Should I assume automatic denial over marijuana possession 15 years ago?

[ajankie5 0]

I filed for my husbands i130 last year and we got our approval notice this past October. I've been collecting police certificates and court documents and I'm starting to panic. He has 5 arrest - 4 which happened 15 years ago when he was 16/17 years old. Im worried about two things. The number of arrests, even though all were without conviction, but he was told to plead guilty so there is a penally of small fines. But there are also two seperate drug related charges. One change is possession of marijuana (1 gram)  and the other is of a pipe. 

 

I spoke to a lawyer and he asked if my husband declared this on his ETSA forms when he visited the states in 2013.  I honestly don't think he did. not to be deceiving anyone but because he though since he was a minor it didn't matter. 

 

Should I be preparing for an automatic denial at the interview? how bad is it about the ETSA form? am I going to have to appeal? 

 

we. have two babies. I can't imagine living outside of America one minute longer. 

[Crazy Cat 41,984]

1.  Pleading guilty is a conviction. 

2.  Misrepresentation is never a good thing.  

3.  US Immigration takes drug charges extremely seriously.

What would you appeal?

Good luck.

[carmel34 3,646]

55 minutes ago, ajankie5 said:

Should I be preparing for an automatic denial at the interview? how bad is it about the ETSA form?

It's hard to say what the officer will decide, based on the prior arrests and conviction (pleaded guilty) for drug possession, and the misrepresentation on the prior visa application, as both can be viewed as cause for denial.  The officer also has some discretion if a waiver is available for one or both, but that will not be considered until the visa interview itself.  One big word of advice--always be 100% honest about everything, and do not try to hide or downplay any of these past problems, as that could make the situation worse.  If a waiver is made available, at the interview, that will add some time to the process, and a good attorney would be helpful to prepare a good waiver package.  If a waiver is not an option, or if it is and it is not successful, you may have to consider moving to Australia if you want to be together.  Good luck!

[Crazy Cat 41,984]

Honestly, I would start researching "Hardship Waivers".....and good attorneys.  Good luck.

[ajankie5 0]

5 minutes ago, carmel34 said:

It's hard to say what the officer will decide, based on the prior arrests and conviction (pleaded guilty) for drug possession, and the misrepresentation on the prior visa application, as both can be viewed as cause for denial.  The officer also has some discretion if a waiver is available for one or both, but that will not be considered until the visa interview itself.  One big word of advice--always be 100% honest about everything, and do not try to hide or downplay any of these past problems, as that could make the situation worse.  If a waiver is made available, at the interview, that will add some time to the process, and a good attorney would be helpful to prepare a good waiver package.  If a waiver is not an option, or if it is and it is not successful, you may have to consider moving to Australia if you want to be together.  Good luck!

I have been living in Australia with him for 6 years. we have two young kids. I hate it here. all our family is back  in the states. I did not see this coming. 

[Crazy Cat 41,984]

14 minutes ago, ajankie5 said:

I have been living in Australia with him for 6 years. we have two young kids. I hate it here. all our family is back  in the states. I did not see this coming. 

He will be asked about drug use.  That, in itself, could cause a delay since some COs require a testing, etc, for a year.  This case just has too many moving parts.  But, as @carmel34 stated, it's hard to know what the Consulate Officer will do.  

[Rocio0010 5,580]

45 minutes ago, ajankie5 said:

I have been living in Australia with him for 6 years. we have two young kids. I hate it here. all our family is back  in the states. I did not see this coming. 

Sorry you're in this tough situation. As someone has pointed out, it's hard to tell what the CO officer will decide. You're at their discretion. I would start building a hardship waiver, and I would not DIY.  Good luck!

[African Zealot 1,455]

Get a very good immigration attorney who is good in waivers is the summary of what I’m reading from everyone. Multiple convictions plus misrepresentation or lying on immigration forms?
 

Time to bring in the mercenary cavalry heavy hitters.

 

Good luck!

[Kai G. Llewellyn 838]

So just to put this out here, I'm not a legal expert but this is my understanding of where things are at. This is definitely not a DIY case. There is possible inadmissibility for both use and conviction of controlled substances and misrep on the ESTA forms. Not good, however waivers might be available...but it would be dependent on the hardship upon you if he wasn't able to obtain an immigrant visa. That might be hard to demonstrate given that you're living with him in Australia right now.

 

The arrests while a minor shouldn't be too problematic...from a cursory look online conviction while a minor is a problem if the minor is tried and convicted in an adult court. However, a conviction for drug use while an adult triggers inadmissibility which must be overcome for him to be issued an immigrant visa. That's not impossible to overcome but it is a challenge for sure.

 

His bigger problem is the misrep for ESTA. If he answered honestly on the ESTA forms, his ESTA should not have been approved, and thereby he was able to obtain admission to the United States because of that incorrect info. That's a big problem. Applying for an immigrant visa involves submitting police records to the Department of State which will indicate the conviction and they'll be able to see that he managed to obtain admission under ESTA. That'll set off alarm bells. A 212(i) wavier could be available for this too, but again he'd need to demonstrate extreme hardship to you in order to overcome the inadmissibility...and I doubt 'hating' Australia would cut it.

 

By my casual understanding here, he needs two waivers for the drug conviction and the misrepresentation. He'll likely undergo drug testing as part of the medical because of that history. It is important at this point that it is extremely important that no further misrepresentation happens otherwise a difficult situation may be made impossible.

 

As I mentioned originally, an attorney will be needed to help build a convincing case for the waivers if you decide to proceed.

 

As an alternative, you might be able to consider another country. The prior drug conviction will be less of a problem for Canada and while US immigration history needs to be declared to Canada, the US misrep would not trigger Canadian inadmissibility. Family could then visit in Canada. It's a long shot, and you might not be eligible under their programs, but it is worth considering.

Edited November 22, 2021 by Kai G. Llewellyn

[Boiler 45,733]

Not enough information on the crimes to make any sensible comment.

 

If a waiver is required then it will be up to the CO. It does not seem likely that there would be no waiver available but details matter.

[Coco8 1,042]

In addition to what everyone else said, current (or recent) use of marihuana will have to come up in the medical. He has to be honest in the medical exam or they could do further medical tests. Lying would be even more trouble and will be a permanent ban. But using marihuana (or any drug) will get a failed medical; I think it's a one year ban and some type of "rehab", though it varies.

Edited November 22, 2021 by Coco8

[ajankie5 0]

8 hours ago, ajankie5 said:

I filed for my husbands i130 last year and we got our approval notice this past October. I've been collecting police certificates and court documents and I'm starting to panic. He has 5 arrest - 4 which happened 15 years ago when he was 16/17 years old. Im worried about two things. The number of arrests, even though all were without conviction, but he was told to plead guilty so there is a penally of small fines. But there are also two seperate drug related charges. One change is possession of marijuana (1 gram)  and the other is of a pipe. 

 

I spoke to a lawyer and he asked if my husband declared this on his ETSA forms when he visited the states in 2013.  I honestly don't think he did. not to be deceiving anyone but because he though since he was a minor it didn't matter. 

 

Should I be preparing for an automatic denial at the interview? how bad is it about the ETSA form? am I going to have to appeal? 

 

we. have two babies. I can't imagine living outside of America one minute longer. 

So how wil

 

1 hour ago, Kai G. Llewellyn said:

So just to put this out here, I'm not a legal expert but this is my understanding of where things are at. This is definitely not a DIY case. There is possible inadmissibility for both use and conviction of controlled substances and misrep on the ESTA forms. Not good, however waivers might be available...but it would be dependent on the hardship upon you if he wasn't able to obtain an immigrant visa. That might be hard to demonstrate given that you're living with him in Australia right now.

 

The arrests while a minor shouldn't be too problematic...from a cursory look online conviction while a minor is a problem if the minor is tried and convicted in an adult court. However, a conviction for drug use while an adult triggers inadmissibility which must be overcome for him to be issued an immigrant visa. That's not impossible to overcome but it is a challenge for sure.

 

His bigger problem is the misrep for ESTA. If he answered honestly on the ESTA forms, his ESTA should not have been approved, and thereby he was able to obtain admission to the United States because of that incorrect info. That's a big problem. Applying for an immigrant visa involves submitting police records to the Department of State which will indicate the conviction and they'll be able to see that he managed to obtain admission under ESTA. That'll set off alarm bells. A 212(i) wavier could be available for this too, but again he'd need to demonstrate extreme hardship to you in order to overcome the inadmissibility...and I doubt 'hating' Australia would cut it.

 

By my casual understanding here, he needs two waivers for the drug conviction and the misrepresentation. He'll likely undergo drug testing as part of the medical because of that history. It is important at this point that it is extremely important that no further misrepresentation happens otherwise a difficult situation may be made impossible.

 

As I mentioned originally, an attorney will be needed to help build a convincing case for the waivers if you decide to proceed.

 

As an alternative, you might be able to consider another country. The prior drug conviction will be less of a problem for Canada and while US immigration history needs to be declared to Canada, the US misrep would not trigger Canadian inadmissibility. Family could then visit in Canada. It's a long shot, and you might not be eligible under their programs, but it is worth considering.

I've seen a few people mention the medical now. how does medical marijuana affect the case? since under federal law its illegal but in around 17 states its not. From what I read the medical officer will ask him if he uses it and it could potential set us back further a year for drug testing... but how does that work if he has a prescription 

[Crazy Cat 41,984]

29 minutes ago, ajankie5 said:

but how does that work if he has a prescription 

Potentially, it could be very bad.  Immigration is a federal matter.  Marijuana is not legal federally.  

 

https://www.ilrc.org/warning-immigrants-about-medical-and-legalized-marijuana

"Based on this, immigrants may reasonably think that using marijuana in accord with state law will not hurt their immigration status. Unfortunately, that's wrong. Marijuana remains a federal controlled substance. In April 2019, USCIS amended its Practice Manual to emphasize that even "legal" conduct involving marijuana is a basis for severe immigration penalties. It provides that noncitizens who admit that they have used marijuana, or been employed in the  legitimate cannabis industry, can be denied naturalization for lack of good moral character. The same conduct can be a basis for a finding of inadmissibility, either as an "admission" of a controlled substance offense or because it gives the government "reason to believe" the person is a drug trafficker. See INA 212(a)(2). Admitting to having possessed marijuana can disqualify an applicant for cancellation of removal, cause any non-citizen, including a permanent resident, to be excluded at the border; and destroy eligibility for family immigration."

 

https://www.nolo.com/legal-encyclopedia/can-green-card-holders-use-medical-marijuana-states-where-its-legal.html

Deportation, Entry Denial, Citizenship Denial, etc., are all possible.

Edited November 22, 2021 by Crazy Cat

[igoyougoduke 1,662]

9 hours ago, ajankie5 said:

I filed for my husbands i130 last year and we got our approval notice this past October. I've been collecting police certificates and court documents and I'm starting to panic. He has 5 arrest - 4 which happened 15 years ago when he was 16/17 years old. Im worried about two things. The number of arrests, even though all were without conviction, but he was told to plead guilty so there is a penally of small fines. But there are also two seperate drug related charges. One change is possession of marijuana (1 gram)  and the other is of a pipe. 

 

I spoke to a lawyer and he asked if my husband declared this on his ETSA forms when he visited the states in 2013.  I honestly don't think he did. not to be deceiving anyone but because he though since he was a minor it didn't matter. 

 

Should I be preparing for an automatic denial at the interview? how bad is it about the ETSA form? am I going to have to appeal? 

 

we. have two babies. I can't imagine living outside of America one minute longer. 

Get a good lawyer if you can afford it

[Coco8 1,042]

1 hour ago, ajankie5 said:

... but how does that work if he has a prescription 

You need a lawyer.

 

Medical use of marihuana has not been approved at the federal level. The FDA has approved two or three medications derived from CBD for very specific illnesses https://www.fda.gov/news-events/public-health-focus/fda-regulation-cannabis-and-cannabis-derived-products-including-cannabidiol-cbd#approved

 

That's very different. Plus, he has charges related to marihuana and other drugs that predate this prescription. In the consulate's eyes, the drug use predates the reason for the prescription. 

 

I think it bears adding that even if you move to the US and he has a green card, green card holders can get into trouble for buying/using marijuana, even in legal states. That's because the status depends on federal level. https://www.nolo.com/legal-encyclopedia/can-green-card-holders-use-medical-marijuana-states-where-its-legal.html