Admitting Drug Use and Inadmissibility for Permanent Residence

Drug Use and Inadmissibility

All applicants applying for permanent residence to the U.S. must complete a medical examination.  The civil surgeon or panel physician requests a medical history of the applicant, conducts a physical examination, and inquires about physical health and medications the applicant may be taking to ensure any vaccinations required are not contraindicated.

During the course of the medical examination, the civil surgeon or panel physician is instructed to “evaluate the applicant’s history, behavior and physical appearance when determining if drug screening should be performed.”  If the civil surgeon or panel physician reviews the applicant’s medical history with the applicant and finds no signs of drug use or abuse, the civil surgeon or panel physician is instructed to not inquire about recreational drug use.

However, what happens if the applicant admits to drug use, such as recreational use of marijuana, during the medical examination?

In this situation, the civil surgeon or panel physician determines whether the applicant’s drug use should be classified as “drug abuse” or “drug addiction” as defined by the Department of Health and Human Services (HHS):

Drug abuseThe non-medical use of a substance listed in section 202 of the Controlled Substances Act, as amended (21 U.S.C. 802) which has not necessarily resulted in physical or psychological dependence.

Drug addiction: The non-medical use of a substance listed in section 202 of the Controlled Substances Act, as amended (21 U.S.C. 802) which has resulted in physical or psychological dependence.

If the civil surgeon or panel physician determines that the applicant’s drug use is neither drug abuse or drug addiction, then “No Class A or B Substance (Drug) Abuse/Addiction” would be noted in the applicant’s I-693 Report of Medical Examination and Vaccination Record.

However, should the civil surgeon or panel physician determines that the applicant’s drug use is either drug abuse or drug addiction, then a secondary determination is made as to whether the applicant has a “Class A” or “Class B” condition.

Being deemed to have a “Class A” condition would make the intending immigrant inadmissible due to being a “drug abuser or addict” or by having a “physical or mental disorder” associated with harmful behavior.  INA § 212(a)(1)(A)(iv)  or  INA § 212(a)(1)(A)(iii) would subsequently bar the applicant from obtaining permanent residence in the U.S until full sustained remission can be shown.

INA § 212(a)(1)(A)(iv) declares inadmissible any alien “who is determined…to be a drug abuser or addict.”

INA § 212(a)(1)(A)(iii) declares inadmissible any alien: “who is determined… (I) to have a physical or mental disorder andbehavior 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…”

Being deemed to have a “Class B” medical condition is considered to be in full, sustained remission of substance abuse or dependence and is not considered an inadmissible medical condition.

The CDC currently defines sustained, full remission as a period of at least 12 months during which no substance use or mental disorder-associated behaviors have occurred.  The practical significance for diagnosis of remission is that applicants who are determined to be Class A for abuse or addiction for those substances listed in Schedule I through V of Section 202 of the Controlled Substance Act are not eligible for a waiver and must complete the time period for sustained, full remission before reapplying for admission (i.e. at least 12 months).

However, continuing with the example of an applicant who admits to past recreational drug use such as marijuana, a more serious consequence of the admission exists.

Depending on exactly what the applicant admits to during the medical examination, and what the civil surgeon or panel physician explains to the applicant about the illegality of  drug use, the applicant may be inadmissible under INA 212(a)(2)(A)(i)(II).  This section of the INA states that an applicant is inadmissible if he is found to have admitted “committing acts which constitute the essential elements of . . . a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).”

Notice here that mere admission of drug use that would constitute a controlled substance violation is enough to make a person inadmissible.   A conviction is not required.  There is no waiver available.

So what constitutes an admission that could lead to such harsh immigration consequences?

The Board of Immigration Appeals uses the standards set forth in Matter of K, 7 I&N Dec. 594 (BIA 1957)  in determining the requirements for a validly obtained admission: (1) the admitted conduct must constitute the essential elements of a crime in the jurisdiction in which it occurred; (2) the applicant must have been provided with the definition and essential elements of the crime in understandable terms prior to making the admission; and (3) the admission must have been made voluntarily.

Keep in mind however that the Ninth Circuit Court of Appeals has ignored some of the factors in Matter of K.  See Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002).   Consular officers have in the past been extremely strict in effectively banning applicants for life pursuant to INA 212(a)(2)(A)(i)(II).  The trend appears to be for greater leniency in recent years.

The important take away here is that the medical examination can be a perilous process in and of itself for the immigration consequences that can result.  It is extremely important you be honest yet informed about the ramifications of statements made during the immigration medical examination process.