What if she was a foreigner?

Sunday, January 22nd, 2012
By: Jonathan MontagJ.D.

Etta James

Blues, rhythm and blues, rock and roll, soul, gospel and jazz singer, Etta James, who died on January 20, 2012, had she been a foreigner, would not have not been welcome on American shores and would have faced removal.

Reports are that she suffered throughout her life with heroin addiction. She was in the Tarzana Rehabilitation Center in Los Angeles in the early 1970’s and the Betty Ford Center in Palm Springs in the late 1980’s, this time for codeine addiction. She was also arrested for heroin possession in the early 1970’s.

Being a drug abuser or addict is a ground of inadmissibility. INA § 212(a)(1)(A)(iv). Further, conviction for or the admitting to a drug crime is a ground of inadmissibility. INA § 212(a)(2)(A)(i)(II).

While inadmissibility for being a drug addict expires if one can show full remission, admissions of a drug crime  or convictions for a drug crime do not expire – there is no statute of limitations.

Ms. James was also arrested in the early 1970’s, accused of cashing bad checks, forgery, and possession of heroin. A conviction for heroin possession, in addiction to rendering her inadmissible, would also render her deportable. Two crimes of moral turpitude, which intentionally writing a bad check and forgery likely are, also would render her deportable. If she was sentenced to a year or more for a theft offense or defrauded someone of more than $10,000, she would also be deportable as an aggravated felon. INA §§ 101(a)(43)(G) and (M). Even one crime of moral turpitude, if she was sentenced to more than six months in jail or the maximum potential sentence exceeded one year, would render her inadmissible. INA §§ 212(a)(2)(A)(i)(I) and 212(a)(2)(A)(ii)(II). One crime of moral turpitude with a potential sentence of a year or more, if committed within five years of her admission, would also render her deportable. INA § 237(a)(2)(A)(i).

Under current law, to be eligible for this relief (forgiveness) from removal, she would have to have been a permanent resident for five years and have had seven years of residence in the United States after a lawful admission and before the commission of an inadmissible and deportable act. INA §§ 240A(a) and 240A(d). If she were an aggravated felon, she would be ineligible for Cancellation of Removal. INA § 240A(a)(3). Further, under current law, a person can only receive Cancellation of Removal one time. Thus, had Ms. James been forgiven for her first finding of being a drug abuser in the 1970’s, she could not receive Cancellation for a second finding in the 1980’s. The laws were different in those days, and she could have been forgiven twice and could have been forgiven if she was an aggravated felon under the then-extant 212(c) law which required seven years of permanent residence for eligibility.  She could have gotten a nonimmigrant visa with a waiver under INA § 212(d)(3) for a temporary visit. If she did not qualify for forgiveness to keep her permanent residence visa and without a nonimmigrant waiver to come temporarily, she could not come to the United States or stay here at all – All she could do is cry. Posted January 22, 2012.


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