Criminal Defense of Immigrants
§ 12.34 (B)
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(B) Family Members. Congress recently created a new ground of inadmissibility to exclude family members of drug traffickers who are inadmissible under the “reason to believe” ground. See § 21.7, infra. Now, their spouses and children who knowingly obtained “financial or other benefit from the illicit activity” within the previous five years are also inadmissible. This ground, like its analogue, is based on conduct, so no conviction of any offense is necessary to trigger its application. It was signed into law on December 3, 1999, and applies to admissibility decisions made after that date. Counsel can argue this statute should not be made applicable retroactively to conduct occurring before its passage, based on the presumption of nonretroactivity generally applicable to federal legislation. The standard of proof of this ground of inadmissibility is defined by the same language as the pre-existing “reason to believe” ground. Therefore, the same legal standard should apply here as well: Any finding of inadmissibility must be based on “reasonable, substantial, and probative evidence.” The DHS or immigration court’s knowledge or reasonable belief that an individual has trafficked in drugs must be based on “credible evidence.”
The new ground does not apply except in cases in which a noncitizen is directly inadmissible under the pre-existing “reason to believe” ground. Thus, any defenses the suspected drug trafficker may have will, if successful, preclude a finding of inadmissibility of family members under the companion ground, which applies only against spouses and children of the drug trafficker. It has no application against other relatives, or against nonrelatives. It is an open question whether a divorce or other non-married status will defeat application of this harsh provision. Certainly, the unfairness of finding inadmissible an ex-spouse, along with his or her spouse, seems considerable. Because the culpability of the family member may be relatively minor, this statute should be interpreted to exclude anyone who is not, in fact, presently married to the suspected drug trafficker at the time the admissibility decision is made. Moreover, stepchildren should be excluded from application of this harsh law as well, unless they have been legally adopted by the drug trafficker.
The statute applies only where the spouse or child obtained the benefit “within the previous 5 years . . . .” There is no clock-stopping provision. The plain language clearly means “within five years immediately before the present time,” and the present time is a moving target. After five years has elapsed after the family member has obtained the illicit benefit, s/he is no longer inadmissible.
The DHS must establish that the family member has actually obtained a “financial or other benefit” from the illicit activity in order to trigger inadmissibility. It may be difficult for the Service to link the particular proceeds from the drug trafficking directly to the noncitizen spouse or child by reasonable, substantial, credible, and probative evidence. The DHS must also establish that the spouse or child knew or reasonably should have known the benefit was the product of the illicit activity.
Given the fact that this new ground of inadmissibility penalizes relatively innocent family members of a suspected drug trafficker, it should be construed narrowly.
 New INA § 212(a)(2)(C)(ii), 8 U.S.C. § 1182(a)(2)(C)(ii) has been added making inadmissible the “spouse, son, or daughter of an alien inadmissible under clause (i), [who] has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity . . . .” Intelligence Authorization Act for Fiscal Year 2000, Pub. Law 106-120 (December 3, 1999).
 Former INA § 212(a)(2)(C), 8 U.S.C. § 1182(a)(2)(C), has been renumbered as INA § x212(a)(2)(C)(i), 8 U.S.C. § 1182(a)(2)(C)(i).
 “Child” is defined in 8 U.S.C. § 1101(b)(1) for purposes of determining admissibility.
 See INS v. St. Cyr, 533 U.S. 289 (2001) (legislation abolishing INA § 212(c) relief is not retroactively applicable to guilty pleas entered prior to its effective date); Hughes Aircraft Co. v. United States, 520 U.S. 939, 946 (1997) (“There is a presumption against retroactive legislation [that] is deeply rooted in our jurisprudence. The principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.” [internal citations omitted]); Aragon-Ayon v. INS, 206 F.3d 847 (9th Cir. 2000) (Congress’ clearly expressed intention to make the aggravated-felony deportation ground retroactive sufficient to overcome the presumption against retroactive legislation).
 Matter of Rico, 16 I. & N. Dec. 181, 185 (BIA 1977).
 Castano v. INS, 956 F.2d 236, 238 (11th Cir. 1992).
 Pichardo v. INS, 188 F.3d 1079 (9th Cir. 1999), citing Nunez-Payan v. INS, 811 F.2d 264, 267 (5th Cir. 1987).