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U.S. Immigration Law Still Deems Drug Users Inadmissible as Immigrants

klimkin [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayTitle 8 of the United States Code, which deals with immigration and nationality, defines multiple grounds for inadmissibility, by which the federal government may deny a prospective immigrant entry to the U.S., and deportability, by which it may remove an immigrant from the country. Drug abuse and drug addiction, even without a criminal conviction, are considered grounds for both inadmissibility and deportability. This has been the case since Congress passed the Immigration and Nationality Act of 1952. See Castaneda de Esper v. INS, 557 F.2d 79, 82 (6th Cir. 1977). As a report published by Vice several months ago notes, this can be difficult to enforce, since it relies on an immigrant’s honesty on immigration forms, or an inadvertent admission, such as through medical records.

U.S. courts have generally held that drug addiction does not, in and of itself, mitigate criminal liability for drug-related offenses, although some judges have expressed concern about criminalizing mere drug possession when addiction is involved. See, e.g., United States v. Moore, 486 F.2d 1139, 1243 (D.C. Cir. 1973) (Wright, J.; Bazelon, C.J.; Tamm, J.; Robinson, J.; dissenting) (“[I]in determining responsibility for crime, the law assumes ‘free will’ and then recognizes known deviations ‘where there is a broad consensus that free will does not exist’ with respect to the particular condition at issue.”) Federal authorities in immigration cases have a lower burden of proof than in criminal cases, so this principle would certainly seem to apply in decisions regarding inadmissibility and deportability.

Drug abuse and addiction are considered health-related grounds for inadmissibility. 8 U.S.C. § 1182(a)(1)(A)(iv). Federal law allows waivers for other health-related grounds, i.e., subsections (a)(1)(A)(i) through (iii), under 8 U.S.C. § 1182(g). Subsection (iv) is conspicuously absent from that list. For example, a prospective immigrant without a vaccination record for certain illnesses, who would be inadmissible under § 1182(a)(1)(A)(ii), may obtain a waiver by demonstrating that they have received a vaccination, that a vaccination would not be “medically appropriate,” or that it would go against their “religious beliefs or moral convictions.” 8 U.S.C. § 1182(g)(2). The only waiver that might be available for all health-related grounds, including subsection (iv), applies to victims of human trafficking and individuals involved in trafficking investigations. 8 U.S.C. §§ 1101(a)(15)(T), 1182(d)(13)(B)(i).

With regard to deportability, federal immigration law categorizes drug abuse and addiction as criminal offenses. 8 U.S.C. § 1227(a)(2)(B)(ii). The statute does not authorize any specific waivers. Courts have held that “no conviction is required…for the purpose of deportation” under this statute. Pondoc Hernaez v. INS, 244 F.3d 752, 756 (9th Cir. 2001). The statute expressly allows the deportation of “drug ‘abusers’ who have not been convicted of a controlled substance offense.” Flores-Arellano v. INS, 5 F.3d 360, 362 (9th Cir. 1993). This potentially includes lawful permanent residents.

Immigration attorney Samuel C. Berger represents people who want to immigrate to New York City and the Northern New Jersey area through an employer or family member, people who want to bring a family member to the U.S., and employers who want to sponsor an employee for an immigrant visa. Contact us online, at (212) 380-8117, or at (201) 587-1500 today to schedule a confidential consultation with a knowledgeable and experienced immigration advocate.

More Blog Posts:

Federal Appellate Court Stops Transgender Immigrant’s Deportation Because of Conditions in Home Country, New York & New Jersey Immigration Lawyer Blog, October 8, 2015

Federal Judge Harshly Rebukes Government’s Treatment of Immigrant Children Held in Detention, New York & New Jersey Immigration Lawyer Blog, September 10, 2015

False Statements in Immigration Paperwork Results in Criminal Charges, Revocation of Naturalization Ten Years Later, New York & New Jersey Immigration Lawyer Blog, June 24, 2015

Photo credit: klimkin [Public domain, CC0 1.0], via Pixabay.