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Marijuana conviction - Inadmissable or not?

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Here is situation: Husband is permanent resident of US (4 years). 9 months ago he was convicted of a first time simple marijuana possession (less than 30 grams), no jail time, 3 years unsupervised probation. We live in 9th Circuit District. He was told by attorney he could travel back to his home country, which he did. He is now coming back and I suspect the attorney was mistaken and he is going to have trouble upon arrival at the airport.

My confusion: Is he inadmissable or not, I cant figure it out and i dont have $2000 to get another lawyers opinon. If he is inadmissable, can he apply for waiver on the spot (he has not been in the country more than 7 years)? OR IS he admissable because his convicted crime was punishable by less than 1 year, etc.: See Exeception clause below and if you know the answer PLEASE HELP. I am worried, as you can imagine.

INA § 212(a)(2)(A)(i)(II)

(II) a violation of relating to a controlled substance is inadmissible.

(ii) Exception Clause

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

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Filed: Citizen (apr) Country: Canada
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Laurel Scott (scottimmigration.net) offers free immigration chats on Wednesday, perhaps you could go there for your answer. You're dealing with tricky immigration law right now so I'm not sure if this site can give you what you need.

Good luck.


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Laurel Scott (scottimmigration.net) offers free immigration chats on Wednesday, perhaps you could go there for your answer. You're dealing with tricky immigration law right now so I'm not sure if this site can give you what you need.

Good luck.

Her husband is PR so no issues. Issue would be if he was applying now for immigrant visa. You may want to wait a while before applying for citizenship.


ROC 2009
Naturalization 2010

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Filed: K-1 Visa Country: Vietnam
Timeline

Her husband is PR so no issues. Issue would be if he was applying now for immigrant visa. You may want to wait a while before applying for citizenship.

Usually, this is true. A returning permanent resident is generally not considered to be "seeking admission", so the normal inadmissibilities would not apply. However, INA section 101(a)(13)(C ) spells out some exceptions. Among the exceptions are abandoning residency, absence of more than 180 days, illegal activity outside the US, leaving while removal proceedings are in process, and (unfortunately) an offense as described in 212(a)(2). A controlled substance offense would fit this description. He may need a one-time waiver of this offense in order to be readmitted.


12/15/2009 - K1 Visa Interview - APPROVED!

12/29/2009 - Married in Oakland, CA!

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Filed: Other Timeline

Among the exceptions are abandoning residency, absence of more than 180 days, illegal activity outside the US, leaving while removal proceedings are in process, and (unfortunately) an offense as described in 212(a)(2). A controlled substance offense would fit this description. He may need a one-time waiver of this offense in order to be readmitted.

Jim,

when the CBP officer scans the LPR's GC at the POA, will the conviction come up on his screen? If not, how would he know?


There is no room in this country for hyphenated Americanism. When I refer to hyphenated Americans, I do not refer to naturalized Americans. Some of the very best Americans I have ever known were naturalized Americans, Americans born abroad. But a hyphenated American is not an American at all . . . . The one absolutely certain way of bringing this nation to ruin, of preventing all possibility of its continuing to be a nation at all, would be to permit it to become a tangle of squabbling nationalities, an intricate knot of German-Americans, Irish-Americans, English-Americans, French-Americans, Scandinavian-Americans or Italian-Americans, each preserving its separate nationality, each at heart feeling more sympathy with Europeans of that nationality, than with the other citizens of the American Republic . . . . There is no such thing as a hyphenated American who is a good American. The only man who is a good American is the man who is an American and nothing else.

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I am pretty sure convictions do show up on the screens. That is what worries me.

JIM,

The INA 212(a) is what I was referring to. There seems to be an exception clause (for which my husband falls under). So that is why I am not sure if he is safe or does need that waiver. Can we apply for waiver on the spot if he needs it?

INA § 212(a)(2)(A)(i)(II)

(II) a violation of relating to a controlled substance is inadmissible.

(ii) Exception Clause

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

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Filed: Other Timeline

I doubt that convictions are automatically submitted to the immigration system and even more I doubt that those things show up at the CBP screen.

An outstanding warrant, yes, failure to appear in court to an immigration hearing, yes, in short all issues tightly connected to immigration, but not a minor conviction.

If, and only if USCIS would know about it, which I doubt, as I believe they only learn about it when inquiring to the database (i.e., when a citizenship application is submitted), and they feel the GC holder has violated his trust as an upstanding resident of moral character, they would have contacted him already.

Again, I don't know for sure, but given how little communication exists between immigration and other law enforcement agencies, I have my doubts that they even know about it. That's why I suggest to let the citizenship issue rest for several years until all of the pot stuff is water under the bridge. Why stepping onto the sleeping lion's tail?

Edited by Just Bob

There is no room in this country for hyphenated Americanism. When I refer to hyphenated Americans, I do not refer to naturalized Americans. Some of the very best Americans I have ever known were naturalized Americans, Americans born abroad. But a hyphenated American is not an American at all . . . . The one absolutely certain way of bringing this nation to ruin, of preventing all possibility of its continuing to be a nation at all, would be to permit it to become a tangle of squabbling nationalities, an intricate knot of German-Americans, Irish-Americans, English-Americans, French-Americans, Scandinavian-Americans or Italian-Americans, each preserving its separate nationality, each at heart feeling more sympathy with Europeans of that nationality, than with the other citizens of the American Republic . . . . There is no such thing as a hyphenated American who is a good American. The only man who is a good American is the man who is an American and nothing else.

President Teddy Roosevelt on Columbus Day 1915

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Filed: K-1 Visa Country: Vietnam
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I am pretty sure convictions do show up on the screens. That is what worries me.

JIM,

The INA 212(a) is what I was referring to. There seems to be an exception clause (for which my husband falls under). So that is why I am not sure if he is safe or does need that waiver. Can we apply for waiver on the spot if he needs it?

INA § 212(a)(2)(A)(i)(II)

(II) a violation of relating to a controlled substance is inadmissible.

(ii) Exception Clause

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

That "exception clause" is for (i)(I). His violation is paragraph (i)(II). Take another look at the text of the act.

All is not lost, however. Paragraph (F ) says that violations of 212(a)(2) are waiver authorized, as described in subsection (h). INA 212(h) reads:

(h)The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana if-

(1) (A) in the case of any immigrant it is established to the satisfaction of the Attorney General that-

(i) the alien is inadmissible only under subparagraph (D)(i) or (D)(ii) of such subsection or the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien's application for a visa, admission, or adjustment of status.

(ii) the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States, and

(iii) the alien has been rehabilitated; or

(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien; or 25c

I don't know enough about cases of this sort to know how the process would be handled. My guess is that CBP would find him inadmissible, seize his green card, and deny him entry. He'd have to go to a US consulate in a foreign country and apply for a Special Immigrant Visa, which would be denied because of the inadmissibility. At that time, he could apply for the waiver.


12/15/2009 - K1 Visa Interview - APPROVED!

12/29/2009 - Married in Oakland, CA!

08/18/2010 - AOS Interview - APPROVED!

05/01/2013 - Removal of Conditions - APPROVED!

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Border patrol has access to EVERYTHING, even my hubbies arrests showed up (even though the charges were ultimately dropped).


Invictus..

Out of the night that covers me,

Black as the Pit from pole to pole,

I thank whatever gods may be

For my unconquerable soul.

In the fell clutch of circumstance

I have not winced nor cried aloud.

Under the bludgeonings of chance

My head is bloody, but unbowed.

Beyond this place of wrath and tears

Looms but the Horror of the shade,

And yet the menace of the years

Finds, and shall find, me unafraid.

It matters not how strait the gate,

How charged with punishments the scroll.

I am the master of my fate:

I am the captain of my soul.

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Filed: Citizen (apr) Country: Australia
Timeline

Thanks everyone for your input. I consulted with an immigration attorney who specializes in the kind of stuff and got my answers.

Can you post your answers so as to help another if they are in your situation?

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Filed: Country: China
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Yep Bob, when I the US citizen, came back from Europe everything was showing in the computer. I had to go through additional processing before being allowed to enter my own country.

from your comments we assume that you are a naturalised USC. if so your citizenship is conditional. it can be revoked for a wide variety of reasons.


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