What if he was a foreigner – Wait, he is! Russell Brand

Sunday, December 25th, 2011
By: Jonathan MontagJ.D.

British actor, comic, author, singer, et al., Russell Brand, who is also the husband of Katy Perry, has suffered eleven arrests according to media reports, I can find no information about the final disposition of these arrests, i.e., what he was actually convicted of. Media reports include two arrests for shoplifting and several marijuana arrests, including one for cultivating marijuana. Interviews of him also contain admissions to his having been a drug addict.

Assuming some of the reported arrests led to convictions, and even without convictions, assuming he committed the acts involved in some of the arrests and assuming his admissions to drug addiction were sincere and procedurally sufficient, he can never become a permanent resident of the United States.

Starting with drugs, cultivating marijuana is a drug trafficking crime as the appellate court case, United States v. Reveles Espinoza, among others, has concluded.  This would render Mr. Brand inadmissible pursuant to INA § 212(a)(2)(C), which bars persons whom authorities have a reason to believe are drug traffickers from admission to the United States or from obtaining permanent residence, though I suppose an argument can be made that the term “illicit trafficker” at INA § 212(a)(2)(C) means something different than illicit trafficking at INA § 101(a)(43)(B), the statute under consideration in Reveles Espinoza. There is no waiver for this ground of inadmissibility.

In addition, admitting to having committed a drug crime makes one inadmissible for a controlled substance violation pursuant to INA § 212(a)(2)(A)(i)(II). There is a waiver of inadmissibility for one simple possession of 30 grams or less of marijuana at INA § 212(h), but Mr. Brand has admitted to using drugs more than once and of using other drugs in addition to marijuana. Further, a past single conviction (before December 14, 2010) that was expunged or diverted might allow him to avoid inadmissibility. Otherwise, there is no waiver for these admissions.

There is a medical grounds of inadmissibility at INA § 212(a)(1)(A)(iv) for drug abusers or addicts, though the impact of this ground disappears with the passage of time and there is a waiver available if the person was merely a drug experimenter or in remission.   Paradoxically, even though there is a waiver for being an addict or abuser, there is no waiver for admitting to violating a drug crime. Finding a drug abuser or addict who has not violated a controlled substance law is not an easy task, and most likely impossible for someone admitting to abusing common drugs like heroin, marijuana, or cocaine in a country that is not a libertarian paradise (or libertarian hell, depending on your politics) or an anarchical state with no drug laws at all.

Besides inadmissibility because of drugs, if Mr. Brand had been convicted of two shoplifting offenses or admitted to two shoplifting offenses, he would be inadmissible for having committed two crimes of moral turpitude, INA § 212(a)(2)(A)(i)(I). One conviction or admission might fall under a petty crime exception, INA § 212(a)(2)(A)(ii)(II), but not two. He might be eligible for a waiver under INA § 212(h), based on extreme hardship to Ms. Perry. In light of her health and wealth, it could be difficult for her to demonstrate the requisite hardship.

There are no details as to other arrests, other than an arrest for battery at LAX. Battery of a stranger alone, according to case law, is ordinarily not a crime that influences admissibility.

Having ascertained that Mr. Brand is quite likely inadmissible to the United States, one may wonder how he enters the United States. In fact, he is supposed to have a six episode program on the FX network this Spring. Perhaps he will make the show outside the United States, like how Roman Polanski, another personage who is persona non grata in the United States, filmed Ghost Writer, or he is being admitted to the United States as a nonimmigrant with a waiver. While Mr. Brand likely cannot become a permanent resident because of non-waivable grounds of inadmissibility, all non-immigrant (temporary) visa inadmissibility, except for terrorists, can be waived pursuant to INA § 212(d)(3). Mr. Brand’s presence in the United States thus can be explained by his receiving non-immigrant visas and a waiver and the assumption that none of Mr. Brand’s arrests were for terrorism actions or connections. Posted December 25, 2011.


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