Erroneous Finding Of Inadmissibility Under INA §212(a)(2)(A)(i)(II) Vacated By CBP – Paying Fine At Customs NOT An Admission To A Controlled Substance Violation

Recently, we assisted our Client, a Canadian citizen, in vacating an erroneous determination regarding his inadmissibility under INA §212(a)(2)(A)(i)(II) [Controlled Substance Violation] and subsequently obtaining admission in B-2 status, without requiring a non-immigrant waiver under INA §212(d)(3) [Form I-192].

In November 2013, our Client attempted to enter the U.S. through the Peace Bridge Port of Entry (POE) in Buffalo, NY to attend a Buffalo Bills game. During his encounter with U.S. Customs & Border Protection (CBP), our Client was alleged to have drugs (less than a gram of marijuana) in his vehicle. As a result, CBP Officers imposed a $500 monetary Customs fine. Upon payment and processing, our Client was escorted back to Canada. CBP exercised discretion and chose not to seek to have our Client criminally prosecuted for a possession offense.

The following Saturday, our Client attempted to enter the U.S. at the Chicago Midway Airport but was denied entry by CBP, advised that he was inadmissible under INA §212(a)(2)(A)(i)(II) as a result of the incident the week before and that he would forever require a non-immigrant waiver in the future to re-enter the U.S. Shortly thereafter, our Client scheduled a consultation with our office to prepare his non-immigrant waiver application.

After an extended consultation with the Client and a thorough review of the facts and his documents, we concluded that CBP Chicago officials had made an incorrect determination regarding his admissibility under INA §212(a)(2)(A)(i)(II). Specifically, CBP at Chicago Midway erroneously concluded that our Client’s payment of a monetary fine was the equivalent of him making an admission to the essential elements of a controlled substance violation. However, our Client did not make any admission that would be legally sufficient to find him inadmissible under INA §212(a)(2)(A)(i)(II) and the mere payment of the monetary fine was not the legal equivalent of an admission.

In fact, the payment of such monetary fines was addressed in a 1995 legal opinion, provided by the General Counsel of the legacy Immigration and Naturalization Service (INS), which clearly and unequivocally stated that, “[a]n alien who agrees to pay the penalty does not by doing so admit having committed acts which constitute the essential elements of a controlled substance violation” under INA § 212(a)(2)(A)(i)(II).

As such, we recommended filing a detailed submission with CBP to request that CBP correct our Client’s records and vacate the finding of inadmissibility under INA § 212(a)(2)(A)(i)(II) since such finding had been made erroneously and was not supported by applicable law or guidance.

With our Client’s consent, we submitted a detailed legal brief, together with supporting documentation, to CBP requesting they vacate the erroneous finding of inadmissibility. After reviewing our submission, CBP Officers concurred with our legal analysis. We later accompanied our Client to the Port of Entry and after inspection and admission, our Client was admitted to the U.S. as a visitor (B-2) - without the need for a non-immigrant waiver.

This resolution was vital for our Client since it cleared up many prospective immigration barriers to the U.S. for him. Had the inadmissibility finding remained, our Client would have required a non-immigrant waiver for the rest of his life – and would therefore need to continuously file non-immigrant waivers, pay applicable fees, and be subject to secondary screening. With the finding of inadmissibility vacated, our Client can continue his unfettered ability to enter the U.S. as a business visitor (B-1) or visitor for pleasure (B-2), or in the future, choose to immigrate to the U.S. if he would like.