By Attorney Robert L. Reeves
I am pleased to announce a significant breakthrough for those who have been denied immigrant visas at the U.S. Embassy in Manila for admitting youthful experimentation with drugs. About 9 years ago, Reeves & Associates (R&A) became aware of a practice by the American Embassy in Manila which evolved from a 9th Circuit Court of Appeals decision and a misunderstanding of the exclusion law in Section 212(a) (2) of the Immigration & Nationality Act (INA). The Embassy’s interpretation of this law and the holding in Pazcoquin vs. Radcliffe (2002) resulted in a lifetime ban for visa applicants for simply admitting to experimentation with drugs, many times even as a minor.
Our firm worked tirelessly to bring this issue to the forefront. In 2004, I traveled to Manila and met with the then Immigrant visa chief with regard to the lifetime ban for one time experimental use with drugs. Although the meeting was cordial and helped to understand the visa units perspective based on the Pazcoquin case, it did not result in any change of their policy.
Immigrant procedures require that prospective immigrants obtain a medical examination by an Embassy-approved panel physician. During the course of this examination, a physician would ask questions of intending immigrants regarding any drug use, past or present, and record the immigrant’s responses. Many applicants admit to past drug use, such as experimentation in their youthful years with marijuana, understandably believing that there should be no immigration problem because they may have never been arrested, charged, or convicted of any crime and they were privately speaking with a doctor.
Immigration law has long contained a procedure for excluding aliens for conviction of any drug crimes, and this bar to coming to the U.S. is usually permanent. But immigrants seeking visas from the Embassy in Manila have found that the law has been interpreted by visa officers to allow this same exclusion based only on the immigrant admitting past use, even where they were never arrested or charged with any crime.
In effect, this practice would bar a prospective immigrant from coming to the U.S. for something as simple as smoking marijuana once in their life. According to the 2009 National Survey on Drug Use and Health (NSDUH), an estimated 104 million Americans aged 12 or older have tried marijuana at least once in their lifetimes, representing 41.5% of the U.S. population. The National Institute on Drug Abuse (NIDA) also found that 32.8 % of 12th graders used marijuana during the prior year. Anecdotally, it is said that several recent U.S. Presidents have admitted to experimenting with marijuana or other drugs. As such, the Embassy’s policy was holding immigrants to an unrealistic standard.
R&A’s efforts over the past 9 years to challenge this practice have included two hard-fought Federal court cases, numerous legal briefs to the Embassy in Manila, and requesting legal advisory opinions from the Visa Office in Washington D.C. Finally, there has been a breakthrough. On the heels of two recent decisions of the Administrative Appeals Office (AAO) which found this practice of the Visa Unit improper, R&A has been corresponding with officials at the U.S. Embassy.
In a series of correspondence with the Embassy wherein R&A presented a well researched statement of position, the visa unit agreed to review our arguments regarding their application of the exclusion law as they apply to an admission to past drug use.
Accordingly, after the officials within in the U.S. Embassy had an opportunity to review R&A’s statement of position which included relevant case and statutory law, the visa unit agreed with our position. As a result, R&A’s clients are now being permitted to reapply and present their cases anew. This openness and reasonable approach of the visa unit at the U.S. Embassy in Manila is a welcome development for the family members left behind in the Philippines. We found that all correspondence from Embassy officials was courteous, professional and reasonable.
I caution visa applicants undergoing visa processing that they would be well advised to seek assistance of a qualified immigration attorney.
