I had a chance to help a fellow practitioner the other day, and I thought I would share his question so others might benefit, too!
You do a ton of litigation, and I also know you are helpful to newer practitioners. I'm a newer practitioner, so I hope you don't mind me asking a question about AOS. My question is about the I-485 question in Part 3.C.1.a. "Have you ever, in or outside the United States: a. Knowingly committed...a drug-related offense for which you have not been arrested." I am trying to figure out how it comports with INA 212(a)(2)(i)(II). That section deals with inadmissibility relating to "admits committing acts which constitute the essential elements of" a drug-related offense." Are these two related?
This all comes about because of a client's discussion with me. If a client tells you they used drugs, do you think you are obligated to check "Yes" to Part 3.C.1.a.? Or do you think "Yes" requires something more than just your knowledge the client used drugs?
Your question fits into the general category or “once the cat is out of the bag (to the lawyer), am I obligated to do something about it?” The answer is…sometimes.
Generally, in order for you to take action on what you client says, it needs to be clearly and unequivocally a violation of some rule or law. And even then, you are not obligated to disclose it; rather you cannot sign or submit something that you know contains a material misstatement. The distinction is important. What the client chooses to say at, say a interview, or open Court, is up to the client. However, you cannot submit, under your signature, or as a proffer, something you know to be false.
To bring this back to your question – merely using drugs may or may not be illegal back in this person’s home country. You are not a lawyer (presumably) from his/her home country, so you can’t say for certain whether his/her action rises to the level of requiring a “yes” answer to 3.C.1. By the way, 3.C.1 is absolutely NOT the same as INA 212(a)(2)(i)(II). 3.C.1 has a “knowing” requirement that is absent in 212(a)(2)(i)(II) – and that is a significant difference in the criminal world.
Again, back to your question – unless the individual indicated, “yes, I have knowingly committed a drug offense in my home country” the answer would be – “I can’t say whether that is a drug offense in your home country, as I don’t practice law there. You can answer this question “No” if you believe it is not an offense, or you can contact a lawyer in your home country to get information on whether this is an offense or not.”
As a practical matter, unless he was arrested, or charged, there won’t be a record of anything. The risk here is minimal (in terms of USCIS learning of his prior drug use, absent an arrest or conviction). Now, if you have a dummy for a client who intends to blurt out that they like to smoke weed and do crack back in Fez – well, all bets are off.
Do you have an immigration question? Ask us! We're happy to help. We've handled immigration defense and filing for many years -- and we're glad to bring our expertise to bear for your case. 1-800-579-9864 or firstname.lastname@example.org.
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Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
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