Does Melky Cabrera have an immigration problem?

Last week, Major League Baseball suspended San Francisco Giants outfielder Melky Cabrera for fifty games after he tested positive for having elevated levels of testosterone in his blood.  Such abnormal levels are strong indicators of the use of synthetic testosterone, which, apparently, enhances athletic prowess.  Well, you can’t say that it did not work.  Cabrera, a journeyman, was having a career season, leading MLB in hits, winning the Most Valuable Player in the All-Star Game, and leading the Giants to the top of the NL West.  He was on track to sign a huge contract in the off-season and it is reasonable to state that this failed drug test cost Melky tens of millions of dollars.  Since redemption is always available in sports (See Vick, Michael), Melky will get picked up in the off-season and make a big league club.  That is, if he is allowed to remain in the U.S.

ESPN analyst and noted legal analyst Rick Sutcliffe said today, “”You know, it makes you mad. First of all, this guy is over here in the United States on a working visa. He broke the law. What’s he doing still here?  I mean, forget the 50-game suspension from baseball and whether he can come back if they make the players [sic] or not. Why’s he still here? That visa should be taken away, and he should not be allowed to play over here again, or work over here again, in my opinion.”  Ah, Rick, why don’t you pitch and you let us handle the immigration law, OK?  There is so much wrong with this, that it is hard to know where to begin, but we’re adventurous, so let’s give it a shot.  First, it is not at all clear that Melky broke the law.  Melky failed a drug test imposed by his employer. He still remains employed, which is key to whichever temporary visa Melky may be on.  Now, certainly, drug offenses are treated seriously under the immigration laws.  What is important, however, in determining whether someone should be deported, are convictions.  And Melky has not been convicted of any offense.  He has not even been charged.  It is not even clear that the drug he used is illegal.  I see adds for products designed to help men with “low T.”  I’m pretty sure that it is not necessarily illegal to take testosterone, but it does stop you from playing major league baseball for a while.  Second, even if Melky were to be charged with deportability, he would be entitled to a hearing on his removal in immigration court.  The average time it takes to have a case fully heard in the San Francisco immigration court is 558 days.  It would take a long time to deport Melky Cabrera if he were deportable.

But, what if Melky went home to the Dominican Republic to serve out his suspension?  He might have a real hard time entering the U.S.  Perhaps, we did not give Mr. Sutcliffe enough credit?  There are different rules for who may enter the U.S. than for who can be deported from the U.S.  Why?  Who knows? But that is how it is.  An individual may be inadmissible (ineligible to enter) to the U.S. if they have admitted committing a violation of any law or regulation of a state, the United States or a foreign country relating to a controlled substance.  Whoa!  A person can be ineligible to enter if they admit using an illegal drug.  No conviction necessary.  Assuming that the drug Melky used is illegal, has Melky already admitted using a drug?  Has he rendered himself inadmissible?  Possibly.  And if he has not, what happens if he goes to the Embassy in Santo Domingo and he gets asked about it?  Will he admit it then?  What about when he lands in the U.S.?  Perhaps Melky ought not to fly into the U.S. through L.A., with all its Dodger fans, where he can expect to be questioned at length.

Also, what if it is reported (accurately or not, it does not really matter) that Melky shared his synthetic testosterone with another player?  Does this make Melky a drug trafficker?  Hope not, because the Immigration & Nationality Act renders anyone who a consular officer or customs official has reason to believe is a drug trafficker inadmissible to the U.S.  Put reason to believe together with the doctrine of consular non-reviewability, which prohibits courts from looking at the decisions of consular officers, and you have a situation where Melky could be permanently banned from the U.S. without any review of that decision.  All it could take is a report in the newspaper that could give a consular officer reason to believe.   Hope, for Melky’s sake, that no LA Times reporters are reading.

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