Criminal Defense of Immigrants

(A)        Elements.  The elements of this ground are that:

(1)       an officer of the Department of State or Department of Homeland Security;

(2)       has reason to believe;

(3)       the noncitizen seeking admission to the United States;

(4)       is or has been an illicit trafficker;

(5)       in any controlled substance or chemical as defined by federal law; or

(6)       is or has been a knowing aider, abettor, assister, conspirator, or colluder in the illicit trafficking of any controlled substance or chemical as defined by federal law.

“Illicit trafficking” for the purposes of this ground requires that the noncitizen was a knowing and conscious participant or conduit in the transfer, passage or delivery of a controlled substance.  This includes distribution without remuneration, as well as sale.[37]  A single incident is sufficient.[38]  However, simple possession, being under the influence and transportation for personal use are not considered “trafficking” for purposes of this ground.[39]  The noncitizen must have intended to traffic in a controlled substance.[40]  The government’s “reason to believe” may be based upon activities that occurred either in the United States or abroad.  

                Once a noncitizen has been lawfully admitted to the United States, this ground no longer applies.  There is no parallel “reason to believe” ground of deportation.  Additionally, the “reason to believe” ground is triggered only if the immigration authorities develop “reason to believe” prior to the noncitizen’s official, lawful admission to the United States.[41]  Therefore, if immigration authorities develop a “reason to believe” only after the noncitizen has been admitted, the immigration authorities cannot charge the noncitizen with being deportable on grounds of being inadmissible at the time of the original lawful admission.[42]

                The “knowing assister, abettor, conspirator, or colluder with others” language was added to this ground effective Nov. 29, 1990.[43]  Counsel can therefore argue that this language only applies to conduct occurring after that date.

[37] Matter of RH, 7 I. & N. Dec. 675 (BIA 1958); Matter of Martinez-Gomez, 14 I. & N. Dec. 104 (BIA 1972).

[38] Matter of Rico, 16 I. & N. Dec. 181 (BIA 1977); Matter of P, 5 I. & N. Dec. 190 (BIA 1953).

[39] Matter of McDonald and Brewster, 15 I. & N. Dec.  Dec. 203, 204 (BIA 1975).

[40] Matter of Rico, 16 I. & N. Dec. at 186; Matter of Favela, 16 I. & N. Dec. 753, 755 (1979) (upholding the IJ’s finding that the alien was a “conscious participant” in an attempt to smuggle drugs into the United States and thereby excludable under section 212(a)(23)).  See also Nunez-Payan v. INS, 811 F.2d 264, 267 (5th Cir. 1987) (noncitizen who knowingly and consciously acts as a conduit is a trafficker).

[41] Parole of a noncitizen into the United States to face removal proceedings (or for other purposes) does not count as an “admission.”  Illegal entry is also not considered an admission.  See § § 17.5-17.8, supra.  Therefore, the immigration authorities could form a “reason to believe” well after some noncitizens have physically entered the United States.

[42] Matter of Rocha, 20 I. & N. Dec. 944 (BIA 1995).

[43] Immigraton Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (Nov. 29, 1990).