Advisory Opinion Adjudicated (finally)

[Traviesa 0]

(E-mail from our attorney)

I have just received the decisions on your Advisory Opinion requests and another one. On both of the decisions it stated that the consular officer had to follow the physician's findings no matter how rediculous (ok, they didn't say that last clause) and they were not going to overturn the consulate's decision. But in your decision, they added something interesting that wasn't in the other decision. They said I could "appeal" to the CDC "through CIS" using form I-601. So, now I'm thoroughly confused for several reasons.

1. 8 CFR 212.7(a)(1)(i) says that we would have to file the I-601 at the consulate, not directly with CIS

2. I told the AO office that the consulate wouldn't let us file the I-601 and they said both that they won't overturn the consulate's decision and that we should should file the I-601

3. The I-601 is not a form for appeals, its a form for waivers. You CANNOT use a form I-601 for an appeal of any kind. But the AO office specifically used the legal term "appeal"

4. Inadmissibility for drug addiction is described in INA 212(a)(1)(A)(iv). All waivers for medical grounds under INA 212(a)(1)(A) are found in INA 212(g), which describes waivers for INA 212(a)(1)(A)(i), (ii), and (iii), but NOT (iv). Therefore, there is no waiver for drug addiction and form I-601 will not solve the problem.

I'm going to contact the AO office for clarification.

So there we have it! At last, it's over!!

[iceyspots 0]

I hope this gets worked out as quickly as possible.

[CarolineM 0]

Melissa. I'm way confused...but it sounds promsing, right??

Either way I hope it works out And finality is ALWAYS a good thing!! Better then jsut not knowing!

[anya-D 8]

I wish you sort things out soon.. u've been waiting for so long. Good luck

[Traviesa 0]

Once we find out what they mean by appeal, we can decide what to do next. For now, I'll just sit tight and wait for our NOA-1 from the I-130. The way I see it, we're no better off, but also no worse off, than we were yesterday, so I'm not too terribly upset that it was denied. At least maybe it has brought to someone's attention what all goes on and some of the problem areas. And now I can say with confidence that we made the right decision to go forward with the IR-1. We'll be waiting a while-as of right now, estimated time for Javier to receive the Visa is March, 2009.

[heishe 2]

Sorry, I'm not familiar with your case. What's the story?

[broma25 2]

I dont know if I missed some of your posts Melissa, but didnt Javier try the drug just once?? Does that make someone an addict (it does not in my opinion).

If this is the case, can he ever have a clean slate and gain lawful entry to the US?

Best wishes to you both

[Traviesa 0]

Sorry, I'm not familiar with your case. What's the story?

At Javier's medical exam, he told the physician that he had put a finger dusting of cocaine in his mouth 3 months prior, as a means of determining what substance was being carried onto his home property by some men in a truck. Based on that, they determined that he was a drug addict, and ineligible to receive a visa until 3 years after the last drug use.

[ceriserose 1]

Well at least you know one way or the other. As you said, you're no better off but no worse off.

I hope you can find out the last answers you need.

[Garfield fan 0]

Hope everything gets sorted out for you... all the best !

[heishe 2]

Sorry, I'm not familiar with your case. What's the story?

At Javier's medical exam, he told the physician that he had put a finger dusting of cocaine in his mouth 3 months prior, as a means of determining what substance was being carried onto his home property by some men in a truck. Based on that, they determined that he was a drug addict, and ineligible to receive a visa until 3 years after the last drug use.

Oh god, that's horrible!

Do people regularly get denied for having tried drugs maybe just once or twice in the past? Is it advisable to lie about this at the interview?

[Traviesa 0]

The law is...(as it appears in the Foreign Affairs Manual)...a finding of drug addiction is to be found based on abuse of a certain drug within the past 3 years. The law makes an exception for an experimental use of a drug and gives as an example, a single use of marijuana. For something like that, you are not supposed to be found medically ineligible. The law doesn't outright state, but indicates, that drug addiction is reserved for an individual who demonstrates actual usage and abuse, usually a pattern of usage (actual usage, like smoking, snorting, injecting, what have you-I'm not real familiar with the various forms of drug use).

I should also add that it is not typical to be denied for one instance of drug usage (even less typical when you didn't actually use the drug, as in our case), although the instance of such occurence is higher in Mexico; so much so that the American Immigration Lawyer Association filed an Advisory Notice with the Department of State to let them know the mistakes (I call them mistakes, but some of the things they're doing down there is outright abuse of power) being done by these independent clinical physicians regarding drug addict judgements.

[type2negative 0]

The law is...(as it appears in the Foreign Affairs Manual)...a finding of drug addiction is to be found based on abuse of a certain drug within the past 3 years. The law makes an exception for an experimental use of a drug and gives as an example, a single use of marijuana. For something like that, you are not supposed to be found medically ineligible. The law doesn't outright state, but indicates, that drug addiction is reserved for an individual who demonstrates actual usage and abuse, usually a pattern of usage (actual usage, like smoking, snorting, injecting, what have you-I'm not real familiar with the various forms of drug use).

So why he is denied, since he is not an addict.

And why did he tell this to the doctor.

Did the drug test come clean???.

I mean, sorry, but somethuing doesnt sound right.

Oh god, that's horrible!

Do people regularly get denied for having tried drugs maybe just once or twice in the past? Is it advisable to lie about this at the interview?

You are not supposed to advocate illegal activities, like lieing to IO here. Reported and for cause.

[Traviesa 0]

The law is...(as it appears in the Foreign Affairs Manual)...a finding of drug addiction is to be found based on abuse of a certain drug within the past 3 years. The law makes an exception for an experimental use of a drug and gives as an example, a single use of marijuana. For something like that, you are not supposed to be found medically ineligible. The law doesn't outright state, but indicates, that drug addiction is reserved for an individual who demonstrates actual usage and abuse, usually a pattern of usage (actual usage, like smoking, snorting, injecting, what have you-I'm not real familiar with the various forms of drug use).

So why he is denied, since he is not an addict.

And why did he tell this to the doctor.

Did the drug test come clean???.

I mean, sorry, but somethuing doesnt sound right.

You, I'm not dealing with. And I'm also not going to provide yet another full explanation of the events as they occurred. To answer your questions, and that's all I'm doing, he was denied because the physician passed a judgment wrongfully, he told this to the doctor because he was intimidated by the signs that say lying is a federal offense as well as the doctor lying to him about what all shows up in a drug test, the drug test was clean. Almost everyone already knows the whole situation, and I'm going to leave it at that.

You are not supposed to advocate illegal activities, like lieing to IO here. Reported and for cause.

Asking a question is not advocating you #######. Reported for being an #######.

[Ban Hammer 12,900]

Oh god, that's horrible!

Do people regularly get denied for having tried drugs maybe just once or twice in the past? Is it advisable to lie about this at the interview?

You are not supposed to advocate illegal activities, like lieing to IO here. Reported and for cause.

had someone answered that question i'd say you might have a point in reporting such. as it was not answered but merely asked (and possible it was a rhetorical question) your reporting of such is a "the sky is falling" routine.