Banned for life?

[Back2back 1]

Aaaand there it is 

[OptimusSpice 164]

People don't post a whole lot of details about CIMTs and especially drug related offenses.  I understand those who think it is black and white - but the entire process is based on discretion of the officer.  There are MANY factors involved.  Good attorneys have posted reports of approved waivers for all kinds of things - including drug related offenses and multiple CIMTs.  I didn't repost everything I've found in hundreds of hours of research.  So really, unless you have personally been there and walked through it - none of us know exactly how it would go down.  I'm still in the middle of our situation - and no, we don't have a conviction issue, but we still are required to get a waiver - and that process is taking a long time.  Waivers are 12-15 months to get processed right now.  So IDK how it will go - but damn - unless you know for a fact that there is no legal option, there's no reason to say that it's hopeless.  Back2Back -IMHO - talk to a lawyer.  A good one.  Lizz Cannon is highly recommended not only on this forum, but also in 3 others I follow and in the FB group for I-601 waivers.  It might be worth it to giver her a phone call and see.  Based on what you've said - the drug possession charge may actually fit within the bounds of the 30mg possession, and the other drug related charge is not about personal possession or use, so it may fall under a different category of CIMT.  Ultimately it'll be up to you if you try for it, with or without a lawyer, but there will be a limit to what you can find online.  

 

http://www.smartimmigrationlawyer.com/i-601-waiver-212h-waiver-crime-involving-moral-turpitude/

https://www.imwong.com/about-us/success-stories/success-stories-criminal/

 

this is from another vj forum post:

Two good lawyers to consult with are Laurel Scott at http://visacentral.net/ and Heather Poole at http://www.humanrightsattorney.com/. I highly suggest that you get some good legal advice. Some drug convictions can be overcome with a waiver, depending upon the charges, length of time since offense occured, evidence of rehabilitation etc.

[jan22 3,056]

12 hours ago, OptimusSpice said:

People don't post a whole lot of details about CIMTs and especially drug related offenses.  I understand those who think it is black and white - but the entire process is based on discretion of the officer.....

This is not accurate.  The entire process is based on immigration law.  There is very little in the laws for immigrant visas that allow an officer to exercise his/her discretion.  Drug convictions are not among those limited areas of discretionary authority.  (Not referring here to drug use/abuse; rather, drug convictions.)

[NikLR 13,227]

Definitely beyond the scope of a DIY forum regardless.  

 

Canada requires rehab for even a DUI. 

[OptimusSpice 164]

3 hours ago, jan22 said:

This is not accurate.  The entire process is based on immigration law.  There is very little in the laws for immigrant visas that allow an officer to exercise his/her discretion.  Drug convictions are not among those limited areas of discretionary authority.  (Not referring here to drug use/abuse; rather, drug convictions.)

Actually THIS is NOT accurate - Waivers are framed by immigration law but the entire point of the waiver process and the letters of hardship, incident statement, and section TITLED "DISCRETION STATEMENT" where you plead your case on WHY THE REVIEWING OFFICER should EXERCISE DISCRETION and approve the waiver is because there IS room for discretion.  If it is simply black and white then NONE of the cases that are reported as "Waiver approved for (insert banned offence here)" would be false.  The bans themselves are pretty black and white - and even then the Consular Officers have exercised some level of discretion (several cases of things that could have been denials were approved at the consular level) but the WAIVER process is significantly less black and white.  

[geowrian 22,337]

11 minutes ago, OptimusSpice said:

Actually THIS is NOT accurate - Waivers are framed by immigration law but the entire point of the waiver process and the letters of hardship, incident statement, and section TITLED "DISCRETION STATEMENT" where you plead your case on WHY THE REVIEWING OFFICER should EXERCISE DISCRETION and approve the waiver is because there IS room for discretion.  If it is simply black and white then NONE of the cases that are reported as "Waiver approved for (insert banned offence here)" would be false.  The bans themselves are pretty black and white - and even then the Consular Officers have exercised some level of discretion (several cases of things that could have been denials were approved at the consular level) but the WAIVER process is significantly less black and white.  

Depends if it's a waivable inadmissibility or not. Some inadmissibilities are not waivable, which is not a discretionary action.

[Boiler 45,670]

Not everything is waiverable so the issue to be waived has to pass that test first. When the CO declines then you will know if a waiver is available.

[OptimusSpice 164]

15 minutes ago, OptimusSpice said:

Actually THIS is NOT accurate - Waivers are framed by immigration law but the entire point of the waiver process and the letters of hardship, incident statement, and section TITLED "DISCRETION STATEMENT" where you plead your case on WHY THE REVIEWING OFFICER should EXERCISE DISCRETION and approve the waiver is because there IS room for discretion.  If it is simply black and white then NONE of the cases that are reported as "Waiver approved for (insert banned offence here)" would be false.  The bans themselves are pretty black and white - and even then the Consular Officers have exercised some level of discretion (several cases of things that could have been denials were approved at the consular level) but the WAIVER process is significantly less black and white.  

**correction** none of the approved waivers would be ACCURATE

[OptimusSpice 164]

True, it does need to be waiverable.  But talking to a lawyer well versed in in immigration law, waivers, and CIMTs in particular can reveal situations that may not be as easily discovered in a forum.  This article does conclude that yes, it needs to be waiverable, but it also shows how it's not an exact black and white science.  

 

https://www.khurgel.com/family-based-immigration/waivers-of-inadmissibility/crimes-involving-moral-turpitude-in-the-visa-and-adjustment-of-status-context/

[Boiler 45,670]

6 minutes ago, OptimusSpice said:

True, it does need to be waiverable.  But talking to a lawyer well versed in in immigration law, waivers, and CIMTs in particular can reveal situations that may not be as easily discovered in a forum.  This article does conclude that yes, it needs to be waiverable, but it also shows how it's not an exact black and white science.  

 

https://www.khurgel.com/family-based-immigration/waivers-of-inadmissibility/crimes-involving-moral-turpitude-in-the-visa-and-adjustment-of-status-context/

Criminal Inadmissibility: An immigrant denied admission to the U.S. due to a criminal history may have certain qualifying crimes waived – including prostitution, crimes of moral turpitude, and some marijuana crimes. Waivers for aggravated felonies, torture, murder and most controlled substance violations are not permitted.

 

https://www.khurgel.com/family-based-immigration/waivers-of-inadmissibility/

[OptimusSpice 164]

I was agreeing that it does need to be waiverable and yes there are things that aren't.  I'm also trying to show that it is in fact more complicated than average forum participants will be able to say conclusively.  Unless I'm reading it wrong, it would seem that OP's case likely needs consult with a lawyer and is beyond the scope of knowledge in the forum.  Yes, there are things that are not waiverable.  Yes there are things that are. 

 

According to the "black and white" view - the previously linked forum case where the applicant admitted to using more than one controlled substance and obtained letters from rehab and what not would have absolutely required a waiver and that waiver would have absolutely been denied.  The statutes that we are all able to find clearly state in no uncertain black and white terms that EVEN THE ADMISSION to a controlled substance violation is to be treated THE SAME as a conviction.  Obviously THAT is not happening.  People ARE admitting to use.  They are admitting to more than one offence, more than one drug, admitting to addictions, showing proof of rehab, etc - and they were not even required to obtain a waiver let alone have the waiver denied.  So that example alone demonstrates that while we can all find the absolute black and white in print of it - there MUST be something we DON'T KNOW that the Consular Officers, Reviewing Officers at NSC, and Lawyers DO KNOW.  According to the "black and white" view - no one who ever admits to more than 1 use/possession of 30g or less of marijuana would EVER be granted a visa.  No one with more than one "caution", no one with more than one "conviction", no one with more than one "admission" would ever be granted a visa and there are cases where there are multiple admissions/cautions/convictions and people are being granted visas at the Consular level, and people are being granted waivers if the CO says it's needed.  

 

 

 

[LionessDeon 2,060]

My now husband had one drug charge on his record and was approved with a waiver.  I know its only one, but I am here as a person who has been through the waiver experience and it was nothing nice.  We hired very knowledgeable and experienced immigration waiver attorney Lizz Cannon.  She gives free consults and I HIGHLY recommend you at least speak with her.    

Could you do a waiver yourself without an attorney??  Sure and I have read some posts of those who did that and were successful, but I don't recommend it.  Our waiver packet contained a 10 page brief and 27 exhibits.  It took 10 months to get approved.  It was a terrible, stressful, and frustrating process.  I don't know how we would've managed it without Lizz Cannon.  We hit a road block in our process and she happened to be at a conference with immigration ombudsmen and other officials.  She spoke with them about our case and it finally made headway.  There is absolutely no way any of us laymen would have that connection.

 

My point is - you never know what unforeseen issue can come up during your process.  You have not one but two incidents.  NO WAIVER  is ever exactly the same.  There are so many variables from charges, convictions, consulate, adjudicator, etc one could never make a comparison.  Research, learn, and consult with a reputable experienced immigration waiver attorney.

Edited December 18, 2017 by LionessDeon

[jan22 3,056]

18 hours ago, OptimusSpice said:

Actually THIS is NOT accurate - Waivers are framed by immigration law but the entire point of the waiver process and the letters of hardship, incident statement, and section TITLED "DISCRETION STATEMENT" where you plead your case on WHY THE REVIEWING OFFICER should EXERCISE DISCRETION and approve the waiver is because there IS room for discretion.  If it is simply black and white then NONE of the cases that are reported as "Waiver approved for (insert banned offence here)" would be false.  The bans themselves are pretty black and white - and even then the Consular Officers have exercised some level of discretion (several cases of things that could have been denials were approved at the consular level) but the WAIVER process is significantly less black and white.  

But the post was about the consular officer's discretion in the visa process; your reply, however, is focused on the waiver process.   Consular officers only decide ineligibiltIes for the visa, based on law and not on their discretion.  They do not decide the outcome of waivers...that is a USCIS function.  For IVs, unlike NIVs, they don't even make a recommendation regarding the waiver.

[OptimusSpice 164]

SMH....the original post did inquire if a waiver was possible or if the OP was banned for life.  So the waiver information is relevant.  Also, discretion is used at the Consular level or no one ever admitting to any use would be approved without a waiver.  I've included another post of someone who admitted to using both marijuana and cocaine and was approved at the consular level without a waiver.  One of the other posts I linked earlier the person admitted to heavy use and showed evidence of rehab and they were approved without a waiver.  If it is so "black and white" and there is zero discretion at the Consular level, then these cases and quite a few others like them would not have been approved without a waiver - since the black and white letter of the law states that admission of a controlled substance violation is to be treated the same as a charge/conviction and even revocation of the admission, if the reviewing officer feels that the admission still demonstrated a violation of controlled substance law, they can still find someone inadmissible.  Per the letter of the law, no one who ever admits to use of any kind should be found admissible.  Every single one should require a waiver.  That is simply not what is happening.  So there MUST be discretion available at the consular level. I'll include another case of admission to experimental use that was approved at the consular level for K-1 just to show that it's not based on type of visa.  Again - if it was black and white and the consulate has zero discretion, this case would also have been denied and the person would be required to get a waiver.  Some admissions get approved at the Consular level, some require a waiver.  OP's case, with multiple charges/convictions will likely be denied at the Consular level and then OP would likely be required to obtain a waiver.  OP will also likely need to talk to a good lawyer because it is more complex than simple one time experimental use admission.  Exactly how much discretion the Consulate has, and exactly how much discretion the reviewing officer has in the waiver process is something that I have yet to find any absolute clear cut information on.  Lawyers tracking rulings daily are able to submit briefs showing various precedents being established in the courts.  It's not black and white.  No one in this forum can say with absolute certainty that the OP is banned for life and has zero hope or chance of any other outcome.  No one in this forum can say with absolute certainty that the OP would have a positive outcome either.  All any of us can do is read the experiences of others and share opinions.  OP asked if anyone had heard of multiple drug issues being waived.  I have heard of cases with multiple drug issues being waived.  I have heard of cases where multiple drugs admissions (mj and ecstacy - link shared earlier, mj and cocaine - link shared in this post) - even though ADMISSION is BY THE LAW the SAME as conviction because it is still a violation of the law - being approved at the consular level.  Again - it is obviously not as black and white as some would like to believe.

 

 

 

[Boiler 45,670]

Question was about someone with 2 convictions.