Courts continue to uphold lifetime ban for admitting drug use to doctors at St. Luke’s

Dear Atty. Gurfinkel:

I am a US citizen, and petitioned my husband in the Philippines. When he went to St. Luke’s for his medical exam, the doctors asked him if he had ever smoked marijuana in his life. Although he is now in his mid-40s, he told the doctor that back when he was 18, he smoked marijuana a couple of times, but that was it.

When he went for his visa interview, the Consul told him he was banned for life, because he admitted that he had used drugs. Is there any hope that my husband can join me and our children in America?

Very truly yours,

RH

Dear RH:

Unfortunately, if a person admits to ever having taken drugs, even smoking marijuana decades ago, they could be banned for life. Unless and until there are changes in US immigration laws, admitting drug use, even to the doctors at St. Luke’s, could result in a lifetime ban.

Just recently, there was an unpublished decision from the Ninth Circuit Court of Appeals (which is one court lower than the US Supreme Court) dealing with drug use. In that case, a Filipino had gone to St. Luke’s for his medical exam, and told the doctors that he had used marijuana about seven times in his life. Although the visa was issued, DHS later put him in removal/deportation, when he arrived in the US. After the Immigration Judge and BIA upheld his removal, he filed a petition for review with the Ninth Circuit. But the Ninth Circuit relied on its earlier 2002 decision of Pazcoguin v. Radcliffe, which had held that an alien’s admitted use of marijuana constituted the essential elements of a controlled substance violation under Philippine law, and therefore he was banned for life. In other words, you do not need to be charged or convicted of any drug crime; merely admitting you used drugs would result in a lifetime ban.

In this most recent case, the alien tried to distinguish his situation from the earlier Pazcoguin case by stating that Mr. Pazcoguin was a habitual user, but he had only use marijuana seven times. The Ninth Circuit said it makes no difference whether a person is a habitual user (or addict), or had only used marijuana a few times. Any use (as prohibited by the Philippine drugs law) results in a lifetime ban.

The alien next argued that he was forced (or coerced) by the doctor’s at St. Luke’s into admitting his past drug use. When questioned how he was forced to confess, he replied, "They kept asking me." The Ninth Circuit found that there was no evidence to support the person’s argument that he was coerced or forced into admitting prior drug use.

I personally think that this law is extremely harsh and should be changed. If you think about it, both Presidents Clinton and Bush "admitted" that they had smoked marijuana (although Clinton said he never inhaled). If they were Filipinos applying for visas at the US Embassy, they would be banned for life! This is because they "admitted" using or smoking marijuana.

In my opinion, the Pazcoguin case seems to go against the rules on statutory construction, or on interpreting laws. Per numerous court decisions, "A statute should be construed so that effect is given to all its provisions, so that no part of it will be inoperative or superfluous, void or insignificant. It is a court’s duty "‘to give effect, if possible, to every clause and word of a statute’". (So, all laws must have a purpose, and should not be "meaningless"). In this regard, there is a different law that states that a person is not entitled to a visa only if he were an addict or abuser. Mere "experimentation" with drugs would not result in a lifetime ban. But if a single use of marijuana now makes a person inadmissible, then the other law (which bans a person only for ongoing abuse or addiction) is "inoperative or superfluous, void or insignificant." That violates the rules on statutory construction.

Therefore, it is my strong advice to anyone who is under petition in the Philippines or other countries with similar drug laws, that you do not take any drugs, or you could jeopardize your chance of coming to America. The US Government is taking a very tough stance against people who use drugs or violate drug laws.

(Michael J. Gurfinkel has been an attorney for over 26 years, and is an active member of the State Bar of California and New York, as well as the American Immigration Lawyers Association and the Immigration Section of the Los Angeles County Bar Association. He has always excelled in school: Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California.)

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