Criminal Defense of Immigrants

 

(B)  Burden of Proof, Evidence and Credibility.  Although the noncitizen generally bears the burden of showing s/he is not inadmissible “clearly and beyond doubt,”[44] in this case, the DHS must first produce “reasonable, substantial and probative” evidence that the noncitizen engaged in illicit trafficking.[45]  If the DHS is able to produce such evidence, the burden then shifts to the noncitizen.

 

Whether the DHS has “reason to believe” the noncitizen was involved in illicit drug trafficking often turns into an evidentiary hearing, with both sides presenting evidence.  In Pichardo v. INS, [46] for example, the Ninth Circuit found that the immigration authorities had failed to establish a “reason to believe” based upon the evidence presented:

 

There was no credible evidence showing that Pichardo knowingly and consciously possessed intent to deliver the drugs.  Pichardo did not own the van.  He was not carrying significant amounts of cash.  He consistently denied having any knowledge of the drugs and he had no prior record of involvement with drugs. Furthermore, the drug charges against him were dropped and even the IJ stated that he found Pichardo’s testimony reasonably credible.  In light of these facts, we find that immigration officer did not have reasonable grounds to believe that Pichardo was a drug trafficker.[47]

 

Generally, the DHS can offer to the Immigration Judge any evidence that is “material and relevant to the issue.”[48]  Hearsay evidence is admissible.[49]  Where testimonial evidence is provided, the noncitizen has the right to cross-examine witnesses against him.[50]  If the noncitizen chooses to remain silent on the issue, the Immigration Judge can draw a negative influence from the silence.[51]

 

The existence of a drug trafficking conviction is generally sufficient, in itself, to support a “reason to believe” finding.[52]  However, this may not be the case where the conviction is under a divisible statute, e.g., where the statute of conviction punishes transportation for personal use in addition to drug trafficking.[53] 

 

If the noncitizen was subject to criminal charges, which were then dismissed, the noncitizen can still be found inadmissible under this ground.[54]  This is a different rule than that applied for the “admission”-based grounds.  See § 18.8, supra.

 

Unlike most grounds of removal, an act of juvenile delinquency that either results in a juvenile disposition, or is not prosecuted at all has been found sufficient to sustain a “reason to believe” charge.[55]  Immigration counsel can argue, however, that since the INA requires “illicit” trafficking, the noncitizen must have committed a “crime,” and that a person under 18 years old can only commit acts of juvenile delinquency.[56]  See § 12.34, supra.

 

                A plea to accessory after the fact or misprision of a felony may be sufficient to give the DHS “reason to believe,”[57] even though these two nonsubstantive offenses are not generally considered to be “related to” a controlled substances offense[58] and therefore do not trigger removal under the controlled substances conviction grounds.[59]

 

                The government’s knowledge or reasonable belief that an individual has trafficked in drugs must be based on “credible evidence.”[60]  The rebuttal evidence offered by the noncitizen must also be credible.  The Ninth Circuit has, in one case, reversed a decision finding the noncitizen not credible where the Immigration Judge violated due process by refusing to allow the noncitizen to present relevant expert testimony that bore on her credibility, relying instead on his own stereotypical assumptions about domestic violence.[61]  Decisions governing immigration judges’ assessment of asylum seekers’ credibility may be useful here.

[44] INA § 240(c)(2)(A), 8 U.S.C. § 1229a(c)(2)(A).

[45] Alarcon-Serrano v. INS, 220 F.3d 1116, 1119 (9th Cir. 2000) (immigration official must have “reasonable, substantial, and probative evidence” that noncitizen knew he was participating in illicit drug trafficking to support finding of inadmissibility under INA § 212(a)(2)(C)(i), 8 U.S.C. § 1182(a)(2)(C)(i)), citing Hamid v. INS, 538 F.2d 1389, 1390-91 (9th Cir. 1976); Lopez-Molina v. Ashcroft, 368 F.3d 1206 (9th Cir. June 2, 2004).  In the context of INA § 212(a)(3)(B)(i)(II), 8 U.S.C. § 1182(a)(3)(B)(i)(II), reason to believe noncitizen will engage in terrorist activity, the BIA has equated the “reason to believe” analysis with finding probable cause in the criminal context.  Matter of UH, 23 I. & N. Dec. 355, 356 (BIA 2002).

[46] Pichardo v. INS, 188 F.3d 1079 (9th Cir. Sept. 7, 1999), vacated on other grounds, 216 F.3d 1198 (9th Cir. 2000).

[47] Id. at 1082.

[48] Matter of Wadud, 19 I. & N. Dec. 182 (BIA 1984).  See also Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995) (in immigration proceedings “[t]he sole test for admission of evidence is whether the evidence is probative and its admission is fundamentally fair.”).

[49] Rojas-Garcia v. Ashcroft, 339 F.3d 814, 823-824 (9th Cir. 2003).

[50] Rojas-Garcia v. Ashcroft, 339 F.3d at 824.

[51] Rojas-Garcia v. Ashcroft, 339 F.3d 814 (9th Cir. 2003).

[52] See Lopez-Molina v. Ashcroft, 368 F.3d 1206 (9th Cir. June 2, 2004) (convicted of misprision of a felony – to wit conspiracy to possess marijuana with intent to distribute).  Of course, noncitizens convicted of drug trafficking crimes will generally be charged under INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II) (controlled substances conviction).

[53] Cf. Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. Nov. 26, 2003) (New Jersey conviction dated November 17, 1995, for possession with intent to distribute more than one ounce (28.5 grams) of marijuana, in violation of N.J. Stat. Ann. § 2C:35-5b(11), might have failed to give the INS reason to believe the defendant had been a drug trafficker, triggering inadmissibility under INA § 237(a)(2)(C)(i), 8 U.S.C. § 1227(a)(2)(C)(i)).

[54] Matter of Rico, 16 I. & N. Dec. 181 (BIA 1977).  See also Nunez-Payan v. INS, 815 F.2d 384 (5th Cir. 1987) (deferred adjudication).

[55] 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; “We conclude that conviction and sentencing under the FYCA ought not actually improve petitioner’s immigration status by disallowing the admission of the factual basis merely because of the invocation of the FYCA.”).

[56]  See, e.g., Matter of MU, 2 I. & N. Dec. 92 (BIA 1944) (admission by adult of activity committed while a minor is not an admission of committing a crime involving moral turpitude triggering inadmissibility).

[57] Lopez-Molina v. Ashcroft, 368 F.3d 1206 (9th Cir. June 2, 2004) (suspicious meetings between noncitizen and other suspects, several of whom were arrested with several thousand dollars in cash, noncitizen’s attempt to escape when police stopped the vehicle he was driving, and discovery of 147 pounds of marijuana in the trunk, plus a guilty plea to failure to disclose to authorities his knowledge of a conspiracy to distribute marijuana, not rebutted by the noncitizen, constituted sufficient evidence to support reason to believe he was inadmissible as illicit trafficker).

[58] See § 21.32, infra.

[59] INA § § 212(a)(2)(A)(i)(II), 237(a)(2)(B)(i), 8 U.S.C. § § 1182(a)(2)(A)(i)(II), 1227(a)(2)(B)(i). 

[60] Castano v. INS, 956 F.2d 236, 238 (11th Cir. 1992).

[61] Lopez-Umanzor v. Gonzales, 405 F.3d 1049 (9th Cir. May 6, 2005).