New Consular Procedures Relating to Drug & Alcohol Use

By Attorneys Robert L. Reeves & Jeff L. Khurgel

A recent U.S. Department of State cable expressed changes to the Foreign Affairs Manual (FAM), which provides guidance to U.S. Consular Officers issuing immigrant and non-immigrant visas abroad. The new changes, effective June 1, 2010, relate to how the physical and mental disorders of visa applicants affect their visa eligibility.

A portion of the FAM updates relate to alcohol abuse problems. Alcohol-related arrests or convictions may cause an applicant to be inadmissible to the U.S. under Section 212(a)(1)(A)(iii) of the Immigration and Nationality Act (INA). If, during the Embassy interview, it becomes known to the Consular Officer that an applicant has a history of alcohol-related arrests or convictions (such as driving under the influence or domestic violence), the Consular Officer must refer the visa applicant to a panel physician for an evaluation. The circumstances under which the Officer must refer the applicant for a substance abuse evaluation have been changed by the new guidance. Whereas in the past the referral to a panel physician was to be made if a single alcohol-related arrest or conviction occurred within the last three years, the new changes require a referral if the arrest or conviction was within the last five years. Further, under previous policy, a referral was required where two or more alcohol-related arrests or convictions occurred at any time in the past. However, the recent changes only require a referral if the two or more arrests or convictions were within the last ten years.

It should be noted that although the new changes are “effective immediately”, Department of State representatives at a recent national conference of immigration attorneys continued to refer to the panel physician referral as only required in a situation where there has been one alcohol-related arrest or  conviction within the previous three years, or two or more convictions at any time. What is clear is that past alcohol-related history is crucially relevant to an aspiring immigrant or visitor to the U.S., and needs to be carefully evaluated by experienced attorney. Under certain circumstances, a waiver of the substance abuse ground of inadmissibility may be available. Indeed, in other cases, after a thorough evaluation it may be determined that no waiver should be required.

In addition to alcohol-related problems, past drug use is also an important part of the visa screening process. Understandably, Consular Officers do not want to issue an entry pass to the U.S. for people who are habitual drug users. Part of the process to determine whether a visa applicant has past drug use is the medical clearance. The clearance is obtained after successfully undergoing a medical examination by an approved panel physician and receiving vaccinations, if required.

As previously reported in this newsletter, the practice of the panel physicians at St. Luke’s Hospital in Manila, is to question visa applicants during the medical evaluation process, and then to use the answers to cause the applicant to be barred from the U.S. Specifically, answers relating to past drug use have been gained by the physicians in confidence, then relayed to Embassy officers, causing a bar to admissibility to unsuspecting visa applicants. Thus, instead of preventing only habitual drug offenders from entry to the U.S., people who have a single instance of drug experimentation are also being barred.

Current practice is that someone who has been petitioned for an immigrant visa, and is undergoing the final Embassy processing steps, can be banned for life for admitting that he or she had used drugs in the past. The ban applies even if the drug use was one isolated incident or occurred many years ago. The lifetime ban is also applicable even if the applicant was never charged or convicted of any drug crime and if a drug test turned out negative. Thus, some visa applicants that have been waiting years for their priority date to become current and have been eagerly fulfilling all necessary visa processing steps, may be in for an unwelcome surprise when undergoing what should be a routine medical evaluation.

However, two recent decisions of the Administrative Appeals Office (AAO) have found that such practice on the part of the physicians is unlawful. The decisions build on a strong body of Board of Immigration Appeals (BIA) cases which illustrate the requirements for when someone who has not been convicted of drug use can be banned from the U.S. for merely admitting drug use. The cases of Matter of K, Matter of J and Matter of P indicate that in order for a visa applicant’s admission of past drug use to be used against him, the admission must have been validly obtained. Validly obtained means that the applicant must have been provided with the definition and essential elements of the crime prior to his admission; the applicant must admit the conduct constituting the essential elements of the crime and that he committed the offense; and the applicant’s admission must be voluntary.

In the recent AAO cases, both of the applicants had been petitioned by immediate family members, and underwent normal visa processing. Neither applicant had been convicted of any drug crime, and both honestly admitted to past drug use during medical examinations at St. Luke’s Hospital. When Manila’s U.S. Immigrant Visa Section attempted to ban the applicants from entering the U.S. due to the admissions, appeals were filed with the AAO. In turn, the AAO agreed with BIA precedent by finding that the admissions obtained in these cases were invalid as the applicants had not been provided with an adequate definition of the crimes, including all essential elements, in plain English. The AAO noted that following these procedures in obtaining drug admissions serves the interests of fairness and would ensure that no trickery or entrapment was in effect. As such, in a striking victory for the visa applicants, it was ruled the admissions obtained by the St. Luke’s physicians could not be used against them in their visa processing.
 
The requirements of notice and explanation of essential elements have been incorporated into Volume 9 of the FAM. Due Process in this area is evolving and ever-changing, but the recent momentum is cause for optimism. Reeves & Associates will continue to challenge the Manila Embassy’s use of the medical exam to extract “admissions” from unwitting visa applicants. The purpose of the medical exam as defined by the Centers for Disease Control is to identify medical conditions, including current use or addiction to drugs, not to identify youthful experimentation for the purpose of developing evidence to bar visa applicants for life.
 
All current and future immigrant visa applicants undergoing overseas processing would benefit greatly from the assistance of a qualified immigration attorney. The facts of each case need to be carefully examined so as to determine the proper course of action to ensure successful issuance of the visa.