The Problem of Deporting Drug Addicts and Abusers Without Convictions

April 21, 2018

Guest blogger: Justine Levy, law student, University of San Francisco:

INA §212(a)(1)(A)(iv) bars noncitizens seeking admission to the United States who are determined “to be a drug abuser or addict.” Under INA §237(a)(2)(B), deportation is possible under two provisions related to controlled substance offenses. The first provision requires a conviction relating to controlled substances. The second provision does not and states that “any alien who is, or at any time after admission has been, a drug abuser or addict is deportable.” The terms “drug abuser” and “drug addict” are not defined in the immigration statutes. The Public Health Service regulations, however, define drug abuse as “the non-medical use of a substance listed in section 202 of the Controlled Substances Act…which has not necessarily resulted in physical or psychological dependence.” This is an incredibly broad definition and gives the government a significant amount of discretion in making decisions regarding these statutes.

The statutes are similar to a law discussed in Robinson v. California, 370 U.S. 660 (1962). Robinson was convicted under California Health and Safety Code § 11721, a statute that made it illegal to “be addicted to the use of narcotics.” Id. Robinson had been charged with drug possession and addiction. Id. at 661. During trial, the district court judge informed the jury that even if they found he was not using drugs, Robinson could still be found guilty of being addicted to narcotics. Id. at 662. He was ultimately convicted on only the addiction charge. Id. at 663. The Supreme Court held that the California statute was unconstitutional. Id. at 667. The Court stated it is a violation of the defendant’s Fourteenth Amendment right because it punishes drug addiction, which is a disease and status. Id. at 666. The Court drew a parallel that punishing someone for drug addiction is similar to punishing someone for a mental illness or physical disease. Id. In his concurring opinion, Justice Douglas noted that “confine[ment] for treatment or for the protection of society” would be acceptable, but that it is cruel and unusual punishment to convict and confine an drug addict. Id. at 676. Additionally, the purpose of the California statute was to penalize and not to cure the illness of addiction. Id. The Court’s holding in Robinson should pose a challenge to the INA statutes.

The California statute and INA statutes are incredibly similar. The Robinson case involved the issue of whether the conviction was constitutional. However, the INA statutes, do not require a conviction for drug addiction, only that the person be determined to be drug addict or abuser. The consequences for a mere determination could result in deportation or denial of admission.

The INA provisions seem to be at odds with the underlying problem identified in Robinson. In Pondoc Hernaez v. I.N.S., 244 F.3d 752 (9th Cir. 2001), the Ninth Circuit somewhat addressed this double standard. Petitioner was ordered to be deported on the basis of overstaying his visa and drug addiction and the immigration judge found he was ineligible for voluntary departure because his drug addiction charge restricted his ability to demonstrate good moral character. Petitioner appealed the IJ’s decision denying voluntary departure. The BIA denied the appeal and motion to reopen. Petitioner appealed to the Ninth Circuit. The INS argued that the Ninth Circuit lacked jurisdiction to consider the case because of IIRIRA’s transition rules prohibiting appeals in which “an alien who is… deportable by reason of having committed a criminal offense.” Petitioner argued the court had jurisdiction because his drug abuse/addiction was not a criminal offense. The court held, that based on Robinson, “mere ‘drug abuse or addiction’ cannot be considered a ‘criminal offense’ for purposes of removing jurisdiction from this court.” However, the petitioner’s appeal was ultimately denied for on other grounds.

Pondoc Hernaez demonstrates the Ninth Circuit’s understanding and acknowledgment that drug addiction is not an actual crime, but a status. However, INA § 237 continues to be applied. It’s time for a court to use the philosophy in the Supreme Court’s ruling in Robinson, to void the drug addict provisions of INA §§237(a)(2)(B)(ii) and 212(a)(1)(A)(iv). The statute should, at the very least, be challenged to demand a more specific definition of “drug abuser and addict.”