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Substance Use, Health-Related Inadmissibility and Waivers
||2016-05-07 19:52:06, 조회 : 223, 추천 : 79
The apprehension in the silence on your client’s end of the phone is palpable. His case initially seemed straightforward, even predictable, to you. But then something unexpected happened at the medical examination.
He explains: “Well… um… the doctor really focused in on some questions when I went in. A couple of months back, I was at my neighbor’s, and there were some drugs there. When the doctor asked if I had ever done illegal drugs, I said, ‘well, not me, but I was at my neighbor’s, you know, this party, and I didn’t do any but they were there around me. Since I didn’t do any, they shouldn’t show up on any test, but I was right there, so…’ The doctor asked me again if I had ever done any drugs, and I said, ‘well, yeah, not that time, but I did just try marijuana a couple of times. That was about a year ago, though; since then, never again, and I never got charged or convicted of anything. Is this going to be a problem for my case???”
The short answer for this client is: yes, it could be a problem and it may even result in denial of his case. In fact, any applicant for U.S. immigration benefits who has even a minor history of substance use may be subjected to scrutiny upon consular processing of their visa or adjustment of status. This is not only limited to applicants who have a history of drug use, but may also include applicants who have struggled with alcoholism. DOS and USCIS have also recently increased scrutiny on applicants with a
history of arrests or convictions for alcohol-related offenses, including Driving Under the
This article will focus on how U.S. immigration authorities define and identify substance use as a health-related ground of inadmissibility, and how they determine whether an applicant’s substance use actually triggers inadmissibility. It also discusses what appeals of these determinations may be made and what waivers of inadmissibility are available. Understanding this topic is important for practitioners, especially because substance use issues are frequently undisclosed or underreported by clients, and they may arise unexpectedly at critical stages of a case.
HEALTH-RELATED INADMISSIBILITY BASED ON SUBSTANCE USE
An applicant’s history of substance use can trigger health-related inadmissibility under two distinct sections of the INA.
* Andrew J. Stevenson is an Associate in the law firm Wolfsdorf Immigration Law Group, LLP in Santa Monica, California. He practices exclusively in the area of immigration and nationality law, focusing primarily on inadmissibility issues and waivers, immigration analysis of U.S. and foreign criminal convictions, and family-based immigration. He has published a number of articles and received the American Immigration Law Foundation’s Edward L. Dubroff Award for excellence in scholarly writing on immigration. He is a member of the California State Bar and AILA, and is a liaison to U.S. Customs and Border Protection for AILA's Southern California chapter.
First, INA § 212(a)(1)(A)(iv) declares inadmissible any alien “who is determined
… to be a drug abuser or addict.” This section is applied against applicants who have engaged in non-medical use of psychoactive substances. It is not necessarily limited to illegal drug use.
Second, INA § 212(a)(1)(A)(iii) declares inadmissible any alien:
who is determined… (I) to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, or (II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior…
Drug or alcohol use may be deemed a “mental disorder” under this section. This ground of inadmissibility may be applied against applicants who have a history of drug- or alcohol-related incidents, arrests or convictions1 that have involved personal injury or property damage.
In order to be declared inadmissible pursuant to either of these sections, a civil surgeon or panel physician must examine the applicant and classify them as having a “Class A” condition. The civil surgeon or panel physician’s Class A diagnosis would confirm that the applicant is a “drug abuser or addict” or has a “physical or mental disorder” with associated harmful behavior,2 and would automatically trigger inadmissibility.3
Alternatively, the civil surgeon or panel physician could classify the applicant as having a “Class B” condition, either as a drug abuser or addict in remission, or as a person with a mental disorder which is controlled by medication or in remission with no associated harmful behavior. A Class B diagnosis does not render the applicant inadmissible on health-related grounds,4 although it does suggest to immigration authorities that follow-up medical care may be necessary in the United States.5
1 In addition to health-related inadmissibility, it is important to keep in mind that applicants with any criminal convictions related to drugs or alcohol may also be subject to criminal inadmissibility at INA §
2 See 42 CFR § 34.2(d).
3 See 9 FAM 40.11 N3.3(1) (DOS); AFM ch. 23.3(a).
4 See 9 FAM 40.11 N3.3(2) (DOS); AFM ch. 23.3(a).
5 If the reviewing physician deems the applicant will necessarily or likely undergo medical treatment in the
United States related to this diagnosis, this could lead to public charge inadmissibility issues. See Centers for Disease Control and Prevention, Division of Global Migration and Quarantine, Instructions to Panel Physicians for Completing New U.S. Department of State MEDICAL EXAMINATION FOR IMMIGRANT
OR REFUGEE APPLICANT (DS-2053) and Associated WORKSHEETS (DS-3024, DS-3025, and DS-
3026), available at: http://www.cdc.gov/Ncidod/dq/pdf/ds-forms-instructions.pdf, [hereinafter Panel Physicians Forms Instructions] at 1 (noting that one purpose of the migration health assessment is to “determine if medical conditions or mental disorders exist that would… [r]equire the applicant to receive
U.S. GOVERNMENT DEFINITIONS AND CLASSIFICATIONS OF INADMISSIBILITY
“Drug Abusers or Addicts”
Federal regulations and policy define which applicants may be classified as “drug abusers” and “drug addicts,” and provide substantial guidance as to how applicants can
be accordingly found inadmissible.
42 CFR § 34.2(g) defines “drug abuse” as the “non-medical use of a controlled substance listed in section 202 of the Controlled Substances Act,6 as amended (21 U.S.C.
802), which has not necessarily resulted in physical or psychological dependence.”7
Similarly, 42 CFR § 34.2(h) defines “drug addiction” as the “non-medical use of a controlled substance listed in section 202 of the Controlled Substances Act… which has resulted in physical or psychological dependence.”8 The Technical Instructions written by the CDC’s Division of Global Migration and Quarantine for Civil Surgeons and Panel Physicians clarify that “non-medical use” of “psychoactive substances” not listed in the Controlled Substances Act can also be grounds for a finding of drug abuse or addiction, but only if such use has resulted in “harmful or dysfunctional behavior patterns…or physical disorders.”9
The phrase “non-medical use”—a central part of the regulatory definition for “drug addiction” or “drug abuse”—is defined as “more than experimentation with the substance.”10 Although “experimentation” is not explicitly defined, the Technical Instructions provide the example of “a single use or marijuana or other non-prescribed psychoactive substances such as amphetamines or barbiturates.”11 According to this strict definition, any applicant who has used marijuana, cocaine, amphetamines, barbiturates or any other controlled substance more than once may be declared inadmissible as a “drug abuser.”12
long-term institutionalization or maintenance income provided by the U.S. government after resettlement that is the become a public charge”).
6 Section 202 of the Controlled Substances Act lists a wide range of substances, from “commonly abused”
illicit drugs to prescription drugs with widely accepted medical uses.
7 (Emphasis added).
8 (Emphasis added). Note that a criminal conviction classifying the defendant as an “addict” is not necessarily determinative for immigration purposes. See Matter of K-C-B, 6 I&N Dec. 274 (BIA 1954).
9 See Centers for Disease Control and Prevention, Division of Global Migration and Quarantine, Technical
Instructions for Medical Examination of Aliens [for panel physicians]; Centers for Disease Control and Prevention, Division of Global Migration and Quarantine, Technical Instructions for Medical Examination of Aliens in the United States [for civil surgeons], § III(C)(2)(a)(2), available at http://www.cdc.gov/NCIDOD/dq/technica.htm [collectively hereinafter “CDC-DGMQ Technical Instructions”].
10 Id. at § III(C)(2)(c). See also 9 FAM 40.11 N9.1(c).
11 CDC-DGMQ Technical Instructions, § III(C)(2)(c). See also 9 FAM § 40.11 N9.1(c).
12 AILA, through its DOS liaison committee, has vigorously contested the Technical Instructions’ definition of “drug abuse” as overly broad, alleging that it is inconsistent with CDC’s Instructions to Panel Physicians for Completing Medical History and Physical Examination Worksheet (DS-3026). See AILA,
“Practice Alert on ‘Drug Abuser or Addict’ Grounds of Inadmissibility,” published on AILA InfoNet at
Notwithstanding the number of times an applicant may have engaged in substance use, the recency of substance use is also a critical element in determining inadmissibility. The Technical Instructions state that an applicant who is currently using or has used a controlled substance in the past three years will be classified with a Class A condition13 and will be declared inadmissible. The Instructions clarify that use of any controlled substance in the past three years is “illegal and qualifies as a Class A condition, whether
or not harmful behavior is documented.”14 Any applicant who has used an unlisted (i.e. non-controlled) psychoactive substance in the past two years will also be classified with a Class A condition and declared inadmissible.15
In contrast, any applicant who has a history of substance use, but has not used a controlled substance in the past three years and has not used an unlisted psychoactive substance in the past two years will be considered in “remission.” The Technical Instructions direct that applicants in “remission” should be classified with a Class B condition, and thus should not be automatically declared inadmissible as “drug abusers or addicts.”16
To aid panel physicians and civil surgeons in distinguishing between circumstances warranting Class A and Class B determinations, the Technical Instructions include a Table entitled “Reporting Results of Evaluation for Psychoactive Substance Abuse.”17 A copy of this table is attached to this article as Appendix 1.
Drug- and Alcohol-Related Offenses as “Mental Disorders” with Associated Harmful
Federal policy and practice manuals also define when incidents of substance use may be classified as mental disorders with associated harmful behavior sufficient to trigger health-related inadmissibility.
Doc. No. 06020110 (posted Feb. 1, 2006), at 2. The CDC’s instructions to panel physicians completing Medical History Form DS-3026 appear to imply that the phrase “drug abuse” should be defined as a “maladaptive pattern of substance use” leading to “recurrent” or “continued use,” as directed by the Diagnostic and Statistical Manual of Mental Disorders. See Panel Physicians Form Instructions, supra note 5, at 11. Accordingly, AILA-DOS liaison attorneys argued that a panel physician’s analysis of whether an applicant is a “drug abuser” use should be made not just in light of the number of times of use, but also with regard to whether the applicant’s use represents a “maladaptive pattern.” However, AILA’s appeals to DOS have not resulted in any policy changes, as DOS subsequently directed consular officers to defer to the “professional judgments” of CDC’s panel physicians. See AILA, “Visa Office Clarification on
Drug Abuse/Addict Ineligibility Standard,” published on AILA InfoNet at Doc. No. 06052460 (posted May
24, 2006), at 1-2. In the aftermath of these liaison inquiries, consular practitioners consistently report that panel physicians make Class A findings of “drug abuse” according to the strict definition of the Technical Instructions—when an applicant has used a controlled substance more than once, and the last use occurred within the past three years.
13 See CDC-DGMQ Technical Instructions, § III, Table 6.
14 Id. at § III(C)(2)(a)(1).
15 See id. at § III, Table 6.
16 See id.
The Technical Instructions indicate that alcoholism, alcohol abuse and drug abuse can all be classified as “mental disorders.”18 However, “the mere presence of a physical or mental disorder does not by itself render [an] applicant ineligible” for a visa.”19 In
order for an applicant to be inadmissible, one or more incidents of substance use “must be associated with a … display of harmful behavior.”20
“Harmful behavior” is defined as “a dangerous action or series of actions by the alien that has resulted in injury (psychological or physical) to the alien or another person, or that has threatened the health or safety of the alien or another person, or that has resulted in property damage.”21 A criminal conviction “is not determinative” as to whether the applicant has a history of harmful behavior.22 Therefore, the nature of the behavior must be qualitatively examined by the medical examiner.23
Generally, the Technical Instructions direct that Class A certifications should only be made under this section if an applicant currently engages in substance use associated with harmful behavior, or has a history of substance use with harmful behavior which is likely to recur.24 Conversely, if an applicant’s pattern of substance use and associated harmful behavior is controlled by medication25 or is in remission,26 and thus the harmful behavior is unlikely to recur, a Class B diagnosis may be made.27
Similar to the table regarding drug abuser or addict determinations, the Technical Instructions also include a Table entitled “Reporting Results of Evaluation for Mental and Physical Disorders with Associated Harmful Behavior.”28 A copy of this table is attached to this article as Appendix 2.
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