Crime, criminal behavior and convictions can be grounds for denying admissibility into the United States. However, immigration laws contain an exception where inadmissibility can be waived if "... inadmissibility relates to a single offense of simple possession of 30 grams or less of marijuana." See 8 U.S.C. § 1182(h).
Thus, if you have been convicted -- once -- of possessing less than 30 grams of marijuana, you are eligible to seek a waiver of inadmissibility. However, this possession charge cannot be in conjunction with sales or distribution of that drug. Importantly, other crimes are also eligible for the waiver. The important focus is on the words "relates to." One court gave this example:
"Consider someone who is arrested while smoking marijuana from a pot pipe at a concert. In most states, that's three crimes: possessing marijuana, possessing drug paraphernalia, and using drugs in a public place. If the state obtains a conviction for possessing marijuana, then § 1182(h) applies if the alien had 30 grams or less."
The court went on to hold that the words "relates to" also means that the alien can apply for the exception if convicted of the other two crimes: possessing drug paraphernalia and using drugs in a public place. See Escobar Barraza v. Mukasey, 519 F. 3d 388 (US Court of Appeals, 7th Circuit 2008). In that case, the conviction was for possessing drug paraphernalia. The court held that the person seeking entry into the US was entitled to seek the waiver and that immigration services should have evaluated granting the waiver. The court also held that the discretion to grant the waiver still fell within the powers of the immigration services.
Whether a person is eligible for the waiver is what is called a "circumstance-specific" evaluation. That is, the immigration services must look at the circumstances surrounding the conviction. Thus, for example, if the criminal records do not disclose how much marijuana was in the person's possession at the time of arrest, then the person can provide competent evidence showing that the amount was less than 30 grams.
How to apply for the waiver?
For those seeking a waiver, the proper form to file is I-601 seeking a waiver of inadmissibility. See blank copy for Form I-601 here. There are two places on the form to "check" if your conviction "relates to" simple possession of 30 grams or less of marijuana. The waiver can be decided by the local immigration office without an applicant needing to affirmatively file a waiver.
Contact Yekrangi & Associates Today
For more information, contact the Orange County Immigration Attorneys at Yekrangi & Associates today. You are not alone and we will fight for you. Yekrangi & Associates works to meet a higher standard. Our first goal is your satisfaction. Contact us at (949) 478-4963 to schedule a consultation or complete our convenient “Get Your Consultation” form here. We are located in Irvine, California.