Immigration Analysis Required for Violation of State Drug Statute


27 I&N Dec. 560 (BIA 2019)

Where an alien has been convicted of violating a State drug statute that includes a controlled substance that is not on the Federal controlled substances schedules, he or she must establish a realistic probability that the State would actually apply the language of the statute to prosecute conduct involving that substance in order to avoid the immigration consequences of such a conviction. Matter of Ferreira, 26 I&N Dec. 415 (BIA 2014), reaffirmed.

New Immigration Policy Aims to Reduce Overstays and Changes How USCIS Calculates Unlawful Presence for F-1, J-1 and M-1 Nonimmigrants and their Family

On August 9, 2018, USCIS released a Policy Memorandum describing how it has changed its policy on calculating unlawful presence for foreign students (F-1), foreign exchange visitors (J-1) and the foreign vocational students (M-1) nonimmigrants, and their dependents (F-2, J-2, and M-2), admitted or otherwise authorized to be present in the U.S. in Duration of Status (D/S) or admitted until a specific date.

According to the new immigration policy, nonimmigrants who fail to maintain their nonimmigrant status will now, and as of August 9, 2018, start accruing unlawful presence, on the earliest of any of the following:

  • The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity;
  • The day after completing the course of study or program;
  • The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a certain date; or
  • The day after an immigration judge orders the nonimmigrant excluded, deported, or removed (whether or not the decision is appealed).

Since the creation of this new policy, the Student and Exchange Visitor Information System (SEVIS) has provided and will be providing USCIS officers additional information about the nonimmigrant’s immigration’s history, including information that the F, J, or M nonimmigrant may have completed or ceased to pursue his or her course of study or activity, that previously they may not have received.

If a nonimmigrant’s request for an extension of status or change of status is denied because it was frivolously filed or because the applicant engaged in unauthorized employment, the filed petition will not protect the nonimmigrant from accruing unlawful presence. Additionally, if a request for an extension or change of status is denied because it was untimely filed, the application will also not protect the nonimmigrant from accruing unlawful presence.

Nonimmigrants under 18 years of age do not accrue unlawful presence.  Therefore, any F, J or M nonimmigrant who is under 18 years of age will not accrue unlawful presence.  Additionally, the F, J, or M nonimmigrants may be otherwise protected from accruing unlawful presence in certain situations.  Please contact attorney Helen S. Bennett at; (561) 393-7037 or for more information and an individualized consultation to determine whether you are accruing unlawful presence or whether your situation is one which does not trigger unlawful presence under INA 212(a)(9)(B) and INA 212(a)(9)(C).

Press Release: Asylum History

The asylum system was established in 1968 when the United States signed the protocol to the 1951 United Nations Convention Related to the Status of Refugees, and then passed the 1980 Refugee Convention.

These measures followed public outcry about the treatment by the United States and other countries of boatloads of refugees who sought protection from Nazi Germany but were turned away. In the case of the SS St. Louis, more than 900 people were returned to Europe, where 254 died in the Holocaust.

The law says a person may apply for asylum at a port of entry or from within the United States. People generally may apply for asylum up to one year after their arrival in the United States. An application for asylum may also be used as a defense from deportation. The law explicitly permits people who are in the United States to seek asylum, whether they entered with documentation or not.

In order to seek asylum at a port of entry, asylum seekers declare that they fear being retured to their home country and wish to seek asylum. They are to be promptly interviewed by an asylum officer who makes an initial determination whether their fear is credible. If so, their case will go before a judge for a final decision. If not, they may appeal in immigration court or be placed in removal proceedings.

These laws and procedures for asylum were established by Congress in accordance with our obligations under the international accords we signed with our allies to protect refugees worldwide. Any of the migrants traveling through Mexico who reach our border should be processed through the asylum system, just as all migrants arriving at our border have been for many years. Asylum is the law of the land, and the administration must follow that law as enacted by Congress.

Catholic social teaching holds that people have a right to migrate to sustain their lives and the lives of their families. It also says governments have a right to regulate their borders, and must do so with justice and mercy. See here for further explanation and links to resources.

For more information about asylum law and policy, check out the following resources from the CLINIC’S partners and other experts:

Reporters: To interview one of CLINIC’s asylum law experts, contact Patricia Zapor, communications director, at 301-565-4830. This press release is being forwarded from the Catholic Legal Immigration Network, Inc. CLINIC advocates for humane and just immigration policy. Its network of nonprofit immigration programs—330 organizations in 47 states and the District of Columbia—is the largest in the nation.