Archive for April, 2008

New medical form means more doom

Thursday, April 17th, 2008

In the earlier days of my practice of immigration law, everything seemed possible when it came to helping foreigners to stay in the United States. Waivers were readily available for many grounds of inadmissibility, cases could be reopened based on changed circumstances, appeals could be taken to fight injustices, and laws often changed, either by legislation, regulation, or judicial rulings, to make things easier, not harder, for foreigners. The rules of the game have gotten steadily worse over the years and more and more people just simply cannot be helped.

USCIS has dealt another serious blow to people wanting to come to the United States. A medical exam is one of the requirements to obtain permanent residence in the United States. USCIS announced that a new medical form comes into force on May 1, 2008. The form, Form I-693, now requires a doctor, at Part II, Question 4, to explicitly ask a foreigner seeking permanent residence whether he or she uses or ever has used a controlled substance.

Ask a person, from President Bush to the average Joe, if he ever has used drugs and the odds of getting an affirmative response are very high. The Centers for Disease Control reports that 8.1 percent of Americans over age 12 have used an illicit drug in the last month. For persons between the ages of 18 and 25, the percentage is a remarkable 20.2 percent. White House Statistics indicate that approximately 55 percent of Americans between the ages of 18 and 34 have used illegal drugs at some time in their lives. There is no reason to suspect that global drug use is much different than U.S. drug use.

Under U.S. immigration law, using drugs is a grounds of inadmissibility. The Immigration and Nationality Act at Section 212(a)(2)(A)(i)(II) provides that an alien is “inadmissible” if the alien (1) was “convicted of,” or (2) “admits having committed,” or (3) “admits committing acts which constitute the essential elements of …a violation of …any law or regulation of …a foreign country relating to a controlled substance ….” There is no time limitation. Admission of drug use fifty years ago creates inadmissibility today.

Hope against all hope that this does not mean what it says, but it does. In a Ninth Circuit Court of Appeals case, Pazcoguin v. Radcliffe, the court, often referred to as being a liberal one, held that an admission of marijuana use to a doctor seventeen years earlier was enough of a reason to permanently bar the foreigner from admission to the United States. As doctors begin to use the new form, foreigners will begin to put nooses around their own necks. In a famous scene from Anatomy of a Murder, Jimmy Stewart, a criminal defense attorney, goes to the jail to interview a murder suspect, Ben Gazarra, for the first time. Stewart does all the talking. He explains to Gazarra the elements of the crime for which he is in jail and the available defenses, including insanity. He tells Gazarra to think about it and leaves to talk again another day. When he comes back, Gazarra is able to articulate an insanity defense. Was this ethical? Should a doctor tell his or her patient at the beginning of the exam that there will be a series of questions and answering affirmatively to them will likely result in the denial of a visa?

To ask a foreign permanent resident applicant – someone who has waited fifteen years to apply through their parents’ petition, a foreigner newly marrried to a United States citizen, a distinguished scientist or businessman – if he or she has ever used drugs and the statistical likelihood, if the patient is completely candid, could result in a 55 percent rejection rate. This new medical form may not do much in dealing with the problem of illegal immigration, but it will have a huge impact on legal immigration.

 

What if he was a foreigner?

Wednesday, April 16th, 2008

Charlie Sheen

Charlie Sheen, also known as Carlos Estevez, was convicted by virtue of a no-contest plea to a charge of battery with serious criminal injury on June 10, 1997. He received a sentence of confinement of one-year, which was suspended. If he were a foreigner, he would be deportable on two separate grounds. Firstly, for having committed a crime of domestic violence, INA § 237(a)(2)(E), as he was dating the victim, for which a pardon under INA § 240A(a) would be available if he were a permanent resident for five years and resided in the United States after lawful admission for seven years, and not an aggravated felon. Unfortunately, as he was sentenced to a year’s detention, despite the fact that the sentence was suspended, he would be an aggravated felon pursuant to INA § 101(a)(43)(F) as an alien who committed a crime of violence with a sentence of a year or more, and be deportable as an aggravated felon pursuant to INA § 237(a)(2)(A)(iii) and ineligible for a pardon because he is an aggravated felon pursuant to INA § 240A(a)(3).

Join the Border Patrol

Sunday, April 13th, 2008

The other night I was watching television and saw a recruitment commercial for the border patrol. Officers were moving at high speed on horseback, dune buggy, truck, and helicopter. Curiously, while the voice-over discussed generally the role of protecting the border, it was hard to figure out what the officers were running and riding around doing. At one point it looked like they were putting someone or something in an ambulance. Few would argue that the Border Patrol does not have an important function. The problem to me is that the commercial is not very informative about what it is. Maybe advertising firms know something about the appeal of the actual day to day work of the border patrol.

 

What if he was a foreigner?

Sunday, April 13th, 2008

Tim Allen

Tim Allen, star of Home Improvement, was convicted of conspiracy to deliver a controlled substance on November 26, 1979. Because his crime was a drug trafficking offense, he would be deportable both for a controlled substance violation, INA § 212(a)(2)(A)(i)(II), and pursuant to INA § 237(a)(2)(A)(iii), an aggravated felony. Because the crime is an aggravated felony, he would be ineligible for the current relief, Cancellation of Removal. Because his conviction was before April 24, 1996, he would be eligible for 212(c) relief. His three DUI’s might make receiving this relief somewhat difficult to win. His DUI’s could conceivably render him inadmissible to the United States on medical grounds. He would have to show he was cured of alcoholism.