Criminal Defense of Immigrants

(A)  Drug Abuse.  The Public Health Service regulation defines 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.”[79]  Section 202 of the Controlled Substances Act is codified at 21 U.S.C. § 802, which lists hundreds of controlled substances in five schedules.  Marijuana is included.

The PHS regulations, adopted by DHS,[80] state that examining physicians should evaluate applicants for admission according to the 1991 PHS instructions, entitled “Technical Instructions for Medical Examinations of Aliens” and “Technical Instructions for Medical Examinations of Aliens outside the United States.”  The section on drug abuse was amended in 1992.[81]   

The original version of the Technical Instructions defined an abuser as any person who had made non-medical use of unlawful drugs and was not in “remission.”  Remission was defined as “no non-medical use of a [listed drug] for five or more years ....”[82] 

Under the 1992 changes, remission is defined as no nonmedical use for only the preceding three, not five, years.  The new definition of “nonmedical use” is “more than experimentation with the substance (e.g., a single use of marihuana or other non-prescribed psychoactive substances, such as amphetamines or barbiturates).”[83] Thus, a person who has not used drugs at all, or who has not engaged in “more than experimentation” with drugs for the last three years, is not inadmissible as an abuser.  The instruction goes on to state that “[w]hen a clinical question is raised as to whether the use was experimental or part of a pattern of abuse, a physician with experience in the medical evaluation of substance abusers should be consulted to assist in making this determination.”

[79] 42 C.F.R.§ 34.2(g) (as amended by May 31, 1991 interim rules, 56 Fed. Reg. 25000), reported on and reproduced in Interpreter Releases, June 3, 1991 and June 17, 1991.

[80] Public Health Service regulations are found at 42 CFR Part 34.  The PHS regulations are adopted by INS pursuant to 8 C.F.R. § 232.1.

[81] The Technical Instructions for Medical Examinations of Aliens (June 1991, update July 1992) are available from the U.S. Dept. of Health and Human Services, Public Health Service, Centers for Disease Control, Center for Prevention Services, Division of Quarantine, Atlanta, Georgia 30333.  See discussion in “Exclusion Grounds Under the Immigration Act of 1990” in Immigration Briefings, supra.  The 1992 update was provided in a letter to panel physicians from Charles R. McCance, Director, Division of Quarantine, National Center for Prevention Services, dated July 13, 1992.

[82] PHS, Technical Instructions for Medical Examinations of Aliens and Technical Instructions for Medical Examinations of Aliens in the United States (June 1991), at III-74.

[83] Amendments to p. III-14, 15 of Technical Instructions for Medical Examination of Aliens.