Criminal, Drug Related Issues for an Immigrant - Proving Admissibility to the U.S. Again and Again...
Section 212(a) of the Immigration & Nationality Act makes certain aliens inadmissible to the United States based on (1) health-related grounds such as tuberculosis or drug addiction; (2) criminal-related grounds including crimes involving moral turpitude (CIMT), drug convictions and prostitution; (3) national security and foreign policy grounds; (4) public charge risks; (5) protection of United States labor; (6) fraud, misrepresentation and immigration violations; (7) required entry document deficiencies; (8) ineligibility for United States citizenship; (9) prior removals or deportations; and (10) miscellaneous grounds such as polygamy, international child abduction and unlawful voting.
When evaluating whether any grounds of inadmissibility apply to an alien, the burden of proof depends on the particular situation. For example, first-time applicants must show that they are clearly and beyond a doubt entitled to be admitted and are not inadmissible. If they are returning to a particular status, they must show by clear and convincing evidence that they are lawfully present pursuant to the prior admission. Returning lawful permanent resident green card holders, however, do not have the burden of proof. To be found in inadmissible, the United States government must prove inadmissibility.
If the inadmissibility is applied at the time of application at the United States Embassy or Consulate abroad, the visa will simply be denied. However, if one is already at the United States port of entry when found inadmissible, the inadmissible alien will either be allowed to withdraw his application for admission, be subject to expedited removal without the benefit of a hearing before an immigration judge, or will be referred for deportation proceedings. Removal (or deportation) can have serious consequences on future immigration to the United States. Withdrawal of an application for admission, in and of itself, does not have the same effect and is usually the preferable way to go.
An important concept to grasp is the fact that aliens can be required to prove that they are admissible to the United States long after they actually enter. For instance, if someone is admitted to the United States on a tourist visa, overstays the visa for a number of years and later seeks to adjust status because she married a United States citizen, she will have to prove her admissibility again at the time of adjustment. If, at the time of adjustment, she is found to be inadmissible, she could be deported.
Also, if immigration officials made a mistake in initially admitting her to the United States, and the adjusting officer discovers this during her interview, she could be deported under the theory that she was never admissible in the first place. Thus, it is essential that an immigration attorney review a client's entire history to determine if any inadmissibility issues, no matter when they arose, could apply to client. This includes taking a medical history and inquiring about drug addiction, alcoholism and any previous attendance at an addiction treatment center, drug rehab, or alcohol rehab.
Prior to taking on an immigration case, the immigration attorney needs to be aware of any issues that could make the alien inadmissible, deportable or fail to have good character. Having been convictied of certain crimes, admitting to committing certain crimes, and even the government thinking that someone was involved in certain crimes have the potential for ruining an immigration case. In addition, serious medical issues and prior negative immigration history can make the alien inadmissible. Thus, it is important to obtain a complete history of prior arrests, prior convictions, prior trips to the US, prior attempts to obtain a visa, and prior deportations.
The consequences of criminal history on an immigration case depend on the client's current status, the type of immigration benefit being sought, and whether or not the client has already been admitted to the United States. Also, the federal circuit court that handles immigration cases from the client's particular region, or where proceedings are being held, may make a difference as circuits often interpret immigration statutes differently. Always check to see what the current case law is in your circuit on a particular matter.
For any criminal arrest or conviction, the attorney must obtain a full copy of the criminal record. Portions of the record include the FBI identification record (rap sheet), which may take six to eight weeks to obtain. Unfortunately, the rap sheet does not always aid in the preparation of an immigration case because it can contain inaccurate information. For instance, the rap sheet may not show all arrests, may include negative information that is attributable to someone else, or may not include information on the final disposition of the matter.
For each arrest or conviction, the attorney should then obtain information from the police department and, if charges were filed, the court. The police department can provide the arrest report and may issue a police clearance letter, listing all misdemeanors and felonies, as well as directions as to where to go for further information. A court clerk can issue a certified list of all cases that came before that particular court, and the final disposition for each. For each charge, the clerk may be able to provide a copy of the indictment or information, a bill of particulars, a verdict or judgment form, the sentencing information, minute orders, written pleas, jury instructions, sentencing reports, probation reports, and police reports.
After the attorney has reviewed the entire criminal file for a particular conviction, she should also obtain a copy of the state, federal or international statute under which the person was convicted. An in-depth analysis of the elements of the crime, including whether it is a felony or misdemeanor and any necessary required intent, may be relevant in arguing that the client is not subject to the particular inadmissibility ground.
The INA 212 grounds of inadmissiblity for certain criminal activity and certain health-related issues can often have negative consequences for those suffering from drug addiction or who abuse alcohol. Some of the grounds, such as those criminal grounds related to drug addiction or drug possession, can result in the individual being permanently barred from immigrating to the United States. Others, such as the medical grounds triggered when an alcoholic exhibits dangerous behavior, will bar an immigrant for a certain number of years. Although certain documentary evidence, including that found in arrest records, court transcripts, or plea documents, will leave the applicant little room to argue against a finding of inadmissibility, the way certain questions are answered during an immigration medical exam can mean all the difference between being found inadmissible and being given a visa.
Millie Anne Cavanaugh, Esq. is a Los Angeles immigration attorney and former insurance defense attorney. She is licensed to practice law in California and Massachusetts. The information contained herein is provided for informational purposes only, and should not be construed as a solicitation for your business or as legal advice on any subject matter. You should not act or refrain from acting on the basis of this information without seeking independent legal advice.