The Filipino Reporter

IMMIGRATION

Year 39, No. # 35 July 30 - August 6, 2010

Did your relative ‘use’ drugs or violate Philippine drug laws?

Dear Atty. Gurfinkel:

I am a U.S. citizen and petitioned my husband, who is in the Philippines. When he went for his medical exam at St. Lukes, the doctor asked him if he had ever smoked marijuana. Being honest, he said that when he was in college, he smoked a few times, but it has now been decades since he last used marijuana or any other drugs.

When my husband later went to the US Embassy for his immigrant visa interview, the consul told him that because he had admitted using marijuana, he was now banned for life from ever going to the U.S. I am completely shocked and devastated. My husband and I have 3 children, all born in the U.S. Do you mean that my kids will have to grow up in the U.S. without their father? He was 18 years old when he last smoked marijuana, and is now 45 years old.It was so long ago, and such a minor thing, that I cannot believe he is now banned for life. Is there anything that can be done to help me, my kids, and my husband?

Very truly yours,
E.S.

Dear E.S:

U.S. immigration laws state that a person could be "inadmissible" (or ineligible to go to the U.S.) if he "admits committing acts which constitute the essential elements of ... a violation of ... any law or regulation of ... a foreign country relating to a controlled substance ..." In other words, if a person merely admits they violated a drug law, they could be inadmissible, even if they were never caught, arrested, charged, or convicted of violating any drug laws. However, the question needs to be asked: which drug law was violated, and what are the essential elements of that law?

In your husband’s case, the law in question is Section 15 of the Comprehensive Dangerous Drugs Act of 2002 of the Philippines ("DDA 2002").

Under that law, a person violates the law if he had been "apprehended or arrested, who is found to be positive for use of any dangerous drug, after a confirmatory test..." Thus, to violate Section 15 of the DDA 2002, not only must a person have "used" drugs, but they must also have tested positive for the drug used. It would seem that the Embassy is interpreting the law by focusing merely on the admitted use of a drug, but overlooking the provision that requires that the person must have also tested positive.

(I know that in 2002, there was a court decision, Pazcoguin vs. Radcliffe, which dealt with the issue of a Filipino admitting to drug use. However, the Pazcoguin case was based on an old Philippine law, the Dangerous Drugs Act of 1972 ("DDA 1972"). That law has been repealed and replaced by the DDA 2002! While the old law imposed penalties for the "use" of marijuana, the DDA 2002 has now changed that law, and is more lenient, requiring not only the use of drugs, but also testing positive for that use. It could be possible that the Embassy has been relying on the old law, by applying a life time ban for merely admitting drug use, even if the person does not test positive.)

This life-time ban (for merely admitting drug use so long ago) bothered me so much that on a recent trip to Manila, I made it a point to meet with Atty. Cezar Posada, the Legal Officer of the Legal Affairs Division of the Dangerous Drugs Board (DDB) of the Philippines. The DDB is mandated to perform a number of tasks in connection with the DDA 2002 including:

formulate, develop, and establish comprehensive, integrated, unified and balanced national drug abuse prevention and control strategy; and promulgate such rules and regulations as may be necessary to carry out the purposes of the Act. In other words, the DDB in charge of interpreting and administering the DDA 2002, and Atty. Posada is the former chief, legal division, now consultant. (The DDB would be like the Visa Office in the State Department, which provides legal guidance to the Embassies, and writes the FAM).

Atty. Posada confirmed that the "essential elements" of a violation of Section 15 of the DDA 2002 requires both the use of drugs AND testing positive after confirmatory test. If the person does not test positive, then the law is not violated, as there would be NO hard evidence to show possible violation of Section 15.

Atty. Posada further noted that the Philippines changed its drugs laws from the 1972 version (which criminalized the mere use of drugs) to the present version, because drug dependency is viewed more of a medical issue than a criminal violation. Even if a person tested positive for drug use, the "penalty" for a first offense is a mere 6 month rehab program - not prison or a "life time ban."

In fact, Atty. Posada was surprised to learn that the Embassy would ban people for life for admitting that, years ago, they may have used drugs, but are now completely drug free. He believed that if a person was now drug free, it should be viewed favorably by the Embassy (since the person has no drug dependency), versus being viewed as a reason to impose a life time ban. (If you think about it, if Presidents Clinton, Bush, and Obama were Filipino, and were applying for visas, they would also be denied, as they admitted to drug use many years ago.).

I think that this is great news for people who may had been banned for life for admitting drug use, but have not used drugs for years, and were never tested for drugs, or, if tested, never tested positive. To have an official of the Philippine government in charge of that very law confirm that the law requires not only "use" of the drug, but also testing positive as an essential element of a violation of that law, provides new hope for old denials.

If you or somebody you know was banned for life for drug use, but was never tested (or did not test positive), these new developments could provide new hope for them and their chances of immigrating to the U.S. They should seek the advice of a reputable attorney for assistance in dealing with their lifetime ban.

(Editor's note: Michael J. Gurfinkel has been an attorney for over 29 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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