UNCLASSIFIED (U)

9 FAM 302.4

(U) Ineligibility based on Controlled Substance Violations - INA 212(a)(2)(A)(i)(II) and INA 212(a)(2)(C)

(CT:VISA-884; 07-02-2019)
(Office of Origin: CA/VO/L/R)

9 FAM 302.4-1 (U) Statutory and REgulatory Authority

9 FAM 302.4-1(A) (U) Immigration and Nationality Act

(CT:VISA-206; 09-30-2016)

(U) INA 101(a)(48) (8 U.S.C. 1101(a)(48)); INA 212(a)(2)(A) (8 U.S.C. 1182(a)(2)(A)); INA 212(a)(2)(C) (8 U.S.C. 1182(a)(2)(C)); INA 212(d)(3)(A) (8 U.S.C. 182(d)(3)(A)); INA 212(h) (8 U.S.C. 1182(h)).

9 FAM 302.4-1(B) (U) Code of Federal of Regulations

(CT:VISA-206; 09-30-2016)

(U) 21 CFR 1308.11; 21 CFR 1308.12; 21 CFR 1308.13; 21 CFR 1308.14; 21 CFR 1308.14; 21 CFR 1308.15; 22 CFR 40.21.

9 FAM 302.4-1(C) (U) United States Code

(CT:VISA-206; 09-30-2016)

(U) 21 U.S.C. 802.

9 FAM 302.4-1(D) (U) Public Laws

(CT:VISA-206; 09-30-2016)

(U) Comprehensive Crime Control Act of 1984 (Public Law 98-473); Anti-Drug Abuse Act of 1986 (Public Law 99-570).

9 FAM 302.4-2 (U) Crimes Involving Controlled Substance Violations - INA 212(a)(2)(A)(i)(II)

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.

9 FAM 302.4-2(B) (U) Application

9 FAM 302.4-2(B)(1) (U) Controlled Substance List and its Effect on INA 212(a)(2)(A)(i)(II)

(CT:VISA-206; 09-30-2016)

(U) The Drug Enforcement, Education and Control Act (DEECA) of 1986, also known as the Anti-Drug Abuse Act of 1986, was signed into law on October 27, 1986. DEECA broadened the scope of INA 212(a)(2)(A)(i) to encompass a conviction for any violation relating to a controlled substance as defined in section 102 of that Act rather than certain violations relating to drugs or narcotics specifically enumerated in the predecessor section to INA 212(a)(2)(A)(i)(II) or specifically listed in the statute. For example, LSD, amphetamines, barbiturates, Seconal and Phencyclidene (PCP or Angel Dust), which are included in the list of controlled substances, are now incorporated into INA 212(a)(2)(A)(i)(II), whereas, previously, they had not been. Moreover, the distinction between use and possession has been eliminated by the Anti-Drug Abuse Act. Furthermore, removing the phrase guilty knowledge from the earlier version of INA 212(a)(2)(A)(i)(II) eliminates the Lennon distinction. (See 9 FAM 302.4-2(B)(3).) In addition, the law applies to both foreign and domestic drug convictions. For a list of controlled substances please see 21 CFR 1308.11 through 1308.15.

9 FAM 302.4-2(B)(2) (U) Controlled Substance Includes Marijuana

(CT:VISA-206; 09-30-2016)

(U) A controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), applies to marijuana as well as other controlled substances, which are defined in section 102 of the Controlled Substances Act and in 21 CFR 1308. For the purpose of these Notes, the term marijuana includes any of the various parts or products of the plant Cannabis Sativa L., such as bhang, ganga, charras, Indian hemp, dagga, hashish, and cannabis resin.

9 FAM 302.4-2(B)(3) (U) Defining Conviction

(CT:VISA-884; 07-02-2019)

a. (U) In General: A finding of ineligibility under INA 212(a)(2)(A)(i)(II) may be based on a conviction of a violation of, or an attempt to or conspiracy to violate, any law or regulation of a State, the United States, or a foreign country relating to a controlled substance. It may also be based on a legally-valid admission as defined in 9 FAM 302.3-2(B)(4), also see 9 FAM 302.4-(B)(4) below.

b. (U) Determining Existence of Conviction and Evidence:

(1) (U) General Definition: For a definition of the term conviction for purposes of INA 212(a)(2)(A)(i)(II) please see 9 FAM 302.3-2(B)(3).

(2) (U) Juvenile Delinquency: The Federal provisions relating to juvenile delinquency discussed in 9 FAM 302.3-2(B)(8) also apply to convictions for simple possession of controlled substances.

(3) (U) Federal First Offense Judicial Actions and State Equivalents:

(a) (U) The Comprehensive Crime Control Act of 1984, effective October 12, 1984, repealed the Federal First Offender provisions cited as 21 U.S.C. 844(b)(1). Prior to the repeal it had been held that judicial treatment under this section did not result in a conviction for immigration purposes. See Matter of Seda, 17 I. & N. Dec. 550 (BIA 1988); Matter of Werk, 6 I. & N. Dec. 234 (BIA 1977). In cases involving simple possession of a controlled substance, 21 U.S.C. 844(b)(1) permitted the court to withhold a judgment of guilt following a finding of guilt (thus drawing a distinction between a judgment and a finding of guilt by a guilty plea or trial). Therefore, a withholding of a judgment of guilt by a court under the Federal First Offender Provisions did not meet the standard required for establishing that an offender had been "convicted".

(b) (U) For cases prosecuted in 1984 or earlier, if prosecuted under 21 U.S.C. 844(b)(1) prior to its repeal of the Federal First Offender Provisions, they would retain the favorable treatment of this procedure and, likewise, retain the benefit for visa purposes.

(c) (U) Applying State Equivalents to 21 U.S.C. 844(b)(1):

(i) (U) In general, a state expungement or other relief for controlled substance convictions will not be effective for immigration purposes. An alien "convicted" under a state statute for a drug-related offense, however, may not be subject to INA 212(a)(2)(A)(i)(II) if it can be established that he or she would have been eligible for Federal first offender treatment had the prosecution occurred under Federal law.

(ii) (U) Relief can be extended to aliens prosecuted under state law who meet the following criteria:

(U) The alien is a first offender, i.e., he or she has not previously been convicted of violating any Federal or state law relating to controlled substances;

(U) The alien has pled to or been found guilty of the offense of simple possession of a controlled substance;

(U) The alien has not previously been accorded first offender treatment under any law; and

(U) The court has entered an order pursuant to a state rehabilitative statute under which the alien's criminal proceedings have been deferred pending successful completion of probation or the proceedings have been or will be dismissed after probation.

(d) Unavailable

(e) Unavailable

(4) (U) Judicial Recommendation Against Deportation (JARD): See 9 FAM 302.3-2(B)(3).

(5) (U) Action After Conviction:

(a) (U) Expungements: In general, expungements (domestic or foreign expungements) of convictions for purposes of INA 212(a)(2)(A)(i)(II) do not remove the existence of a conviction with respect to a finding of ineligibility under that section. The one exception to this generalization is noted below:

(i) (U) Prior to the passage of 101(a)(48) a full expungement of a conviction under U.S. law had been held to be equivalent in effect to a pardon granted under INA 237(a)(2)(A)(v) and served to eliminate the effect of the conviction for most immigration purposes. In light of the passage of 101(a)(48), the Board of Immigration Appeals in Matter of Roldan, 22 I & N. Dec. 512 (BIA 1999), determined that judicial expungements based on rehabilitative or ameliorative statutes (laws that allowed for expungement of a sentence by a court based on a showing that the defendant had been rehabilitated or was otherwise worthy of relief) would no longer be recognized as effective for eliminating the conviction for immigration purposes.

(ii) (U) The Ninth Circuit Court of Appeals, however, disagreed with this holding, and in a series of cases determined that state judicial expungements will be considered effective for eliminating the conviction if the alien would have been eligible for relief under the Federal First Offender Act or similar statute (see 9 FAM 302.4-2(B)(3) paragraph b(3) above Federal First Offense Judicial Actions and State Equivalents). Because of the complexity of this issue, cases that involve claims for state judicial expungement relief must be submitted as an AO to CA/VO/L/A.

(b) (U) Pardons: No pardon of whatever kind, executive or legislative, foreign or domestic, has any effect with respect to ineligibility under INA 212(a)(2)(A)(i)(II).

(c) (U) Suspending Sentence, Probation, or Commutation: A conviction exists for the purpose of INA 212(a)(2)(A)(i)(II) even if the sentence has been suspended, reduced, mitigated, or commuted, or the alien has been granted probation or parole or has otherwise been relieved in whole or in part of the penalty imposed. Post-conviction modifications to a person's criminal record, unless they are based on an underlying defect in the original legal proceedings, do not affect the definition of "conviction" under the INA for the purposes of applying visa ineligibilities.

(d) (U) Appeals: For the purposes of adjudicating a visa application, a visa applicant has been convicted of a criminal offense when the conviction is entered by a judge. It does not matter whether the applicant has filed a direct appeal of the conviction to a higher court, nor whether the appeal period has expired. You must refuse the visa accordingly. However, a conviction no longer exists if the judgment of conviction has been overturned on appeal to a higher court. If an applicant presents evidence that the conviction was overturned on appeal, review the document to make sure that all convictions that would result in ineligibility have been overturned. If you are uncertain whether all relevant charges were overturned on appeal, you may submit the case to your advisor in CA/VO/L/A for an advisory opinion. A prior visa refusal based on a conviction does not require denial of a later visa application, if the applicant establishes that the conviction has been overturned on appeal. However, if the first finding of inadmissibility was entered by the Department of Homeland Security, you should refer to the guidance found at 9 FAM 303.3-5(E).

(e) (U) Vacating Conviction: Various jurisdictions use different terms and procedures for the act of vacating (i.e., annulling or repealing) their own prior judgments. These are not appellate actions but actions of the original court. In determining whether a vacated conviction is still effective for immigration purposes, the consular officer should follow the guidance set forth in 9 FAM 302.3-2(B)(3) paragraph k ("Vacating a Conviction"). However, a determination of ineligibility under INA 212(a)(2)(C) might still be appropriate even if an applicant's drug convictions are not effective for the purpose of applying INA 212(a)(2)(A)(i)(II).

c. (U) Intent Relating to Ineligibility Resulting from Conviction:

(1) (U) Prior to its amendment under the DEECA of 1986, the former 212(a)(23) provided for a finding of ineligibility resulting from a conviction for the illicit possession of certain substances; the term illicit was at the time interpreted to mean guilty knowledge. Thus prior to 1986, in order for an alien to be found ineligible as the result of a conviction for the possession of drugs, the statute under which the alien was convicted had to have contained a requirement that the alien knew the drugs were in his or her possession.

(2) (U) The current version of INA 212(a)(2)(A)(i)(II) contains no word equivalent to illicit. Therefore, a conviction for possession or any other activity relating to a controlled substance will render an alien ineligible regardless of whether the statute under which the alien was convicted contains an element of guilty knowledge as a requirement for conviction and regardless of whether it is alleged that the alien did not knowingly participate in the activity.

9 FAM 302.4-2(B)(4) (U) Admissions

(CT:VISA-800; 05-17-2019)

(U) An alien may be found ineligible if he or she admits to committing the essential elements of a drug violation in lieu of a conviction under INA 212(a)(2)(A)(i)(II) (see 9 FAM 302.3-2(B)(4) for the standards that must be followed in obtaining a legally-valid admission in lieu of conviction).

9 FAM 302.4-2(B)(5) (U) Juvenile Drug Convictions

(CT:VISA-800; 05-17-2019)

a. (U) Aliens Under Age 18: An alien who is convicted of or who admits to having committed or who admits committing acts which constitute the essential elements of a minor drug offense(s) relating to simple possession or use of controlled substances, i.e., offenses other than those involving trafficking, importing/exporting, or manufacturing (18 U.S.C. 802(15)), shall not be considered ineligible for any visa under INA 212(a)(2)(A)(ii) based solely upon any such conviction or admission if the acts which are the subject of the conviction or admission occurred while the alien was under the age of eighteen. Specifically excluded from such treatment, however, are convictions or admissions relating to drug trafficking, importing/exporting, and manufacturing. It is worth noting that this does not apply to findings of ineligibility under INA 212(a)(2)(C)(i).

b. (U) Minors Involved in Trafficking, Importing/Exporting or Manufacturing of Controlled Substances: If there is reasonable belief on your part that, despite having been convicted of or having admitted to only a minor drug offense, the alien was directly involved in or aided or abetted trafficking, importing/exporting, or manufacturing of a controlled substance, you may still find the alien ineligible under INA 212(a)(2)(C). Likewise, after medical examination, the alien could be found ineligible under INA 212(a)(1) for substance abuse. (See 9 FAM 302.2-2(B).) You should ensure to address all relevant grounds of ineligibility that may apply to any visa application.

9 FAM 302.4-2(B)(6) Unavailable

(CT:VISA-800; 05-17-2019)

a. (U) The Department should be notified in advance of the travel plans of any alien to whom a visa has been issued in whose case it is believed that the Drug Enforcement Agency (DEA) may have an interest and the reasons why there may be interest in the case by that Agency. Cable tags should show:

CAPTIONS: VISAS; TAGS: CVIS, DEA and SUBJECT: OPERATIONS; Travel of (name of alien): possible interest Drug Enforcement Agency.

b. Unavailable

9 FAM 302.4-2(C) (U) Advisory Opinion

(CT:VISA-800; 05-17-2019)

(U) If an advisory opinion is required or needed in any visa case, and the case involves a criminal conviction, you must ensure that you gather all of the necessary information, consistent with the guidance in 9 FAM 302.3-2(C), before submitted an advisory opinion request.

9 FAM 302.4-2(D) (U) Waiver

9 FAM 302.4-2(D)(1) (U) Waivers for Immigrants

(CT:VISA-800; 05-17-2019)

a. (U) Principal Alien and Simple Possession of Marijuana: An immigrant visa applicant who is ineligible under INA 212(a)(2)(A)(i)(II) due to a single offense of simple possession of 30 grams or less of marijuana is eligible to apply for a waiver of ineligibility under INA 212(h) if it is established to the satisfaction of the Attorney General that:

(1) (U) The activities for which the alien is inadmissible occurred more than 15 years before the date of the aliens application for visa;

(2) (U) The aliens admission to the United States would not be contrary to the national welfare, safety, or security; and

(3) (U) The alien has been rehabilitated.

b. (U) Certain Relatives of U.S. Citizens or Lawful Permanent Residents (LPRs): An alien immigrant who is the spouse, parent, son, or daughter of a U.S. citizen or an alien lawfully admitted for permanent residence in the United States may apply for a waiver under INA 212(h) if:

(1) (U) The principal alien was found inadmissible under INA 212(a)(2)(A)(i)(II) insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana;

(2) (U) It is established to the Attorney Generals satisfaction that the exclusion of such alien would result in extreme hardship to the U.S. citizen or lawfully resident spouse, parent, son, or daughter; and

(3) (U) The Attorney General has consented to the aliens applying or reapplying for a visa to the United States.

c. (U) Evidence of Eligibility to Apply for a Waiver: When the court records or statutes leave doubt concerning an aliens eligibility for a waiver, you must ensure that complete records and copies of all relevant portions of the statute under which the conviction was obtained are scanned into the case, as well as any available commentary by authorities or prior judicial holdings.

d. (U) Procedures: See 9 FAM 302.3-2(D)(1) paragraph d.

9 FAM 302.4-2(D)(2) (U) Waivers for Nonimmigrants

(CT:VISA-206; 09-30-2016)

(U) An INA 212(d)(3)(A) waiver is available for nonimmigrant visa applicants found inadmissible under INA 212(a)(2)(A)(i)(II). You should consider the following factors, among others, when deciding whether to recommend a waiver:

(1) (U) The recency and seriousness of the activity or condition causing the alien's inadmissibility;

(2) (U) The reasons for the proposed travel to the United States;

(3) (U) The positive or negative effect, if any, of the planned travel on U.S. public interests.

9 FAM 302.4-2(E) Unavailable

9 FAM 302.4-2(E)(1) Unavailable

(CT:VISA-206; 09-30-2016)

Unavailable

9 FAM 302.4-2(E)(2) Unavailable

(CT:VISA-206; 09-30-2016)

Unavailable

9 FAM 302.4-3 (U) Controlled Substance Trafficking - INA 212(a)(2)(C)

9 FAM 302.4-3(A) (U) Grounds

(CT:VISA-800; 05-17-2019)

(U) INA 212(a)(2)(C) renders ineligible:

(1) (U) Any alien who the consular officer or DHS knows or has reason to believe is or has been an illicit trafficker in any controlled substance or in any listed chemicals as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others, in the illicit trafficking in any controlled or listed substance or chemicals, or endeavored to do so. Such a person is ineligible under INA 212(a)(2)(C)(i); or

(2) (U) Any alien who the consular officer has reason to believe is the spouse, son, or daughter of an alien inadmissible under clause (i), and has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity. Such a person is ineligible under INA 212(a)(2)(C)(ii).

9 FAM 302.4-3(B) (U) Application

9 FAM 302.4-3(B)(1) (U) Examples of Trafficking

(CT:VISA-800; 05-17-2019)

a. (U) The first clause of INA 212(a)(2)(C) has been found to apply in a broad range of cases, including a single purchase of drugs with the intent to resell them, but without the resale actually having occurred. It has also been held that an alien is a trafficker even though the alien receives no personal gain or profit from the transaction if the alien acts knowingly and consciously as a conduit between supplier and customer. The Attorney General has held that a single act of conscious participation as an 'illicit trafficker' is within the meaning of INA 212(a)(2)(C).

b. (U) It must be noted that, unlike INA 212(a)(2)(D), the language in the first clause of INA 212(a)(2)(C) makes no mention of engaging in any proscribed activities. Therefore, the term illicit trafficker does not require that one has been engaged continuously in illicit trafficking. Rather, it denotes a person whose involvement with narcotic drugs includes trafficking, whether primary or incidental; past or present. The standard of proof for INA 212(a)(2)(C) is reason to believe. The "reason to believe" standard is substantially lower than what would be required for a conviction in a court of law. For example, a consular officer may find that there is sufficient reason to believe that an applicant is a narcotics trafficker even though criminal charges have been dismissed, or even if an alien has never been arrested. See 9 FAM 302.4-3(B)(3) below.

c. (U) If an alien has been convicted of a narcotics-related crime, it is possible that he or she may be ineligible under three or more separate ineligibilities: INA 212(a)(2)(A)(i)(I), INA 212(a)(2)(A)(i)(II), and/or INA 212(a)(2)(C)(i). All related INA 212(a) ineligibilities should be assessed and entered separately, if applicable. You may refer the applicant to the panel physician if an INA 212(a)(1)(A) ineligibility is suspected.

9 FAM 302.4-3(B)(2) (U) Assistor, Abettor, Conspirator or Colluder

(CT:VISA-800; 05-17-2019)

a. (U) In General: Aliens who are or have been involved in activities supporting the trafficking in controlled substances are also ineligible. These activities include, but are not limited to:

(1) (U) Knowingly laundering money for traffickers either directly or by claiming ownership or direction of, or operating for traffickers a front business financed at least in part by drug proceeds;

(2) (U) Knowingly facilitating trafficking by providing airstrips for the movement of drugs or secure premises for drug transactions; or

(3) (U) Knowingly accepting the proceeds of trafficking in return for direct assistance in trafficking activities, especially acceptance of such proceeds by public officials such as police, customs inspectors, immigration officials or judges.

b. (U) Foreign Policy Implication or Public Interest Cases: Other than cases with significant foreign policy implication or significant public interest, findings of ineligibility in the cases listed above do not require an advisory opinion from the Department before refusing the visa under that ground of ineligibility. However, in those cases where a foreign policy implication or public interest you must submit a request for an advisory opinion to your advisory in CA/VO/L). For information on submitting an advisory opinion see 9 FAM 302.4-3(C) below.

9 FAM 302.4-3(B)(3) (U) Reason to Believe

(CT:VISA-850; 06-04-2019)

a. (U) Under INA 212(a)(2)(C), if you have reason to believe that the alien is or has been engaged in trafficking, or has assisted another in trafficking as described in 9 FAM 302.4-3(B)(2), the standard of proof is met and you should make a finding of ineligibility.

b. (U) Reason to believe might be established by a conviction, an admission, a long record of arrests with an unexplained failure to prosecute by the local government, or several reliable and corroborative reports. The essence of the standard is that the consular officer must have more than a mere suspicion; there must exist a probability, supported by evidence, that the alien is or has been engaged in trafficking. You are required to assess independently any evidence relating to a finding of ineligibility.

c. Unavailable

9 FAM 302.4-3(B)(4) (U) Spouse, Son, or Daughter Benefiting from Trafficking

(CT:VISA-800; 05-17-2019)

a. (U) INA 212(a)(2)(C)(ii) states that the spouse, son, or daughter of a person who is ineligible under INA 212(a)(2)(C)(i) is also ineligible if he or she, within the past five years, obtained any financial or other benefit as a result of his or her spouse's (or parent's) narcotics trafficking and knew or reasonably should have known that the benefit was obtained as a result of illicit activity.

b. (U) Ineligibility under INA 212(a)(2)(C)(ii) does not require that the primary alien must have applied for a visa or have been formally refused under INA 212(a)(2)(C)(i). It requires an assessment that if the alien spouse or parent were to apply for a visa he or she would be found ineligible under INA 212(a)(2)(C)(i).

c. (U) A son or daughter remains the son or daughter of an alien found ineligible under INA 212(a)(2)(C)(ii) even after the death of the ineligible alien parent and even after the son or daughter turns 21. However, as described above, the financial or other benefit must have been obtained with the last five years.

d. (U) INA 212(a)(2)(C)(ii) only applies to spouses who are currently married to aliens found ineligible under INA 212(a)(2)(C)(i). It does not include those whose marriage has ended due to divorce or the death of the inadmissible alien. If you determine that a divorce has been obtained for the purposes of avoiding ineligibility under INA 212(a)(2)(C), and the divorce is less than five years old, you should submit a request for an AO to your CA/VO/L/A liaison.

9 FAM 302.4-3(C) (U) Advisory Opinion

(CT:VISA-800; 05-17-2019)

a. (U) Required: When a case implicates foreign policy concerns or has a potential public interest, it must be submitted for an AO. See 9 FAM 302.4-3(B)(2) paragraph b for more information.

b. Unavailable

c. Unavailable

d. Unavailable

e. Unavailable

9 FAM 302.4-3(D) (U) Waiver

9 FAM 302.4-3(D)(1) (U) Waivers for Immigrants

(CT:VISA-800; 05-17-2019)

(U) There is no immigrant visa waiver under INA 212(h), or any other ground in the INA, for persons ineligible under 212(a)(2)(C).

9 FAM 302.4-3(D)(2) (U) Waivers for Nonimmigrants

(CT:VISA-800; 05-17-2019)

(U) An INA 212(d)(3)(A) waiver is available for nonimmigrant visa applicants found ineligible under INA 212(a)(2)(C) if the consular officer or the Secretary of State chooses to recommend one. You should consider the following factors, among others, when deciding whether to recommend a waiver:

(1) (U) The recency and seriousness of the activity or condition causing the alien's inadmissibility;

(2) (U) The reasons for the proposed travel to the United States;

(3) (U) The positive or negative effect, if any, of the planned travel on U.S. public interests.

9 FAM 302.4-3(E) Unavailable

9 FAM 302.4-3(E)(1) Unavailable

(CT:VISA-884; 07-02-2019)

a. Unavailable b. Unavailable

9 FAM 302.4-3(E)(2) Unavailable

(CT:VISA-884; 07-02-2019)

a. Unavailable

b. Unavailable

UNCLASSIFIED (U)