “drug abuse” as the non-medical use of a substance listed in section 202 of the Controlled Substances Act.
The Controlled Substances Act (CSA), Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970, is the legislation that is referred to in immigration to define illicit drugs. This Act is a consolidation of numerous laws regulating the manufacture and distribution of narcotics, stimulants, depressants, hallucinogens, anabolic steroids, and chemicals used in the illicit production of controlled substances
The usual waivers available to those who are otherwise inadmissible for certain crimes are not available to drug abusers except for those who can prove that hey have taken only a single instance of possession of “marijuana” in an amount under thirty grams which is less than an ounce.
Denying Visas through Admission
Applicants for visas are always encouraged to tell the truth on their applications. Hence, even during medical examinations, honest applicants may admit to taking illegal drugs once in their lifetime. Despite the length of time that passed since the taking of the illegal drugs, the immigration policy serves to bar the applicant from receiving the visas.
Different tests are being conducted and even if the tests shows a negative for drug use the physician may go further and ask the applicant if he/she had use illegal drugs in the past. Without the admission, the physician would not know whether the applicant had taken controlled substance in the past. Believing that honesty has its rewards, applicants admits to past use of drugs not knowing that their admission may mean the end of their dream to come to the US. This is the harsh reality on how this ground for inadmissibility is being applied to future immigrants in the US.
It is difficult if not totally devastating for the applicant for immigrant visa to understand sometimes that by their own admission they have ended their dream of coming to the United States or being re-united with their immediate family. For those who have admitted to taking a controlled substance as defined in section 202 of the Controlled Substances Act, the consequence is indeed not commensurate to the act of taking the drug especially if the applicant is in remission or had committed such acts several years back.
Lost Option
The case of Rolando is different. Without admitting to past drug use, his records will reflect that he had a drug conviction in the US. Since there is zero tolerance on drug use as far as immigration policy is concerned, Rolando will be barred from returning to the US.
It is interesting to note that despite the fact that he migrated to the US, he was not able to naturalize to become a US citizen. Before he turned 18 years old, Rolando’s parents naturalized to become a US citizen and that they could have filed citizenship application for Rolando. Their failure to file for citizenship when Rolando was below 18 years made Rolando vulnerable to removal proceedings. Had he been a US citizen, he would still be in the US despite his illegal drug convictions.
Change in Policy
US agencies such as the Federal Bureau of Investigation now allow applicants, who had in the past admitted to taking drugs many years back, to accept jobs as agents if they can show otherwise their competence to qualify for sensitive positions. Although many employers still take past drug use into account in hiring their employees, some federal agency’s policy had remained flexible and rejected the zero tolerance policy. Even elected officials including President Bush and Obama are allowed to hold highest political positions despite admissions of past drug use/experimentation during their younger days. If flexibility on past drug use has already been exercised by other federal agency, the immigration policy should likewise be changed.
The purpose of the immigration law is to promote family unity and the law must be amended to provide a statute of limitation in the application of this bar and to afford waivers for certain applicants. This will give family unity a much more important policy consideration. Past drug use especially for those rehabilitated should not have lifetime consequences. Everyone deserves a second chance.
(Tancinco may be reached at 887 7177 or at law@tancinco.com)
