Question:

Dear SRW Border lawyers,

I entered the United States in F-1 status to attend college in California. During my first semester I was arrested and charged with possession of a controlled substance. The controlled substance was not mine, but since it was found in my car I was charged with possessing it.  During the criminal proceeding, I was represented by a public defender who was unaware of immigration law and how a criminal conviction would affect my immigration status. In fact, I was told on several occasions that if I were to pled guilty to a misdemeanor the conviction would not affect my immigration status. Taking the advice of my lawyer, I pled guilty to a misdemeanor. I was under the impression that entering a plea and paying a small fine would put an end to my situation.

Several months later, I returned home (Sweden) during Christmas break. When I tried to return to the United States to continue my classes, Customs and Border Protection (“CBP”) denied me entry due to my conviction. After I explained the situation surrounding my conviction CBP paroled me into the country for one (1) year. I finished up my spring semester and then returned home to Sweden again for summer vacation. Unfortunately, I did not realize that my parole was only a one-time entry. So, when I tried to enter the United States again to begin the new school year, I was denied because of my conviction.

My school has been very understanding with my situation, but I was recently informed by school administrators that I must take my final exams in-person, or I will have to withdraw from all of my classes and lose an entire semester worth of class credit.  How can I enter the United States? I do not want to lose an entire semester of classes.

Answer:

Thank you for contacting the SRW Border Team. As you already know, you are inadmissible due to your criminal conviction. Pursuant to INA § 212(a)(2)(A)(II), “any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance is inadmissible.

That being said, and with only a limited understanding of the facts of your case, you may have some options available to return to the United States to finish your schooling.

Parole

Despite you inadmissibility, you may be able to parole into the country for a period of time long enough to take your exams. Parole is a legal fiction that CBP uses to allow individuals to enter the United States for a specific purpose and period of time without actually “admitting” them. Parole is generally used in situations where there is a strong humanitarian or business need, however, an experienced immigration lawyer may be able to develop and present a persuasive case to CBP to allow for the discretionary authorization of parole. You should also be aware that your parole will more than likely be a one-time entry only, which means that once you enter the country, you will not be able to return if you depart prior to the expiration of your parole.

Vacate Criminal Conviction

While we only have the information you provided in your email, you may be able to vacate your criminal conviction. Based on your email, it appears that throughout the criminal proceeding you were not properly apprised of the immigration consequences of your plea agreement. Vacating the conviction would essentially clear your record and remove your inadmissibility. While our office does not handle criminal matters, we have a network of experienced criminal lawyers that we will put you in contact with and then work closely with that lawyer to resolve your immigration matter.

If you are not able to vacate the criminal conviction, you will likely need to apply for a non-immigrant waiver through the U.S. Consulate in Sweden, in conjunction with your application for a new F-1 visa.  For more information about this non-immigrant waiver process through the Consulate, please click here. 

We hope the above information was helpful. We look forward to speaking with you through our detailed consultation process and helping you through this stressful time.