Marijuana conviction - Inadmissable or not?

[Campanita 0]

Here is situation: Husband is permanent resident of US (4 years). 9 months ago he was convicted of a first time simple marijuana possession (less than 30 grams), no jail time, 3 years unsupervised probation. We live in 9th Circuit District. He was told by attorney he could travel back to his home country, which he did. He is now coming back and I suspect the attorney was mistaken and he is going to have trouble upon arrival at the airport.

My confusion: Is he inadmissable or not, I cant figure it out and i dont have $2000 to get another lawyers opinon. If he is inadmissable, can he apply for waiver on the spot (he has not been in the country more than 7 years)? OR IS he admissable because his convicted crime was punishable by less than 1 year, etc.: See Exeception clause below and if you know the answer PLEASE HELP. I am worried, as you can imagine.

INA § 212(a)(2)(A)(i)(II)

(II) a violation of relating to a controlled substance is inadmissible.

(ii) Exception Clause

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

[canadian_wife 1,822]

Laurel Scott (scottimmigration.net) offers free immigration chats on Wednesday, perhaps you could go there for your answer. You're dealing with tricky immigration law right now so I'm not sure if this site can give you what you need.

Good luck.

[milimelo 4,479]

Laurel Scott (scottimmigration.net) offers free immigration chats on Wednesday, perhaps you could go there for your answer. You're dealing with tricky immigration law right now so I'm not sure if this site can give you what you need.

Good luck.

Her husband is PR so no issues. Issue would be if he was applying now for immigrant visa. You may want to wait a while before applying for citizenship.

[JimVaPhuong 4,863]

Her husband is PR so no issues. Issue would be if he was applying now for immigrant visa. You may want to wait a while before applying for citizenship.

Usually, this is true. A returning permanent resident is generally not considered to be "seeking admission", so the normal inadmissibilities would not apply. However, INA section 101(a)(13)(C ) spells out some exceptions. Among the exceptions are abandoning residency, absence of more than 180 days, illegal activity outside the US, leaving while removal proceedings are in process, and (unfortunately) an offense as described in 212(a)(2). A controlled substance offense would fit this description. He may need a one-time waiver of this offense in order to be readmitted.

[Brother Hesekiel 2,236]

Among the exceptions are abandoning residency, absence of more than 180 days, illegal activity outside the US, leaving while removal proceedings are in process, and (unfortunately) an offense as described in 212(a)(2). A controlled substance offense would fit this description. He may need a one-time waiver of this offense in order to be readmitted.

Jim,

when the CBP officer scans the LPR's GC at the POA, will the conviction come up on his screen? If not, how would he know?

[Campanita 0]

I am pretty sure convictions do show up on the screens. That is what worries me.

JIM,

The INA 212(a) is what I was referring to. There seems to be an exception clause (for which my husband falls under). So that is why I am not sure if he is safe or does need that waiver. Can we apply for waiver on the spot if he needs it?

INA § 212(a)(2)(A)(i)(II)

(II) a violation of relating to a controlled substance is inadmissible.

(ii) Exception Clause

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

[Brother Hesekiel 2,236]

I doubt that convictions are automatically submitted to the immigration system and even more I doubt that those things show up at the CBP screen.

An outstanding warrant, yes, failure to appear in court to an immigration hearing, yes, in short all issues tightly connected to immigration, but not a minor conviction.

If, and only if USCIS would know about it, which I doubt, as I believe they only learn about it when inquiring to the database (i.e., when a citizenship application is submitted), and they feel the GC holder has violated his trust as an upstanding resident of moral character, they would have contacted him already.

Again, I don't know for sure, but given how little communication exists between immigration and other law enforcement agencies, I have my doubts that they even know about it. That's why I suggest to let the citizenship issue rest for several years until all of the pot stuff is water under the bridge. Why stepping onto the sleeping lion's tail?

Edited April 9, 2010 by Just Bob

[JimVaPhuong 4,863]

I am pretty sure convictions do show up on the screens. That is what worries me.

JIM,

The INA 212(a) is what I was referring to. There seems to be an exception clause (for which my husband falls under). So that is why I am not sure if he is safe or does need that waiver. Can we apply for waiver on the spot if he needs it?

INA § 212(a)(2)(A)(i)(II)

(II) a violation of relating to a controlled substance is inadmissible.

(ii) Exception Clause

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

That "exception clause" is for (i)(I). His violation is paragraph (i)(II). Take another look at the text of the act.

All is not lost, however. Paragraph (F ) says that violations of 212(a)(2) are waiver authorized, as described in subsection (h). INA 212(h) reads:

(h)The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana if-

(1) (A) in the case of any immigrant it is established to the satisfaction of the Attorney General that-

(i) the alien is inadmissible only under subparagraph (D)(i) or (D)(ii) of such subsection or the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien's application for a visa, admission, or adjustment of status.

(ii) the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States, and

(iii) the alien has been rehabilitated; or

(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien; or 25c

I don't know enough about cases of this sort to know how the process would be handled. My guess is that CBP would find him inadmissible, seize his green card, and deny him entry. He'd have to go to a US consulate in a foreign country and apply for a Special Immigrant Visa, which would be denied because of the inadmissibility. At that time, he could apply for the waiver.

[justashooter 430]

CBP has access to NICS. this conviction would appear on NICS.

[coraliesolms 47]

Border patrol has access to EVERYTHING, even my hubbies arrests showed up (even though the charges were ultimately dropped).

[Campanita 0]

Thanks everyone for your input. I consulted with an immigration attorney who specializes in the kind of stuff and got my answers.

[VanessaTony 3,567]

Thanks everyone for your input. I consulted with an immigration attorney who specializes in the kind of stuff and got my answers.

Can you post your answers so as to help another if they are in your situation?

[belinda63 3,038]

Yep Bob, when I the US citizen, came back from Europe everything was showing in the computer. I had to go through additional processing before being allowed to enter my own country.

[justashooter 430]

Yep Bob, when I the US citizen, came back from Europe everything was showing in the computer. I had to go through additional processing before being allowed to enter my own country.

from your comments we assume that you are a naturalised USC. if so your citizenship is conditional. it can be revoked for a wide variety of reasons.

[belinda63 3,038]

Nope native Texan, born and bred