New hope for people who ‘admitted’ drug use to doctors at St. Luke’s
Thursday, 01 October 2009 00:52
Atty. Michael Gurfinkel
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In two recent decisions, the Administrative Appeals Office (AAO) held that when an alien was not given an adequate definition of a drug crime, including all essential elements, any admission or confession by that alien of the crime could not be used against him for immigration purposes. This is great news for people who were refused their visas due to admitting drug use during their medical exam at St. Luke’s, Manila. If they did not receive an adequate definition of the crime, or warning about the consequences of admitting drug use (which is a lifetime ban), there may still be hope!
By way of background, in 2002, the Ninth Circuit Court of Appeals, in Pazcoguin vs. Radcliffe, held that an alien could be banned for life for admitting, to the doctors at St. Luke’s, that the alien had "used" drugs in the past. The ban applied even if the alien was never charged or convicted of any drug crime, and even if his drug test turned out to be "negative." The lifetime ban results from the alien’s mere admission to the doctor or psychiatrist, of the use of marijuana or some other prohibited drugs in the past, even if the use occurred many years ago. Thus, people petitioned by US citizen spouses, other relatives, employers, etc., and had waited years for their petition to be current, found themselves banned for life, when the doctors asked if they ever tried marijuana or other drugs at any time in their life, and they said "yes."
The AAO disagreed with the Ninth Circuit’s reasoning in Pazcoguin. First, the AAO held that because the alien’s residence was in the Philippines, and not the Ninth Circuit (which encompasses the western states), the Pazcoguin case was not controlling authority, and the AAO was not bound by the 9th Circuit’s ruling outside of the Ninth Circuit’s jurisdiction. Second, the AAO stated that AAO "conducts the final administrative review and enters the ultimate decision for US Citizenship and
Immigration Services (USCIS) on all immigration matters that fall within its jurisdiction." Therefore, it would be the AAO, not the Ninth Circuit, that would have the "final say" in cases arising outside the jurisdiction of the Ninth Circuit.Third, in a decision by the Board of Immigration Appeals (BIA), Matter of K, the BIA held that the "validity" of an admission (or confession) for purposes of inadmissibility, required that the alien "be given an adequate definition of the crime, including all essential elements, and that it be explained in understandable terms." The reason for this rule is to ensure that, "the alien would receive fair play and to preclude any possible later claim by him that he had been unwittingly entrapped into admitting the commission of a crime involving moral turpitude." Also, it must be explained in plain English. In these recent AAO cases, (one involving a petition by a US citizen spouse, and the other a petition by a parent), the applicants admitted to drug use only during a medical/psychiatric examination at St. Luke’s, in connection with immigrant visa processing. There was no evidence showing that the applicants were provided with an adequate definition of any crime. Further, the applicants were never charged with, or convicted of, any illicit drug crime.
