snowbunny

The way I read the law, a "drug offence" is in the eyes of the foreign country. If a substance is classed as a drug in that country, even if it isn't classed as a drug in the US, a conviction (other than for under thirty grams of marijuana) leads to permanent inadmissibility. So if alcohol/caffeine/nicotine/St Johns wort/etc is classed as a drug in country A, and someone is convicted of possession/use of an illegal drug, that makes them inadmissible to the US?

Furthermore the law pertains to charges on illegal use of *prescription* drugs as well -- so a drug that is OTC in the US (say aspirin) but is not OTC in another country -- a drug conviction for possession of aspirin would render someone inadmissible?

If so, this is ridiculous.

Folinskyinla

Hi:

Actually, they compare it to US law. When in doubt if it would be an offense under US law, the criminal code of the District of Columbia is looked at.

There was a case in the mid-70's involving a guy named John Lennon -- he won because his offense under British law would not have been an offense under US law.

There may very well be a "loophole" in the OP's conviction, so that is why I keep mentioning that a close examination of his actual conviction might be in order. However, we are not talking waiver's here, we are talking about the ground of inadmissiablity. If he falls under the ground of inadmissaiblity due to what is considered an offense involving a controlled substance -- then he can't come in -- no waiver possible.

Although it did not involve drugs, the same principle applied when I litigated the McDonald v Gonzales case -- we had to contest removability directly because she had no waivers available in her case. See
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/1F5E1DEA0281793E88256FB80059E7FE/$file/0371986.pdf?openelement

spoons79

Folinskyinla,
Could you explain what you mean by "simple" one?

To explain my case further.
I was convicted of possession, i was put on probation and had to do a number of community hours as punishment.


Just to confirm, does the law state if i was convicted of possesion then that would be permanent inadmissibility?
If so i guess there's no hope realy due to my stupid actions in the past

Folinskyinla

Hi:

US immigration law is particularly harsh when it comes to drug offenses.

Section 212(a)(2)(A) of the Immigration & Nationality Act provides for inadmissability for convictions of the following [I have cut and pasted]

QUOTE:

(A) Conviction of certain crimes.-

(i) In general.-Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense or an attempt or conspiracy to commit such a crime), or

(II) 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)), is inadmissible.

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-


(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

END QUOTE

Note that the defined exceptions apply only to "crimes involving moral turpitude." At a later point section 212(h) provides for a waiver of possession of 30 grams or less of marijuana.

Please note that the term "conviction" is a defined term and is subject o a lot of case law. Also, we still don't know the PRECISE language of the statute under which you were convicted or the paperwork behind your conviction. The "complicated" part will be use of the "categorical" and "modified categorical" methods of analysis [Please don't ask me to explain it -- I don't think I could. But Snowbunny actually gave an approach to that].

You may want to invest some money to have your record evaluated. If you were convicted an offense related to a controlled substance, then you are out. That is simple. [That is the part where Fatbrit is wrong -- no waiver].

However, your conviction may not be what you think it is.

snowbunny

This can be somewhat time-dependent though.

If the OP was convicted of possession of ecstasy *prior to* July 1985, then it would not, at that time, have been illegal in the US. Would the OP be admissible, or not because it is *currently* illegal in the US?

If the OP had been convicted of having a controlled substance that was illegal in both the US and UK at the time of conviction, but at the time of application for a visa, had been legalised in the US, would the OP be admissible?

That is the question I'm trying to ask.

spoons79

Hi

Thanks for the replies,

Just wanted to ask if this is the same case for visiting the US for a holiday
Would i be able to apply for a waver and if so what are my chances?

I was convicted in 2001

ian-mstm

You can certainly apply... but, as long as you are honest, it will certainly be denied... and I don't recommend lying! Your conviction pretty much dictates your need for a visa... well, if you can get one - even for a holiday.

Ian

Folinskyinla

Hi:

Your chances? Zero if you don't apply. The waiver take time -- they have to be filed with Consulate who has to recommend approval and THEN it goes to CIS for approval [at least in London the consulate and CIS are located in the same building.]

The ONLY published case on the waiver is Matter of Hranka which can be found at

http://www.usdoj.gov/eoir/vll/intdec/lib_vol16idx.html

You have to show a lot of positive "equities" to overcome what is considered a VERY SERIOUS offense [please do not minimize it -- you have to go "I have sinned greviously and will sin no more]. You say you are married to an AmCit -- are her parents living in the US? Do you have children yet? If so, are those children AmCits? If so, do they have cousins in the US?

Three examples I have personal knowledge of:

A citizen of New Zealand was arrested in London when 18 with some friends smoking "smack" cigarettes. Plead guilty to possession of heroin and given a slap on the wrist. She grew up to become quite skilled in her chosen field and became a world renowned professor. She lives in the US with her American Citizen husband on a NON-immigrant O-1 visa -- periodically renewing the visa and the waiver. She was in her early 30's when the first wavier was granted.

Korean citizen attending architecture school in US with one year left in a five year program. His AmCit girlfriend was spending a year in school in Japan and was lonely. He sent her via mail two marijuana joints to cheer her up. Japanese Postal Inspectors arrest and deport girlfriend on possession charges. An INTERPOL "red notice" is posted for boyfriend. Next trip to Korea, he applies to renew his visa and is denied on the ground of "reason to believe he is a drug trafficker."

Korean family immigrates to North America, mostly to Los Angeles. However, one brother immigrates to Canada and becomes a Canadian citizen. He is convicted of misdemeanor child molestation. 15 years after, he wants waiver to visit family and elderly parents in Los Angeles. Case denied at INS and on appeal.


Good luck.

Folinskyinla

Hi:

The grounds of inadmissiblity/deportablity are most often [not always] retroactive. This is often also done with concomitant applications for relief. On the applications for relief end of things, the Supreme Court in the "St. Cyr" case balked in the case of plea bargains. But this is a limited exception.

One of the prime examples is regarding Nazi war criminals. They were made deportable or excludable for those war crimes in 19-seventy-8. Also, the 1952 Act which we still operate under [amended beyond recognition] was enacted in the Red Scares of the McCarthy era -- it really nailed Communists.

[BTW, as an aside, I used to live in a LA neighborhood which in the past had been nicknamed "Red Hill." One of the senior residents living nearby was reminisicing about her neighbor "Frank" and his membership in the Communist Party and how he had been a member of the Lincoln Brigade in Spain. She then mentioned that they had tried to deport him and his case went to the Supreme Court. A light bulb flashes in my mind and I ask "Is Frank's last name Bonetti?" Answer: "Oh, did you know Frank?"]

spoons79

Thanks again for reply

No i dont have any children atm. i do own a place here which can be used for a positive equity

1 more question
If the waiver gets denied, is that a permenant thing or can i apply again later on (when i have children or better financialy for example).

Folinskyinla

Hi:

In the I-130 arena, there are several cases which note that a second application can be filed, but that the first denial can be noted. It is NOT the rule that the first denial is binding. As an abundance of caution, I always cite the relevant cases on this -- because I've seen several decisions from INS/CIS, we denied you before so we must deny you again.

I just completed a case where I was the attorney on the SECOND I-751 of the now US Citizen husband. I pointed out the case law, did NOT contest the results of the investigation, but then noted they had misinterpreted the facts in light of the fact that the government cannot presume that the submitted evidence is fraudulent or that any possible negative inference must be taken. [The first I-751 was denied based upon fraud. On the second I-751, I pointed out that the investigation simply showed a messy love triangle. I simply stated it "People Magazine" and not fraud. Since I've done that case, I found out that Bruce Springsteen's love and marriage life was similar to that of my client. And his marriage to his first wife had nothing to do with immigration.].

souls canuck

Spoon, do your own research also. Unless I missed something I am not seeing how much/little is admissable of this class a drug. I have not looked into this..

it is possible to get a I- 601 approved. if you go the route of immigrating you will need one (that's why we keep mentioning it)

It might be worth a try..

Tracym

As I believe Mr. F said, and my understanding also:

There IS NO WAIVER available for a drug offense. Not I-601. None.

People keep mentioning it, but as far as I am aware in the case of drug offenses (other than a small amount of marijuana) it does not exist.

Folinskyinla

Hi:

Thank you.

I have made a policy of not screaming "UPL" or "netario" on this list. My beef is with BAD advice. But it is strings like that make me pause. Sigh

fatbrit

My fault, I'm afraid. But you live and learn -- can't be right all the time.