Posts Tagged ‘Canada’

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Canada’s Cannabis Act and U.S. Inadmissibility

Friday, September 21st, 2018 by W. Scott Railton

Canada’s Cannabis Act, otherwise called Bill C-45, legalizes cannabis nationally on October 17th. The starting point for all U.S. border issues is the U.S. Immigration and Nationality Act. With that in mind, I’ve put together a list below of the key provisions of the INA concerning marijuana and inadmissibility.

I. Criminality Related Grounds

A. Personal:

a.) A past conviction related to cannabis [INA § 212(a)(2)(A)(II)];
b.) Admitting to committing a violation of any law or regulation of a foreign country related to controlled substances [INA § 212(a)(2)(A)(II)];
c.) Admitting to committing acts which constitute the essential elements of any law or regulation of a foreign country related to controlled substances [INA § 212(a)(2)(A)(II)];

Note: Cannabis on person/in car: this is a Customs violation, likely warranting a fine and further questions. Not typically referred for prosecution, though a violation of the Controlled Substance Act. Waiver usually required thereafter. Also, note, cannabis may also be involved in crimes involving moral turpitude, a separate basis of inadmissibility.

B. Illicit Trafficking (“Reason to Believe”: no conviction required)

d.) Where the U.S. Government knows or has “reason to believe” (no conviction required) is an illicit trafficker, or who is or has been a knowing aider, abettor, assister, conspirator or colluder with others who are in illicit trafficking [INA § 212(a)(2)(C)(i)];

e.) A spouse, son or daughter of an illicit trafficker, who has received financial or other benefit from the illicit trafficking in the past five years, and knew or reasonably should have known that the financial or other benefit was a product of such illicit activity. [INA § 212(a)(2)(C)(ii)];

II. Health related grounds (“Drug abuser/Drug Addict”; “Physical/Mental Disorder”)

f.) A determination that a noncitizen is a drug abuser or drug addict, in accordance with regulations prescribed by Health and Human Services [INA § 212(a)(1)(A)(iv)];

g.) A determination that a noncitizen has a physical or mental disorder and behavior/ history of behavior posing threat to property, safety or welfare of others [INA § 212(a)(1)(A)(iii)(I and II)]

• Panel physician – have to pay government certified physician for exam
• CDC Technical Instructions requires 1 year of remission

III. National Security- (Unlawful purpose)

h.) Seeking entry principally or incidentally for an unlawful activity [INA § 212(a)(3)(ii)];

IV. Misrepresentation/Fraud

i.) Fraud or willfully misrepresenting a material fact in pursuit of an immigration benefit [INA § 212(a)(6)(C)].

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Posted in General, Scott Railton |

L-1 Pilot Program Coming to Peace Arch and Pacific Highway Crossings

Thursday, March 29th, 2018 by W. Scott Railton

The Peace Arch and Pacific Highway Crossing in Blaine, Washington are implementing a “Pilot Program” for L-1 Intracompany Transfer petitions, beginning on or about April 30th. L-1 Intracompany transfers are employees who are Executives, Managers, or employees with specialized knowledge who are transferred from a commonly owned foreign company to a U.S. company. For decades, Canadian beneficiaries of L-1 petitions have been permitted to submit their applications at Class A Port of Entries, and receive immediate adjudication. The Pilot Program, while introduced with promises of efficiencies, threatens a long-standing benefit for Canadian businesses.

On Monday, I attended a briefing session on a Form I-129 Pilot Program for Canadian L Nonimmigrants Pilot Program, held at the Peace Arch. The briefing was hosted jointly by U.S. Customs and Border Protection and U.S. Citizenship and Immigration Services, and was led principally by USCIS Director L. Francis Cissna. The meeting was attended by more than a dozen officials of CBP, USCIS, and about ten attorneys representing stakeholders. The meeting was open to phone participants as well.

Director Cissna said that the stated intention of the L Pilot Program is to try to move Port of Entry adjudications out of CBP’s hands and into USCIS’s hands. Director Cissna views this work as USCIS work, since it involves immigration benefits. CBP doesn’t seem happy with the function (my observation), as they consider themselves an enforcement agency first and foremost. There were indications that if the Pilot Program works, perhaps TN adjudications can be handled on the same process.

Under the Pilot Program, the petitioning company will send the petition to USCIS with a special cover sheet. USCIS will then try to adjudicate the applications with the cover sheet “super fast…faster than premium processing,” in an effort to provide adjudication service similar to what is now available at the Port of Entry for Canadians. Approvals and Requests for Evidence will be sent to employers directly. While USCIS says it would be best to wait for the approval, Applicants can go down to the Port of Entry with just a receipt notice, and granted admission if the matter is adjudicated favorably. This was all described as “good organizational management.”

The goal is to launch the program at the Peace Arch and the Pacific Highway by April 30th, and then test run the program for 6 months. If it works, they’ll look at expansion to other northern ports of entry, and may need to commence the public notice and comment processes required under the Administrative Procedures Act.

The Pilot Program is exclusive to Blaine, and so Canadian applicants who want immediate Port of Entry adjudication may still go to other Port of Entries. The process will be mandatory for Canadians at the Peace Arch and Pacific Highway. The process includes L blankets. The California Service Center is the designated USCIS service center for adjudication.

Some interesting statistics were mentioned during the meeting. We were told there are about 6200 Canadian L petitions submitted each year, which is about one-sixth of the overall total. The Blaine POEs are not handling too many per week now. One person said about half a dozen; another said about 50 per month. Issues raised by attorneys included the Request for Evidence rate at the USCIS Service Centers, which is very high; as well as the benefit from instant adjudication at the Port of Entry v. the issues in presenting a petition there sometimes.

This could end up being a step back for Canadian businesses who may clearly qualify and benefit from on-the-spot adjudication. There was a time when port of entry adjudication was a pretty quick process, and this method of application really helped Canadian businesses quickly get the people they need into the U.S. temporarily. USCIS has created a whole lot of red tape for legitimate businesses in recent years, and this presents another opportunity for government delays. A more favorable view of the program is that this allows pre-adjudication by USCIS of petitions, at a rate faster than Premium Processing’s fee based 15 day guarantee.

If its not obvious, I am skeptical about the Pilot Program. In the big picture, this Administration is taking every step it can to cut legal immigration, in addition to its focus on illegal immigration. There are some in the Administration who only want to “put a pause” on immigration, and seem to have decided that most if not all immigration is bad. The L visa is a poor target, as the visa is dedicated to executives and managers—people who typically create jobs, which leads to a healthier U.S. economy.

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Posted in General, Scott Railton |

Mission Canada Makes Administrative Changes to E Visa Process

Saturday, December 16th, 2017 by W. Scott Railton

Every so often, Consulates change their administrative procedures for handling E-1 Trader and E-2 Investor Visas. Mission Canada recently announced certain changes, effective December 5th, 2017. Most notably, initial applications will be reviewed during a ten business day period, after which an interview may be scheduled. It is possible that this change may slow down the actual processing timeline, but time will tell.

Here’s the message from Mission Canada:

We are pleased to inform you that our unit has implemented a new, streamlined E-visa application process for first time E visa applicants and applicants renewing their E visas. Our new online appointment system, processing change will allow us to receive and review E-visa applications before the applicant schedules an in-person interview (as opposed to the old system, which permitted applicants to schedule an appointment before submitting an application or supporting documentation). We anticipate that the new system will speed up processing time and help us provide better customer service to you and your clients.

Under the new system, E-visa applications will be sorted into two processing streams based on the time needed to review the required documentation.

• New Cases and Renewals – First-time applicants and those wishing to renew the registration status of their E-visa company will be offered a “deferred interview” appointment. While applicants will still need to first create an appointment profile and pay the required visa application fee online at https://ais.usvisa-info.com, the interview will be deferred until applicants have electronically submitted their application and supporting documents to the U.S. Consulate in Toronto via evisacanada@state.gov. Once their application has been reviewed, which requires at least 10 business days, we will send applicants instructions on how to make an appointment for an in-person interview. Applicants will be unable to schedule an appointment until then. Only applications in the queue for “New Cases and Renewals” will be considered for company registration or re-registration.

• Employees of Registered Companies and Dependents – Employees of currently registered E-visa companies, and qualifying family members of current E-visa holders, may schedule the next available appointment in Calgary, Montreal, Ottawa, Vancouver or Toronto.

For more information please visit our website listed below:

https://ca.usembassy.gov/visas/treaty-trader-and-investor-visas/

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Posted in General, Scott Railton |

Increase in Expedited Removals at the Northern Border

Friday, December 8th, 2017 by W. Scott Railton

We are seeing an increase in expedited removals at the border in recent months. This is to be expected, based on the Trump Administration’s Executive Orders on immigration and the subsequent memos issued by the Department of Homeland Security on implementing these orders.

Expedited removal is authorized under section 235 of the Immigration and Nationality Act. If an officer determines a person has made a material misrepresentation, claimed citizenship falsely, or doesn’t have the appropriate documentation to enter the U.S., an expedited removal may be effectuated. Typically, we’re seeing a five year ban applied

Expedited removal usually occurs after a lengthy interview with multiple officers in secondary inspection. We’ve heard of persons interviewed on and off for four to eight hours, though eight would be unusual.

Electronic searches of phones and computers are increasingly a part of the inspection. Officers will ask questions and look for contradictions. Often, we see statements where people admit to misrepresentations, offered originally in hopes of more easily gaining entry.

Sometimes expedited removals are issued because the agency finds the applicant for admission to be an immigrant without an immigrant visa. This type of determination often happens when they learn someone has been working without authorization in the United States, or the person is seeking admission so that they can live with their spouse, perhaps with the expressed intent of “squaring away” their immigration papers later.

Expedited removal orders are tough to overturn.

The statute expressly makes the determinations beyond judicial review—that means you cannot go to court and get a judge to change the decision. Sometimes, if the order in manifestly incorrect or unfair, it is possible to take the issue up with a supervisor after the fact. Otherwise, the best available path is waivers.

The waiver process varies based on several factors, and can be complicated, lengthy, and expensive. In a nutshell, the availability of waivers depends on if permanent residence is sought, or something less permanent. Procedurally, there are differences in process for Canadians and non-Canadians. Anyone with an expedited removal order should not approach the border without legal advice and obtaining consent to reapply for admission first, as there is risk of criminal penalty.

Recovering from an expedited removal order can take time. Each case is different. We are of course available to advise on expedited removals and similar border issues, and have been doing so for many years.

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Posted in General, Scott Railton |

Staying Admissible To The United States

Friday, July 28th, 2017 by W. Scott Railton

We frequently meet with Canadians and other nationals who are concerned about their admissibility to the United States. We also advise Canadian defense attorneys about the consequences of a plea or conviction on United States admissibility. Frequently, persons arrive at the border, seeking entry, only to learn that they are inadmissible (or so the government says), and that they will need a waiver.

Here are some tips on admissibility issues, from my perspective as an immigration attorney:

1. Foreign pardons and expungements do not typically help with U.S. immigration. A conviction vacated for substantive reasons might overcome inadmissibility.

2. The sealing of criminal records can present an obstacle for U.S. immigration purposes, as the burden of proof for admissibility is upon the applicant. The U.S. government will want to see those records, even if they’re under seal.

3. Temporary visitor waivers are available, but they are costly and take months to adjudicate, and must be renewed every five years. Permanent waivers for immigrants are more challenging, but are sometimes available, depending on the past offense.

4. The definition of a conviction under U.S. immigration law includes more than just convictions. Admissions of guilt in the record may count too.

5. Any conviction “related to” controlled substances is a basis for inadmissibility. U.S. immigration law is particularly hard on all controlled substances issues. Marijuana is still considered a controlled substance under federal (national) law, even though many states have legalized.

6. Drug abuse, drug addiction, and alcohol abuse are bases for inadmissibility without a conviction. When applicable, the U.S. Government may require an expert opinion from a U.S. authorized civil surgeon on whether a person is a drug or alcohol abuser prior to admission to the United States.

7. A person is inadmissible if the government has a “reason to believe” that she is or has been a drug trafficker.

8. In general, sentences of less than a year are better (e.g. 364 days or less) to avoid the possibility of having a conviction deemed an “aggravated felony” under U.S. immigration law.

9. Misrepresentation at the border is a basis for a lifetime ban from the U.S. They may search the phone or computer, interview friends and employers, and otherwise double-check to see if someone is lying. Lifetime ban if they make that determination, which in time can be overcome through the waiver process.

10. The U.S. law on inadmissibility is a complicated area of law even for U.S. lawyers, including U.S. immigration lawyers. If there are concerns, it is best to consult with us, or someone like us. If worse comes to worse, it may be better to stop answering questions, and ask to withdraw the application for admission.

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Posted in General, Scott Railton |

Marijuana and the Border

Friday, April 21st, 2017 by W. Scott Railton

Today is April 20th, or 4-20, as marijuana legalization proponents like to say. More than half of the states have passed some form of legalization, usually by popular vote. Eight states have legalized recreational marijuana, again by popular vote. It is an astounding development in my lifetime, as the concept of legalization was quite radical little more than two decades ago.

I’ve been interested in how state legalization impacts noncitizens, since immigration is my area of law practice. Washington State and Colorado were the first to legalize recreational marijuana, back in 2012, and I knew this would present issues at the border, eventually. It seems now the issues are also coming up at U.S. Citizenship and Immigration Services and the Department of State’s consulates abroad.

I periodically speak and write on this topic.  I am very pleased to say that this month the American Bar Association published an article I wrote, entitled “Marijuana and Immigration,” in its Criminal Justice magazine. I also received a Freedom of Information Act request back this past week, from USCIS, on its policies concerning legalized marijuana. The pdf is over 1700 pages, but 1500 pages or so are redacted. We will appeal.

The issues continue to develop, and, unfortunately, most of the news is not good for noncitizens. DHS Secretary Kelly and Attorney General Sessions say they want to crack down on marijuana. The specifics are lacking, but I am hearing some tough reports. These include:

-Adjustment of status applications being denied for spouses of U.S. citizens, because they worked for marijuana dispensary in a marijuana-legal state.

-Naturalization application denied to a permanent resident of over 10 years, because they worked in the marijuana industry in Colorado, a fully legalized state

-Denial of entry in many cases to the U.S., for admitting to having used marijuana at some undisclosed point in the past, in a foreign or U.S. jurisdiction where it was known to be illegal. No conviction is required–just a voluntary admission to a border officer, medical examiner, consular official, or other government worker. A lot of people, including former presidents, have admitted to as much in the past, and publicly. Once denied admission, a waiver must be obtained from CBP’s Admissibility Review Office, for life. Canadians have a $585 filing fee. The waiver takes months to adjudicate.

-More bad news: reportedly, they are not necessarily going to grant the waiver. We’ve just started to hear of denials for these types of circumstances.

-Also, the word on the west coast is the local ports of entry will not admit anyone working in the industry. Of course, this means accountants, who may also have other non-marijuana clients; scientists who need to test products; architects for greenhouses; and the list of professionals can go on. This is of course a multi-million dollar industry, which indeed, pays taxes, even if the standard deductions aren’t available.

-I don’t expect Consulates to issue investor visas for the industry.

The federal government is anything but transparent on these issues. The state governments need to get vocal, and force the issues, so that travel and business can be predictable. Legislators in legalized states need to fight for these businesses and opportunities, because right now at the administrative level, things are not going well for the industry or noncitizens. There is a basic lack of justice and fairness, as persons think they are ok by being truthful and are in compliance with state laws, but the federal government is playing “gotcha” with good people.

 

 

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Posted in General, Scott Railton |

Second Monday in October: Lots to Celebrate

Monday, October 24th, 2016 by Abtin Bahador

The second Monday in October means many things to many people.

In Canada, it is a day for turkey, and explaining to your American friends on social media that Canada has its own Thanksgiving. In America, it depends on what part of the country you reside. Some places continue to celebrate Columbus Day, while other parts of the U.S., including Washington State, are increasingly celebrating Indigenous Peoples’ Day.

In 2015, the Bellingham city council officially declared the second Monday in October as Coast Salish Day. The Coast Salish people are a grouping of many tribes with numerous distinct cultures and languages. Their traditional territories included metropolitan areas including Victoria, Vancouver, and Seattle. Territory claimed by the Coast Salish peoples spanned from Vancouver Island, most of Puget Sound and the Olympic Peninsula and as far south as Oregon.

With the colonization of the Americas, the British and American governments enacted arbitrary borders, and separated many indigenous people from their ancestral lands. The U.S. and British recognized that Native Americans had been separated by the newly created border, and negotiated the Jay Treaty in part to mitigate tensions with Native peoples whose lands were bisected by the recently established borders.

Article III of the Jay Treaty thus gave native peoples the right to freely access the United States. This provision of the Jay Treaty has been included in the U.S. and Immigration Nationality Act at §289:

“Nothing in this title shall be construed to affect the right of American Indians born in Canada to pass the borders of the United States, but such right shall extend only to persons who possess at least 50 per centum of blood of the American Indian race.”

Fundamentally, this passage in the complex maze of U.S. immigration law entitles Canadians, with at least 50% native bloodline, privileges to enter and remain in the United States, virtually unrestricted by U.S. immigration laws.

For a more in-depth review of this fascinating provision of immigration law, Please see “American Indians Born in Canada and the Right of Free Access to the United States” co-authored by Greg Boos of Cascadia Cross-Border Law. The article can be accessed at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2334394 andwww.jaytreaty.com.

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Immigration and the Legalization of Marijuana in Washington State and Colorado

Tuesday, December 17th, 2013 by W. Scott Railton

Washington State voters passed Initiative 502 in 2012, legalizing the use of marijuana products for adults 21 and over. Colorado voters approved Amendment 64 to its Constitution in 2012. These interesting developments have received widespread media attention. In turn, we’ve been getting a lot of questions on how these laws will impact U.S. immigration and the border, since marijuana possession and other related offenses are still illegal under federal law. In fact, I was recently quoted in a Canadian Press article on this subject, and then interviewed on Vancouver’s CKNW’s morning show (Listen to the full interview below).

Beware. There are plenty of reasons to believe that federal law will continue to trump state law when it comes to immigration and marijuana, at least in the short term. Marijuana continues to be listed as a controlled substance under the U.S.’s Controlled Substances Act, and the illegal use of controlled substances continues to be prohibited under the U.S. Immigration and Nationality Act. Initial indications from U.S. Customs and Border Protection are that the officers at the border will continue to enforce the federal laws over Washington and Colorado’s experiments in legalization.

Immigration and marijuana don’t mix well. U.S. immigration law is particularly strict in regards to narcotics, and there is a long history of federal cases related to marijuana use. Probably the most famous case was in 1973 when John Lennon was ordered to be deported for a past marijuana conviction in England. He won that case, but only after a long court battle. The cause of deportation order was supposedly a pretext for Lennon’s removal, as his activist efforts were unpopular in certain quarters. In 2006, the battle was memorialized in the movie The U.S. v. John Lennon.

Under current law, a person can be found inadmissible to the United States for (1) a conviction related to marijuana, (2) for simply admitting to committing the essential elements of any marijuana related offense; (3) for reason to believe a person is trafficker of controlled substances; (4) or for being a drug abuser.  This is a non-exhaustive list, but it is particularly noteworthy that a conviction isn’t required to bar admission. Once a person is deemed inadmissible, they’ll likely need to seek a waiver, which is expensive and time-consuming to obtain.

Conversations with border officers may go down any number of ways, and of course will be steered by the officers. Some may take an interest in the issue, and some may not. There is always a human element involved when seeking admission. However, lying to a border officer can have serious consequences, as misrepresentation is a basis for inadmissibility and immediate expedited removal.

Now, if an officer at the border knows that a person intends to engage in a violation of the Controlled Substances Act, they can find that person inadmissible at that time, for seeking to enter for an illegitimate purpose. Such a finding would not necessarily necessitate future waivers, though it could, if, for example, the agency decided to require a person to prove they are not a drug abuser. Hopefully U.S. Customs and Border Protection adopts a transparent and uniform approach, as these state laws are sure to confuse people.

Other issues are bound to come up too. For example, a violation of the Controlled Substances Act could impact all sorts of future immigration-related applications, such as trusted traveler applications (e.g. NEXUS), permanent residence applications, and naturalization applications. Foreign investors risk running afoul federal controlled substance trafficking laws if they get involved in financing marijuana businesses. This in turn could have serious immigration implications for both the investors and their families.

Time will tell how this all plays out. The U.S. Attorney General has issued at least three separate memos to its attorneys on how to address state legalization of marijuana cases in the medical and recreational contexts. In brief, these memos encourage prosecutorial discretion in certain circumstances, but by no means cede federal authority over marijuana-related activities. The federal government has on occasion and recently closed some medical marijuana dispensaries and grow operations in Washington State and Colorado, and so it is clearly not turning a blind eye.

For the time being, better safe than sorry seems to be the most advisable policy for noncitizens in relation to these new state legalization laws.

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Canadians Can Now File New TN Petitions With USCIS

Tuesday, October 2nd, 2012 by W. Scott Railton

The Department of Homeland Security announced today that it will henceforth accept new TN applications from Canadians via mail or courier to U.S. Citizenship & Immigration Services (USCIS). This is a significant change in administrative procedure from the former requirement that all new TN petitions be filed at a Port Of Entry or through Pre-Flight Inspection with U.S. Customs and Border Protection (USCBP).

TNs are Treaty-NAFTA nonimmigrant work authorizations, allowing certain Canadian and Mexican professionals to work in the United States for U.S. employers under certain conditions. TN status may be granted up to three years, and is renewable. For more on the category, click here.

This change in procedure is really good news for applicants, and may end up adding some predictability to the adjudication process. Before this announcement, applicants had no other option than to arrive at port of entry with the intention of working in the U.S., with the final say going to a line officer at U.S. Customs and Border Protection. Occasionally, disappointment for employer and employee would follow.  Now, employers have the option of petitioning for their employees in advance, thereby determining whether or not there will be any issues far ahead of actually traveling to the United States.

Further, USCIS will likely issue Requests for Evidence if there is an issue with the case, allowing the petitioner and employee an opportunity to respond in due time, rather than be turned around as this case with a border application.  While the administrative hoop of a Request for Evidence is burdensome, the process requires the agency to articulate its demands and gives a fair and non-disruptive manner to the petitioner to respond.

The cost of filing initially through USCIS will be higher, as an I-129 is required and the filing fee for this is $325. The cost of filing at the border is $50 plus $6 for an I-94. There will be cases though where the added cost will be worth the predictability that the process through USCIS brings.

With this expansion in adjudicative policy, there will be some cases where it will clearly be a strategic decision on whether to file with USCIS at a higher cost and with a lengthier adjudication process, or file at a port of entry with USCBP. USCBP is primarily an enforcement agency, while USCIS is primarily vested with responsibility for immigration benefits. This distinction in agency missions needs to be considered sometimes when choosing the best “forum” for an adjudication.

The change in policy is a result of the Beyond The Border agreement between Canada and the United States. More administrative changes in border practice are forthcoming.

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BC Speaking Engagement: The Effect of a Canadian Criminal Proceeding on Ability to Enter the U.S.

Tuesday, February 7th, 2012 by W. Scott Railton

On February 11, 2012, I am honored to speak at a Continuing Legal Education Society of British Columbia program in Vancouver. The program is entitled “Civil Law for Criminal Lawyers,” and I will be presenting on the effect of a Canadian criminal proceeding on a person’s ability to enter the United States.

In brief, any type of criminal proceeding can have an effect on a person’s ability to enter the United States, even if that proceeding does not end with a conviction. The U.S. places the burden of proof of admissibility on applicants for admission, and so frequently CBP officers will request to review court records to make their own determination on whether an applicant is admissible. Criminal defense attorneys in and outside the United States should consider the U.S. immigration consequences of criminal activity early on in the representation, if traveling to the U.S. is a client concern. Post conviction relief is very limited after a person is convicted. The U.S. immigration laws do not typically recognize Canadian pardons.

My presentation will lay out the law in more technical terms than this, and will at some length discuss various bases of inadmissibility, such as crimes involving moral turpitude, crimes involving controlled substances, and certain forms of conduct that do not even require a conviction to create a basis for inadmissibility. I will conclude by discussing the various forms of waivers that may be available.

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