Evolving Policy on Drug Inadmissibility
January 16, 2013
The “admission” usually occurs at the applicant’s medical examination. The medical examination is required of everyone who immigrates to the U.S. and is conducted by an authorized panel physician, who usually forwards the results of the exam directly to the Embassy or consulate.
Some of the questions asked by the panel physician will be about the applicant’s history of substance use. Under the regulations, controlled substances include marijuana and shabu or methamphetamine.
A visa applicant knows, or should know, that lying or knowingly providing wrong information in order to get a visa is a serious offense that could lead not only to denial but also to a finding of visa fraud.
As a result, the applicant casually admits his past drug use, especially since the use was only an experimentation that took place many years ago, probably when he was still a minor. He might also be thinking that anyway he is speaking with a doctor and not a consular officer.
Later at the consular interview, however, he is refused a visa. He finds out that he faces a lifetime ban from the U.S., although a waiver may be possible. Many applicants, much to their shock, have found themselves in exactly this harsh situation.
How would a single experimental drug use result in a lifetime ban? U.S. immigration law makes a person inadmissible if has been convicted of, or admits having committed acts which constitute the essential elements of a violation of any law or regulation of the U.S., any of the States, or any foreign country, relating to a controlled substance.
In the 2002 case of Pazcoguin v. Radcliffe, a federal appeals court found a Philippine national excludable from the U.S. for having admitted to drug use which was a crime under Philippine law. In that case, the foreign national during his psychiatric examination admitted to using marijuana until he was 21 years old. He had been issued an immigrant visa but was denied admission at the port of entry.
However, many things have changed since that case was decided. For instance, unlike the old law the new Philippine drug law only imposes rehabilitation as a penalty for a first-time offender for the crime of drug use. Furthermore, the Administrative Appeals Office (AAO), in deciding appeals of waiver denials, has stated that it is not bound by the Pazcoguin decision.
The cases decided by the AAO involved applicants from the Philippines who were found inadmissible for admitting to past drug use during their medical examinations and whose waiver applications were subsequently denied.
The AAO followed a precedential ruling of the Board of Immigration Appeal and said that to be a valid admission of a crime for immigration purposes, the alien must be given adequate definition of a crime, including all essential elements, and it must be explained in understandable terms.
In those cases, the AAO said, the admission during the medical examination did not meet the legal standard for it to give rise to the applicant’s inadmissibility. Since the applicants have not made any other sworn statement or admission and they were not charged with or convicted of any drug related crime, the AAO ordered the processing of their visa applications.