“Give me your tired, your poor, your huddled masses yearning to breathe free…unless they are criminals, alcoholics, drug addicts, sick or really poor.” You may recognize the first part of that sentence as the most famous phrase from The New Colossus, the poem written by Emma Lazarus and etched on the Statue of Liberty over 100 years ago. It represents America’s history of encouraging foreign nationals, who are seeking a better life, to come to America to live and work. The second part of the sentence reflects current US immigration inadmissibility and deportability law under the Immigration & Nationality Act (INA), federal case law, and administrative regulations.

Many of my immigration attorney peers have barely hidden, or even completely transparent, contempt for United States immigration laws and the people who administer them. Some practitioners feel that we should have no border, that everyone who wants to come should be able to come, and that we should never ever “tear families apart” by deporting someone or barring their admission, no matter how dangerous or undesirable they are. That’s not me.

On the flip side, some immigration reform advocates label all aliens as criminals and feel that we should kick ‘em all out, lock the place down, and never interact with another foreign national again. That’s not me either. I’m somewhere in the middle. I believe that a sovereign nation has the duty to regulate its border in such a way does not harm it’s citizens or threaten its future existence by allowing terrorists into the country. We do not have room for everyone who wants to live in America, so exclusions need to be made. Thus, we get to be choosy. However, I believe that we treat certain individuals, such as those suffering from medical or psychological disorders, much more harshly than they deserve to be treated.

Like many social issues in the United States, immigration ignites passions on both sides of the aisle. But, compared to other civil rights movements like race or gender, some laws which regulate immigration in America do not reflect modern norms and need to be overhauled. Take HIV, a communicable disease whose mode of transmission was nailed down at least two decades ago; persons infected with the HIV virus were inadmissible to the United States up until…a few months ago. When the ban was enacted the public health risk of HIV was admittedly serious enough to warrant it, if only because no one knew for certain how it spread. But, even in the face of new evidence that the risk of transmission from casual contact was slim, the law was never repealed. How many thousands of individuals were made to feel the devastation of being told, “you’re not worthy of coming to the US” simply because our government was too lazy to, essentially, update a spreadsheet. And don’t get me started on the fact that being gay or having an extramarital affair could prevent you from becoming a naturalized US citizen. Still.

Drug Addiction & Alcohol Abuse

The same complaint can be made about the treatment of drug addicts and alcoholics by the INA and, to a larger extent, the people that make and implement the federal immigration laws. Over the past 10 years, states have turned the traditional way of handling drug addicts who commit addiction-related crime on its head. Gone are the days of mandatory jail sentences for drug offenders and zero tolerance for recidivism. Judges recognize that crime that occurs in conjunction with or to facilitate drug abuse will not stop until the abuser stops using. Jail does not work for these individuals, either because drugs can be obtained behind bars or because temporarily blocking access to drugs during a period of incarceration does nothing to help reduce the addiction; many start using again immediately upon release. Instead of sentencing addicted criminals to jail, many states sentence drug addicts to treatment, with reduced or eliminated criminal sanctions upon successful completion of the program. Studies show that the treatment model is more successful than the incarceration model in reducing recidivism.

However, substance abusers are treated particularly harshly under the federal immigration system; simply admitting to having been under the influence of an illegal drug can bar you permanently from immigrating to the United States. Although a few immigration laws recognize that drug or alcohol addiction is a disease, the major provisions regulating inadmissibility, deportability and naturalization continue to treat substance abusers like criminals. Given that be labeled by immigration authorities as a criminal, by itself, is not the same as a conviction in criminal court, why should someone care if they are deemed to be a “criminal” alien by immigration officials?

Criminal convictions or a history of criminal activity can have dire consequences for non-citizens who are in the US or want to come to the US. Removal of criminal aliens is a top priority for the United States government, and ICE (Immigration & Customs Enforcement) in particular. In 2007, ICE removed 275,00 aliens and initiated 165,000 new removal proceedings under the Criminal Alien Program. While aliens who suffer from strictly medical disorders, such as cancer or diabetes, escape the focus of ICE’s removal program, those who suffer with substance abuse can be deported as criminals under certain provisions of immigration law. Criminal defense counsel must be adept at advising clients on immigration matters, especially on the consequences of certain convictions or sentences under state and federal law. Conversely, immigration attorneys must know how certain criminal matters can effect a client’s immigration status or immigration benefit eligibility prior to filing a benefit application and exposing the client to potential issues.

It is important to understand that, unless someone is a US citizen, they are never completely insulated from running afoul of the US immigration system. A person’s eligibility to visit, live in or work in the United States is examined over and over again at various points in the immigration process. In addition, if an immigration official makes a mistake and admits someone who was actually inadmissible, immigration benefits can be stripped and the person can be deported.

Given this temporary nature of immigration benefits, it may seem that all eligible foreign nationals should apply for US citizenship as soon as they become eligible. However, given that applying for citizenship allows immigration officials to, once again, examine issues related to ineligibility, deportability and good moral character, it is essential to consult with an immigration attorney prior to filing a naturalization application. An immigration attorney can help identify issues that could not only make the person ineligible for citizenship, but could also get them deported.

ADMISSIBILITY

Unless you are an American citizen, you need permission to visit, enter or live in the United States. Although your right to be in America is re-evaluated at various times, all aliens must undergo an admissibility evaluation by an officer of the Customs & Border Patrol (CBP) when attempting to enter the United States at a designated port of entry. Even if you have been approved for and received a visa at a foreign consulate, United States CBP has the authority to determine that you cannot enter the United States and can turn you right around. A visa gives you the right to knock on the door; CBP decides whether or not to let you in. When evaluating whether or not a foreign national can enter, immigration officials refer to section 212 of the Immigration & Nationality Act (INA). For example, some applicants who have drug-related crimes or have been found to be addicts due to drug or alcohol issues may be barred from entering the United States.

DEPORTABILITY & REMOVABILITY

After a foreign national has been admitted, he or she does not have the right to stay here permanently. Events such as expiration of a visa, commission of a crime, or commission of an immigration violation can cause the United States government to roll up the welcome mat and send the alien home. Known as removal, or deportation, the process of determining if someone has the legal right to remain in the United States is regulated by section 237 of the INA. These deportation grounds determine an alien’s right to be in the United States unless, or until, the alien becomes an American citizen through naturalization.

GOOD MORAL CHARACTER

Certain immigration benefits are so valuable to a foreign national that not only must they overcome the grounds of inadmissibility and deportability, but they also must show that they have good moral character. Good moral character is more than just being a nice person. It is a legal term of art in immigration law and is a confusing concept for aliens, practitioners and even immigration officials to understand. Examples of benefits that require good moral character include naturalization, cancellation of removal and certain forms of relief for victims of domestic violence.

Figuring out exactly how the three major eligibility provisions of the INA (inadmissibility, deportability and good moral character) deal with drug addicts and alcoholics requires time, patience and organization. It also requires a fundamental understanding of the two major ways that drug addicts and alcoholics can be classified, sometimes simultaneously: those who are regulated by the medical provisions of immigration law and those who are regulated by criminal provisions of immigration law. Aside from the US tax code, US immigration law is probably the most complicated set of statutes and regulations that a lawyer has to navigate.

To complicated matters further, more than one section of the Immigration and Nationality Act may apply to a particular situation. For instance, a person applying for citizenship through naturalization must meet good moral character requirements (as discussed in Section 101(f) of the INA). However, in addition, the applicant will also be subject to the grounds of deportability under section 237 and, if any of those grounds apply, will be given a demand to appear at immigration court for deportation proceedings instead of an invitation to attend a citizenship ceremony. For adjustment of status, applicant must satisfy both the grounds of inadmissiblity found in INA 212, as well as the deportation grounds of section 237.

Any evaluation of an alien’s US immigration status or eligibility for benefits should begin with a thorough and comprehensive evaluation of his or her medical, criminal and immigration background. In addition to interviewing the client extensively about all facets of their background, copies of an FBI fingerprint check, arrest reports, sentencing reports, court transcripts, court dispositions, probation reports, and substance abuse treatment reports should be obtained so that the immigration attorney can get a very clear picture of how any criminal or medical issues will affect the immigration case.