Banned for life?

[jan22 3,070]

22 hours ago, OptimusSpice said:

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.

 

 

 

There is a huge difference between admitting to the use of a controlled substance and being convicted of the same. The cases that you have cited concerning individuals that did not need a waiver appear to all be cases in which an individual admitted use, but there was no conviction. You state that the law says it is the same whether a person is convicted of a controlled substance crime or the person admits to using a substance.  That is not actually accurate. The law says that when a person "...admits to committing acts which constitute the essential elements of...a violation...of any law..." involving a controlled substance, they are ineligible for a visa.  There are specific Iegal requirements of what constitutes admitting the "essential elements" of a violation.  Mere admission of use does not meet that requirement.  Short of a conviction, it is basically impossible for a consular officer to determine that all of the essential elements were included in an admission of use; therefore, the person cannot be found ineligible and no waiver is needed.  (The panel physician can still determine, based on an admission of use, that the person is a substance abuser and the applicant is ineligible under medical grounds -- but that's a different standard, with different consequences.)

 

Sorry, but it is pretty black and white -- one conviction for a small amount of marijuana is waiverable for IVs.  A larger amount and/or multiple convictions for controlled substances on the Controlled Substance Act list, mean no waiver is available.

 

 

Edited December 20, 2017 by jan22

[jan22 3,070]

Sorry...double posted.

Edited December 20, 2017 by jan22

[OptimusSpice 164]

9 FAM 302.4-2(A)  (U) Grounds

(CT:VISA-344;   04-18-2017

(U) INA 212(a)(2)(A)(i)(II) renders ineligible any alien with past convictions for (or who admits having committed, or who admits committing acts constituting), a violation of, or 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).  Note that whether or not a controlled substance is legal under a state law is not relevant to its illegality under federal law.

 

We are currently in the waiver process for admission only, no charges, no convictions.  Admission in our case has been treated exactly the same as having a conviction.  My Congressman's office did feel that we were not being treated fairly and did inquire both at Sydney and Nebraska, but they were told by Sydney that there is nothing they will do to change the decision and we are still required to obtain a waiver and Nebraska said that we fall within normal processing times and do not have grounds for expedition so there is nothing they will do either.  Even with the presentation of multiple cases around the globe and at Sydney's office where the admission of use was not being required to obtain a waiver.  For us, the letter of law has been applied.  So I can say from personal experience that admission can and does get treated the same as a conviction.  You do not know for a fact that the OPs case has no waiver available.  The case linked earlier that had multiple charges "cautions" and "convictions" - absolutely falls within the letter of the law for multiple "acts constituting" a controlled substance violation and they obtained a waiver.

[Lemonslice 5,002]

4 minutes ago, OptimusSpice said:

9 FAM 302.4-2(A)  (U) Grounds

(CT:VISA-344;   04-18-2017

(U) INA 212(a)(2)(A)(i)(II) renders ineligible any alien with past convictions for (or who admits having committed, or who admits committing acts constituting), a violation of, or 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).  Note that whether or not a controlled substance is legal under a state law is not relevant to its illegality under federal law.

 

We are currently in the waiver process for admission only, no charges, no convictions.  Admission in our case has been treated exactly the same as having a conviction.  My Congressman's office did feel that we were not being treated fairly and did inquire both at Sydney and Nebraska, but they were told by Sydney that there is nothing they will do to change the decision and we are still required to obtain a waiver and Nebraska said that we fall within normal processing times and do not have grounds for expedition so there is nothing they will do either.  Even with the presentation of multiple cases around the globe and at Sydney's office where the admission of use was not being required to obtain a waiver.  For us, the letter of law has been applied.  So I can say from personal experience that admission can and does get treated the same as a conviction.  You do not know for a fact that the OPs case has no waiver available.  The case linked earlier that had multiple charges "cautions" and "convictions" - absolutely falls within the letter of the law for multiple "acts constituting" a controlled substance violation and they obtained a waiver.

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