Category: Drug Conviction

Denials of Green Card and Citizenship N-400 for Using Marijuana or Work Related to Marijuana

8/8/2022

Using marijuana for any reason, even without a conviction, can result in denial of your green card application, either through adjustment of status in the United States (I-485) or through consular processing abroad.

Using marijuana can result in being considered inadmissible - could be under both health related and criminal related grounds

In recent years, USCIS denied applications for naturalization or citizenship (N-400) to applicants who were using marijuana or even worked in marijuana-related industry, for example, in the states where marijuana was legalized. Currently, work related to marijuana is interpreted by USCIS very broadly, to include anything from growing, distribution to providing IT services.

Colorado officials are warning legal immigrants that working in the state’s marijuana industry could jeopardize their legal status, after two people said they were denied U.S. citizenship because of their jobs.

Although 10 states broadly allow its use and sale, federal law still bans marijuana and immigration authorities say they are bound to follow that prohibition when reviewing citizenship applications.

The use and sale of marijuana for adults is broadly permitted in 10 states. More than 30 states allow a variety of marijuana-based products for medical purposes.

Lawyers have warned immigrants of the risk that using state-permitted marijuana could do to their legal status for years and are expanding that message to include employment by marijuana businesses.

Please note that in 2019 USCIS issued a bulletin (pdf) clarifying that marijuana use is a disqualifying factor in citizenship applications, regardless of whether it’s legal in your state.

Policy Highlights  Clarifies that violation of federal controlled substance law, including for marijuana, established by a conviction or admission, is generally a bar to establishing GMC for naturalization even where the conduct would not be a violation of state law.  An applicant who is involved in certain marijuana related activities may lack GMC if found to have violated federal law, even if such activity is not unlawful under applicable state or foreign laws. Citation Volume 12: Citizenship and Naturalization, Part F, Good Moral Character, Chapter 5, Conditional Bars for Acts in Statutory Period [12 USCIS-PM F.5]

Read here.

To schedule a consultation with immigration attorney, please email.

Briefly in Russian:

Проблемы с получением грин карты и гражданства США при употреблении марихуаны, даже в штатах где она легализована. А также для тех, кто работает в сфере марихуаны, даже в тех штатах где это легально, и даже в тех случаях, когда работа не включает в себя разведение и распространение марихуаны. Перед подачей любого иммиграционного заявления, проконсультируйтесь с адвокатом.

0 Comments

Effect of DUI, DWI and other alcohol related crimes, arrests, convictions on admissibility to USA

10/26/2017

0 Comments

Alcohol-related crimes, charges, convictions are a health-related ground of inadmissibility to the United States.

USCIS, DHS, ICE, Department of State and other immigration authorities are now following the new policy regarding the individuals who have alcohol-related charges, arrests or offenses. Immigrants should keep in mind the consequences of having even one alcohol related criminal charge or offense, which means that USCIS possibly can find them ineligible for an extension of status, change of status, adjustment of status request.

In some cases (not always) it could be possible to leave the U.S.A. and apply for a visa at the U.S. Consulate abroad. However, U.S. Consulates abroad can require applicants to be evaluated by a designated panel physician who will evaluate whether the visa applicant has a physical or mental disorder associated with alcohol use that may pose a threat to the property, safety or welfare of others in the United States.

It should be noted that the U.S. Consulates are now often revoking already issued and valid visas of affected foreign nationals when they receive a law enforcement report of a DUI-related arrest or conviction regardless of whether individuals are in the United States or abroad at the time. A person can receive a phone call or email asking him or her to come to the U.S. Consulate with a passport (no explanations given), so a visa can be physically revoked (cancelled). Most people are unaware that their visas are revoked until they try to return to the United States after travel abroad. Some people with alcohol-related charges receive letters from the U.S. Department of State notifying them of their visa revocation.

Because these negative consequences are result of the health-related ground of inadmissibility, it means that no conviction is necessary (arrest and charged are enough).

Until recently, the only affected groups of people were the visa holders with a single alcohol-related arrest or conviction within the last five years, or two or more alcohol-related arrests or convictions.

Under the current policy, it only takes a single alcohol-related charge to trigger action by U.S. authorities. USCIS is now identifying alcohol-related offenses and denying requests for an extension of status in any visa classification.

Until recently and before this policy change, U.S. Consulates only referred visa holders to a panel physician for evaluation when a new visa application was made. Now, U.S. Consulates are responding to law enforcement reports proactively by revoking the already approved and issued visas of anyone who has an alcohol-related charge even in situations where an individual hasn’t made a new visa application.

If USCIS denied an application for extension or change of status, the applicant will have to leave the country and apply for a visa at a U.S. consulate abroad, in his home country. “Every nonimmigrant alien who applies for admission to, or an extension of stay in, the United States must establish that he or she is admissible to the United States, or that any ground of inadmissibility has been waived.” In other words, it is an applicant's burden to prove that he/she is not inadmissible.

An alcohol-related charge is a health ground of inadmissibility, which means that a conviction is not required and charges alone can trigger inadmissibility. Visa holders affected by this rule are not removable (not deportable on this ground) from the United States.

If a visa is denied, can a visa applicant file an appeal of denial of a Visa Application at the U.S. Consulate abroad? No, you can't appeal a visa denial. There is no appeal process to challenge a consular officer’s decision to deny a visa application. The doctrine of "nonreviewability of consular decisions" was affirmed by the U.S. Supreme Court in 2015 in the case Kerry v. Din .

Another important moment to keep in mind is that neither the visa applicant nor the attorney can review the panel physician’s medical report.

What else can be done? People can ask for an Advisory Opinion from the Department of State’s Visa Office. Also, visa applicants can dispute the findings of the panel physician by asking the consular officer to request an Advisory Opinion from the U.S. Centers for Disease Control and Prevention (CDC), which the consular officer can refuse to do without recourse. Both of these options take a lot of time. As a result, most of the nonimmigrant visa applicants have to obtain a nonimmigrant waiver of inadmissibility through the DHS, which could take six months or longer to process, and during this time the visa applicant has to wait abroad. Approval of any immigrant or nonimmigrant visa waiver is not guaranteed.

During October 19, 2017 meeting, AILA asked the US Department of State Liaison Committee and the Visa Office the following question:

"AILA has received reports of visa holders whose visas were prudentially revoked for DUI arrests while they are in the United States being charged by ICE as removable under INA §237(a)(1)(B), for being physically present in the United States with a revoked nonimmigrant visa. Based on our previous conversations, it is our understanding that a prudential revocation only becomes effective once the alien departs the United States. Has VO discussed this issue with DHS? If prudential revocations are now leading to the initiation of removal proceedings, would VO be willing to revisit the issue to ensure that the prudential revocation only precludes future travel to the United States?"

DoS answer: "We’ve discussed this with ICE, and there has not been a policy change."

New USCIS waiver policy memorandum (08/23/2017).

Updated USCIS Policy Manual, Chapter 7, Physical or Mental Disorders.

Nonimmigrant waiver application.

Immigrant waiver application.

Do not drink and drive.

0 Comments

U.S. Supreme Court ruled in favor of immigrant who received ineffective assistance of counsel leading to deportation

6/23/2017

0 Comments

On Friday, June 23, 2017, in Jae Lee v United States the U.S. Supreme Court ruled in favor of an immigrant, a lawful permanent resident for over 30 years, whose lawyer (criminal defense attorney) falsely told him that pleading guilty to a drug distribution charge in a criminal case would not lead to his deportation.

The court ruled that attorney's incompetence and ineffective assistance of counsel will give an immigrant another chance to reopen his criminal case.

Two justices dissented: the evidence in criminal case was exceptionally strong. The police had found large quantities of drugs (ecstasy) at his home, the defendant was preparing to distribute these drugs at his restaurant, and prosecutors were prepared to present a witness ready to testify.

“In the face of overwhelming evidence of guilt and in the absence of a bona fide defense, a reasonable court or jury applying the law to the facts of this case would find the defendant guilty,” Justice Thomas wrote. “There is no reasonable probability of any other verdict.”

“A defendant in petitioner’s shoes, therefore, would have suffered the same deportation consequences regardless of whether he accepted a plea or went to trial,” he wrote. “He is thus plainly better off for having accepted his plea: Had he gone to trial, he not only would have faced the same deportation consequences, he also likely would have received a higher prison sentence.”

Read more here.

Read the court decision here.

Briefly in Russian:

23 июня 2017 Верховный Суд США опубликовал решение по делу иммигранта, постоянного жителя США более 30 лет, родом из Южной Кореи, который был обвинен в попытке распространения и прожажи огромного количества наркотических веществ (экстази) в своем ресторане. Так как иммигрант получил неверный совет от своего защитника в уголовном деле, который ему сказал "ты был постоянным жителем США более 30 лет, никто тебя не депортирует, признавай свою вину и получишь меньше лет в тюрьме". В результате признания своей вины по делу о наркотиках иммигрант был направлен на депортацию.

По решению Верховного Суда, уголовное дело против иммигранта будет открыто опять, и ему будет предоставлена возможность доказать свою невиновность в суде.

Двое судей выразили несогласие с мнением большинства, объяснив это тем, что доказательства и свидетельские показания по делу были настолько серьезные, что у иммигранта просто не было никаких шансов выиграть свое дело в суде присяжных, и приговор возможно был бы намного более серьезный, если бы он не признал свою вину и пошел с суд.

Решение суда тут.

0 Comments

Denials of Green Card and Citizenship N-400 for Using Marijuana or Work Related to Marijuana

Effect of DUI, DWI and other alcohol related crimes, arrests, convictions on admissibility to USA

U.S. Supreme Court ruled in favor of immigrant who received ineffective assistance of counsel leading to deportation

Author

Archives

Categories