Criminal Defense of Immigrants

 

(A)  Drug Traffickers.  A person, including a juvenile, is inadmissible if the INS has “reason to believe” that s/he is or has been a drug trafficker.[245]  No waiver is available for this ground of inadmissibility.  See § 21.6, infra.

 

This is true even if the person has not been convicted of a criminal offense.[246]  Courts have held that juveniles, though not convicted of a crime for immigration purposes, can still be excluded as inadmissible on the reason to believe drug trafficking ground.[247] 

 

If the juvenile applies in immigration court for some relief, s/he must admit the arrest.  The DHS can refuse to grant the relief unless the juvenile supplies the police report, and then declare, after reading the report, that it has “reason to believe” the client was an “illicit trafficker.”

 

There is an argument that reason to believe a juvenile was a drug trafficker does not constitute reason to believe s/he was engaged in “illicit trafficking,” since “illicit” means “criminal,” and the juvenile was not guilty of a crime, merely an act of juvenile delinquency.[248]

 

Criminal defense counsel, however, must assume that this conduct-based ground of inadmissibility will apply to juveniles.  The juvenile defender can attempt to arrange a non-trafficking disposition and hope the immigration authorities will not ask for the reports. 

 

Immigration counsel can argue that admission of a crime that would have been prosecuted in juvenile court cannot qualify as an admission, or be equivalent to a conviction, of a crime of moral turpitude or drug offense so as to trigger inadmissibility, since it would not have resulted in a conviction of a crime, but merely an adjudication of an act of juvenile delinquency, which does not trigger inadmissibility under the statute.  See § § 12.30, 12.32, supra.

 

In the context of admitting the elements of a crime involving moral turpitude, the BIA did not treat as an inadmissible offense an adult’s admission to perjury committed as a juvenile.[249]  As the BIA stated: “The charge that the respondent admits the commission of a crime involving moral turpitude cannot be sustained.  The California Juvenile Court Law (General Laws of California, title 290, act 3966, section 6 -- approved June 5, 1915), in effect at the time the respondent committed the offense in question, provides that the Juvenile Court have jurisdiction of persons under the age of 18 years.  Since the respondent was only about 15 years of age at the time of the theft, at most, he could only have been found guilty of an act of juvenile delinquency.  It therefore follows that the admission of the offense contained in the record was not admission of a crime, but an admission of juvenile delinquency for which he would not be deportable (In

re: AA, 56038/313, August 7, 1943).”[250]

 

                For example, a British citizen was convicted, with her husband, of cultivation of marijuana.  The conviction was vacated, and the charges dismissed in the interest of justice.  The client, however, was applying for a green card, and needed to avoid inadmissibility.  Criminal counsel was able to suggest to immigration counsel various factual arguments that she was indeed innocent of any trafficking, there was no evidence that she or her husband had ever actually sold any marijuana, it was his enterprise in any event, she had nothing to do with it, and the like, that could be used in arguing that there was not, indeed, any “reason to believe” that she had ever been a drug trafficker.

 

                Criminal cases concerning probable cause to arrest for drug trafficking offenses may have some relevance to the standard of proof sufficient to constitute reason to believe.[251]

[245] INA § 241(a)(2)(A)(iv), 8 U.S.C. § 1182(a)(2)(A)(iv).  (“Any alien who the consular officer or the Attorney General knows or has reason to believe -- (i) is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 802 of title 21), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so . . . is inadmissible.” INA § 212(a)(2)(C)(i), 8 U.S.C. § 1182(a)(2)(C)(i)).  See Appendix E, section [6], infra.

[246] Matter of Favela, 16 I. & N. Dec. 753 (BIA 1979) (juvenile noncitizen convicted under the Federal Youth Corrections Act of a drug trafficking offense, after expungement rendered the conviction itself of no immigration consequence, could still be excluded under the reason to believe illicit trafficking ground of inadmissibility based on the facts underlying the expunged conviction); cf. Castano v. INS, 956 F.2d 236 (11th Cir. 1992) (facts underlying a drug trafficking conviction, which had been expunged under the former Federal Youth Corrections Act rendering the conviction irrelevant to admissibility, could still be used to exclude a noncitizen under the reason to believe illicit drug trafficking ground of inadmissibility).

[247] Matter of Favela, 16 I. & N. Dec. 753 (BIA 1979) (juvenile alien convicted under the Federal Youth Corrections Act of a drug trafficking offense, after expungement rendered the conviction itself of no immigration consequence, could still be excluded under the reason to believe illicit trafficking ground of inadmissibility based on the facts underlying the expunged conviction); cf. Castano v. INS, 956 F.2d 236 (11th Cir. 1992) (facts underlying a drug trafficking conviction, which had been expunged under the former Federal Youth Corrections Act rendering the conviction irrelevant to admissibility, could still be used to exclude a noncitizen under the reason to believe illicit drug trafficking ground of inadmissibility).

[248] See Matter of MU, 2 I. & N. Dec. 92 (BIA 1944).

[249] Matter of F, 4 I. & N. Dec. 726 (BIA 1952).

[250] Matter of MU, 2 I. & N. Dec. 52 (BIA 1944).

[251] Maryland v. Pringle, 540 U.S. 366 (2003) (probable cause to arrest all occupants of vehicle may arise upon observation of large amount of money in common area of vehicle and lawful search of vehicle resulting in finding narcotics in common area of vehicle).