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New Medical Form Means More Doom

by Jonathan D. Montag

In the earlier days of my practice of immigration law, everything seemed possible when it came to helping foreigners to stay in the United States. Waivers were readily available for many grounds of inadmissibility, cases could be reopened based on changed circumstances, appeals could be taken to fight injustices, and laws often changed, either by legislation, regulation, or judicial rulings, to make things easier, not harder, for foreigners. The rules of the game have gotten steadily worse over the years and more and more people just simply cannot be helped.

USCIS has dealt another serious blow to people wanting to come to the United States. A medical exam is one of the requirements to obtain permanent residence in the United States. USCIS announced that a new medical form comes into force on May 1, 2008. The form, Form I-693, now requires a doctor, at Part II, Question 4, to explicitly ask a foreigner seeking permanent residence whether he or she uses or ever has used a controlled substance.

Ask a person, from President Bush to the average Joe, if he ever has used drugs and the odds of getting an affirmative response are very high. The Centers for Disease Control reports that 8.1 percent of Americans over age 12 have used an illicit drug in the last month. For persons between the ages of 18 and 25, the percentage is a remarkable 20.2 percent. White House statistics indicate that approximately 55 percent of Americans between the ages of 18 and 34 have used illegal drugs at some time in their lives. There is no reason to suspect that global drug use is much different than U.S. drug use.

Under U.S. immigration law, using drugs is a grounds of inadmissibility. The Immigration and Nationality Act at Section 212(a)(2)(A)(i)(II) provides that an alien is "inadmissible" if the alien (1) was "convicted of," or (2) "admits having committed," or (3) "admits committing acts which constitute the essential elements of …a violation of …any law or regulation of …a foreign country relating to a controlled substance …." There is no time limitation. Admission of drug use fifty years ago creates inadmissibility today.

Hope against all hope that this does not mean what it says, but it does. In a Ninth Circuit Court of Appeals case, Pazcoguin v. Radcliffe, the court, often referred to as being a liberal one, held that an admission of marijuana use to a doctor seventeen years earlier was enough of a reason to permanently bar the foreigner from admission to the United States. As doctors begin to use the new form, foreigners will begin to put nooses around their own necks. In a famous scene from the movie Anatomy of a Murder, Jimmy Stewart, a criminal defense attorney, goes to the jail to interview a murder suspect, Ben Gazarra, for the first time. Stewart does all the talking. He explains to Gazarra the elements of the crime for which he is in jail and the available defenses, including insanity. He tells Gazarra to think about it and leaves to talk again another day. When he comes back, Gazarra is able to articulate an insanity defense. Was this ethical? Should a doctor tell his or her patient at the beginning of the exam that there will be a series of questions and answering affirmatively to them will likely result in the denial of a visa?

To ask a foreign permanent resident applicant – someone who has waited fifteen years to apply through their parents’ petition, a foreigner newly marrried to a United States citizen, a distinguished scientist or businessman – if he or she has ever used drugs and the statistical likelihood, if the patient is completely candid, could result in a 55 percent rejection rate. This new medical form may not do much in dealing with the problem of illegal immigration, but it will have a huge impact on legal immigration.

About The Author

Jonathan D. Montag practices immigration law at the Law Offices of Jonathan D. Montag in San Diego, California. He received his J.D. from the University of San Diego and his B.A. the University of Pennsylvania. He is an Immigration and Nationality Law Specialist certified by the State Bar of California Board of Legal Specialization. He is currently a member of the State Bar Immigration and Nationality Law Advisory Committee. Mr. Montag is on the editorial board of Immigration Today, the American Immigration Lawyers Association's (AILA) monthly. He is a former San Diego American Immigration Lawyers Association Chapter Chair. Mr. Montag has lectured at conferences hosted by AILA and the State Bar of California in matters relating to the immigration law and has published widely in the field. Mr. Montag has argued succesfully before the Federal District Court for the Southern District of California and Ninth Circuit Court of Appeals. He has also testified as an expert witness on immigration law in the federal district court and the State Bar court. Mr. Montag was named an Attorney of the Year by California Lawyer Magazine for extraordinary achievement in immigration law in 2005 and is designated a San Diego Super Lawyer by Super Lawyers Magazine.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.