Applicants who are found to be drug abusers or addicts are inadmissible under  INA §212(a)(1)(A)(iv). Drug abuse and drug addiction are current substance-use disorders or substance-induced disorders of a controlled substance listed in Section 202 of the Controlled Substances Act, as defined in the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association or by another authoritative source as determined by the Director. See Title II of Pub. L. 91-513 (PDF), 84 Stat. 1242, 1247 (October 27, 1970), as amended, codified at 21 U.S.C. 801 et. seq. See 42 CFR 34.2(h) (drug abuse). See 42 CFR 34.2(i) (drug addiction). HHS regulations define Director as the Director of CDC or a designee as approved by the Director or Secretary of HHS. See 42 CFR 34.2(g). How is this determination Made? The civil surgeon must check the appropriate findings box on the medical examination report that is done as part of the Adjustment of Status or Visa Interview process (the Form I-693). The finding can also be made based on statements an applicant makes to immigration officers either at a border crossing or during a USCIS interview. Admissions to using illegal drugs, even only an isolated incident, is enough for an officer to make this determination if they believe it to be true under the totality of the circumstances. How is this determination Made? The civil surgeon must check the appropriate findings box on the medical examination report that is done as part of the Adjustment of Status or Visa Interview process (the Form I-693). The finding can also be made based on statements an applicant makes to immigration officers either at a border crossing or during a USCIS interview. Admissions to using illegal drugs, even only an isolated incident, is enough for an officer to make this determination if they believe it to be true under the totality of the circumstances. Can Someone Obtain a Visa After Immigration Has Found Them Inadmissible Under INA §212(a)(1)(A)(iv) as a Drug Abuser? If the applicant is classified as a drug abuser or addict, the applicant can apply again for an immigration benefit if his or her drug abuse or addiction is in remission. Remission is now defined by DSM criteria, and no longer by a set timeframe as it was under previous Technical Instructions. Under the pre-2010 Technical Instructions, an applicant’s substance abuse or addiction was in remission if the applicant had not engaged in non-medical use of a controlled substance within the past 3 years, or non-medical use of a non-controlled substance within the past 2 years. In order for an applicant’s drug abuse or addiction to be classified as in remission, the applicant must return to a civil surgeon for a new assessment. Most applicants who are found to be drug abusers or addicts are ineligible for a waiver; the availability depends, however, on the immigration benefit the applicant seeks.Chapter five of the USCIS Policy Manual discusses the possibility and process of requesting a waiver of drug abuse and addition. In general, the rule is that there is no waiver of this ground of inadmissibility. There are however, specific statutory provisions that permit USCIS to waive this ground, for asylees and refugees seeking adjustment, and Legalization and SAW applicants. These waivers are specific to asylees and refugees. The other waiver available is under INA 212(g).  Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility [8 USCIS-PM B] for more information on inadmissibility on account of drug abuse or drug addiction. Requesting an Advisory Opinion from the CDC If an officer has a case where there is a question concerning the diagnosis or classification made by the civil surgeon or panel physician, the officer may forward the pertinent documents to CDC and request an advisory opinion. The request should include the following documents: Once the documents are received by CDC, CDC reviews the documents and forwards a response letter with results of the review to the USCIS office that submitted the request.  CDC’s usual processing time for review and response back to the requesting USCIS office is approximately 4 weeks. Upon receipt, the officer should review CDC’s response letter to determine next steps.  (h) Drug abuse. “Current substance use disorder or substance-induced disorder, mild” as defined in the most recent edition of the Diagnostic and Statistical Manual for Mental Disorders (DSM) as published by the American Psychiatric Association, or by another authoritative source as determined by the Director, of a substance listed in Section 202 of the Controlled Substances Act, as amended (21 U.S.C. 802). (i) Drug addiction. “Current substance use disorder or substance-induced disorder, moderate or severe” as defined in the most recent edition of the Diagnostic and Statistical Manual for Mental Disorders (DSM), as published by the American Psychiatric Association, or by another authoritative source as determined by the Director, of a substance listed in Section 202 of the Controlled Substances Act, as amended (21 U.S.C. 802). Title 42 Chapter I, Sub-chapter C, Part 34 § 34.2 USCIS Policy Manual Chapter 8 USCIS Policy Manual Volume 8, Chapter 11, Part B

The Second Circuit has found that NY defines narcotic in a way that is overbroad and includes substances that are not on the federally controlled substance schedules and therefore, under the categorical approach, are not controlled substance offenses. U.S. v. Minter, No. 21-3102 (2d Cir. 2023) The issue on appeal is whether Defendant’s 2014 conviction under New York Penal Law Section 220.39(1) for the sale of cocaine was for a “serious drug offense” and therefore qualifies as a predicate offense for the purposes of a sentencing enhancement under the ACCA. The Second Circuit affirmed, holding that New York’s definition of cocaine is categorically broader than its federal counterpart, thus, Defendant’s cocaine conviction cannot serve as a predicate ACCA offense. The government argued that under Gonzalez v. Duenas-Alvarez, that even if the New York definition of cocaine is broadly construed to criminalize all its isomers, Minter must show a “realistic probability, not a theoretical possibility,” that New York’s statute is broader in practice. The court explained that here, the New York statute applies on its face to all cocaine isomers; the CSA does not. In citing Hylton, the court wrote, “When the state law is facially overbroad, we look no further.” NOTE: Reason to believe charges do not require a conviction. See reason to believe. NY Penal Law § 220.39: Criminal sale of a controlled substance in the third degree There are several offenses prohibiting selling drugs in the New York Penal Code. Most require that you sell or attempt to sell a minimum amount of specific types of drugs in order to be prosecuted. You will have committed the crime of criminal sale of a controlled substance in the third degree under New York Penal Code § 220.39 if you knowingly and unlawfully sell drugs as follows: In addition you could be prosecuted for criminal sale of a controlled substance in the third degree if you sell narcotics to someone who is under the age of 21, or you sell a stimulant, hallucinogen, hallucinogenic substance, or lysergic acid diethylamide and you previously have been convicted of a drug offense.

A conviction for selling a simulated controlled substance that was not actually a controlled substance is not an offense relating to a controlled substance under INA § 237(a)(2)(B)(i). Matter of Sanchez-Cornejo, 25 I. & N. Dec. 273 (BIA 2010). INA § 237(a)(2)(B)(i) – Offense “Relating To” a Controlled Substance Any alien who at time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802), other than a single offense involving possession for one’s own use of thirty grams or less of marijuana is deportable. Matter of Sanchez-Cornejo, 25 I. & N. Dec. 273 (BIA 2010) Texas conviction of delivery of a simulated controlled substance, as defined by 482.001(4) of the Texas Health and Safety Code, is not an aggravated felony drug trafficking offense because federal law does not punish distribution of a non-controlled substance in place of a real controlled substance; the violation is, however, a controlled substances offense for purposes of triggering removability under INA 237(a)(2)(B). For NY Controlled Substance Convictions the sale of actual controlled substances may not be a crime related to a controlled substance. See U.S. v. Minter, No. 21-3102 (2d Cir. 2023).

SINGLE MARIJUANA OFFENSE EXCEPTION Exception for single conviction for marijuana under 30 grams. INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i) (2006). For purposes of INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i) (2006), the phrase a single offense involving possession for ones own use of thirty grams or less of marijuana calls for a circumstance-specific inquiry; a respondent convicted of more than one marijuana-related offense arising out of the same underlying facts may still meet the single offense exception. See Matter of Davey, 26 I&N Dec. 37 (BIA 2012). Matter of Davey, 26 I&N Dec. 37 (BIA 2012) Arizona convictions of possession of marijuana, in violation of Ariz. Rev. Statute 13-3405(A)(1), and possession of drug paraphernalia (the plastic bag in which the marijuana was contained), Ariz. Rev. Statute 13-3415(A), constituted a single offense involving a small quantity of marijuana, under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), since Congress meant offense in this statute to refer to the totality of an aliens specific acts on a single occasion, so the exception is available to a noncitizen convicted of more than one statutory offense, provided that each crime involved a single incident in which the alien possessed a small amount of marijuana for personal use.); following the reasoning of Matter of Martinez-Espinoza, 25 I&N Dec. 118, 124 (BIA 2009) (we concluded that the term offense used in [INA] section 212(h) was best understood as refer[ring] to the specific unlawful acts that made the alien inadmissible, rather than to any generic crime.).