(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).

BIA

INADMISSIBILITY - REASON TO BELIEVE ILLICIT TRAFFICKING
Matter of Casillas-Topete, 25 I. & N. Dec. 317 (BIA 2010) (an alien is removable under INA 237(a)(1)(A), as one who was inadmissible at the time of entry or adjustment of status pursuant to INA 212(a)(2)(C), where any appropriate immigration official knew or had reason to believe that the alien was a trafficker in controlled substances at the time of admission to the United States), modifying Matter of Rocha, 20 I. & N. Dec. 944 (BIA 1995) (limited to the inspecting officer only).

INADMISSIBILITY - REASON TO BELIEVE
Matter of Rico, 16 I. & N. Dec. 181, 186 (BIA 1977); Alarcon-Serrano v. INS, 220 F.3d 1116, 1119 (9th Cir. 2000) (BIA did not rest on the evidence of Rico's arrest for drug trafficking, but detailed all of the evidence against him, including the undisputed fact that he had a "large quantity of marihuana concealed in his motor vehicle" at the time of his arrest).

Fourth Circuit

INADMISSIBILITY - REASON TO BELIEVE
Igwebuike v. Caterisano, ___ F.3d ___ , ___, 2007 WL 1180300 (4th Cir. April 20, 2007) ("An arrest or charge by itself is not substantial evidence of drug trafficking. Although the Director may determine that an alien is inadmissible based on facts underlying an arrest, he must cite these facts as support for his "reason to believe" that the petitioner was involved in drug trafficking."; a charge of which the defendant was acquitted is insufficient to constitute the "reason to believe" ground of inadmissibility finding that the defendant has ever been a trafficker in illicit controlled substances, under INA 212(a)(2)(C), 8 U.S.C. 1182(a)(2)(C), which must be based on "reasonable, substantial, and probative evidence."), quoting Matter of Rico, 16 I. & N. Dec. 181, 185 (BIA 1977); Alarcon-Serrano v. INS, 220 F.3d 1116, 1119 (9th Cir. 2000).

INADMISSIBILITY - REASON TO BELIEVE - ARREST ALONE INSUFFICIENT; GOVERNMENT MUST REQUEST FURTHER EVIDENCE
Igwebuike v. Caterisano, ___ F.3d ___ , 2007 WL 1180300 (4th Cir. April 20, 2007) (an arrest for drug trafficking, without any of the facts of the underlying arrest, is insufficient evidence to sustain a reason to believe charge; the DHS should have requested additional evidence; "The drug trafficking arrest, however, does raise underlying questions regarding eligibility, see 103.2(b)(8), and the Director was obliged to request further information, such as arrest or police reports, if he believed it was necessary to determine Igwebuike's eligibility for relief. Once the Director requests additional information, he may deny the application if the alien fails to provide the information, see 103.2(b)(13), or prove its non-existence, see 103.2(b)(2).").

Fifth Circuit

INADMISSIBILITY " REASON TO BELIEVE ILLICIT TRAFFICKING " STANDARD OF PROOF REQUIRED
Cuevas v. Holder, 737 F.3d 972, 975 (5th Cir. Dec. 10, 2013) (determination of inadmissibility, under INA 212(a)(2)(C), 8 U.S.C. 1182(a)(2)(C), must be based on reasonable, substantial, and probative evidence, but does not require a conviction); compare Westover v. Reno, 202 F.3d 475, 480 n.6 (1st Cir.2000) (speculating in dictum that probable cause to believe that an alien was growing marijuana could have rendered the alien removable under 8 U.S.C. 1182(a)(2)(C)); In re U"H", 23 I. & N. Dec. 355, 356 (BIA 2002) (describing the reasonable ground to believe standard as akin to the probable cause standard), with Alarcon"Serrano v. INS, 220 F.3d 1116, 1119 (9th Cir. 2000) (holding that a reason to believe under 8 U.S.C. 1182(a)(2)(C) must be based on reasonable, substantial, and probative evidence).

Seventh Circuit

CONTROLLED SUBSTANCES " REASON TO BELIEVE
Pronsivakulchai v. Holder, 646 F.3d 1019 (7th Cir. Jul. 25, 2011) (asylum, withholding and CAT barred under 8 U.S.C. 1158(b)(2)(A)(iii), 8 U.S.C. 1231(b)(3)(B)(iii), and 8 C.F.R. 1208.16(d)(2), respectively, where government had serious reason to believe that petitioner had committed offenses related to drug trafficking).

Ninth Circuit

POST CON RELIEF " REASON TO BELIEVE
Chavez-Reyes v. Holder, 741 F.3d 1 (9th Cir. Jan. 27, 2014) (denying petition for review from BIA decision finding petitioner inadmissible because there was reason to believe that he engaged in or assisted others in illicit trafficking in a controlled substance, under INA 212(a)(2)(C)(i), 8 U.S.C. 1182(a)(2)(C)(i), based on circumstantial evidence and on his guilty plea to possession of cocaine with intent to distribute, where the BIA did not violate petitioner's due process rights by considering his guilty plea, even though the court overturned the criminal conviction on appeal, because the court overturned the conviction solely because the police officers lacked reasonable suspicion to conduct the traffic stop, a reason unrelated to the voluntariness of the guilty plea). Note: Counsel can do a better job of establishing the connection between the Fourth Amendment violation and the voluntariness of the plea. The plea was involuntary because defense counsel rendered ineffective assistance in failing to suppress the evidence, and in failing to inform the defendant of the inadmissibility of the evidence, so the plea was based on misinformation concerning the admissibility of the evidence against the defendant.

INADMISSIBILITY " REASON TO BELIEVE DRUG TRAFFICKING
Gomez-Granillo v. Holder, ___ F.3d ___, ___, 2011 WL 2714163(9th Cir. Jul.14, 2011) (where, as here, respondent was charged in a removal hearing with inadmissibility under the reason to believe drug trafficking ground, INA 212(a)(2)(C), 8 U.S.C. 1182(a)(2)(C): the IJ, as a representative of the Attorney General, was free to receive new information at the evidentiary hearing, and to decide its credibility and weight. See Alarcon-Serrano, 220 F.3d at 119-20. It was permissible and appropriate for the IJ and BIA to rely on such information in determining whether there was reason to believe petitioner was knowingly transporting marijuana when he attempted to cross the border into the United States. See id. Accordingly, we conclude that it was proper for the IJ to receive and consider petitioner's testimony, Agent Lehman's opinion, and other information not necessarily known, actually or constructively, to officers at the border on December 13, 2002.).

INADMISSIBILITY " REASON TO BELIEVE DRUG TRAFFICKING "CREDIBILITY DETERMINATION
Gomez-Granillo v. Holder, ___ F.3d ___, ___, 2011 WL 2714163 (9th Cir. Jul.14, 2011) (Because the IJ did not understand that he could consider credible testimony by petitioner, he evidently did not, even implicitly, make a decision regarding petitioner's credibility. Failure of the IJ and BIA to evaluate the credibility of a petitioner's testimony in a case like this is a fundamental flaw, which deprives a petitioner of his right to have his testimony considered and precludes effective review.); see Lopez"Umanzor, 405 F.3d at 1059; Hartooni v. INS, 21 F.3d 336, 343 (9th Cir.1994) (remanding for a credibility determination where the BIA relied on the IJ's credibility determination when, in fact, the IJ did not make such a credibility finding); see also Kho v. Keisler,505 F.3d 50, 56 (1st Cir.2007) (If, in the absence of a credibility finding by the IJ, a reviewing court determines that such a finding is necessary for effective review of the case, it may remand to the agency for further factfinding.).

INADMISSIBILITY " REASON TO BELIEVE DRUG TRAFFICKING
Gomez-Granillo v. Holder, ___ F.3d ___, 2011 WL 2714163 (9th Cir. Jul. 14, 2011) (information constituting reason to believe that respondent engaged in drug trafficking must be in possession of Attorney General or Secretary of Homeland Security " not only the individual officer admitting respondent " at the time of admission, to constitute ground of inadmissibility under INA 212(a)(2)(C), 8 U.S.C. 1182(a)(2)(C)); citing Matter of Casillas"Topete, 25 I & N Dec. 317, 321 (BIA 2010) (noncitizen is inadmissible under the reason to believe drug trafficking ground of inadmissibility, INA 212(a)(2)(C), 8 U.S.C. 1182(a)(2)(C), if sufficient facts are known to the consular officer, Attorney General, or Department of Homeland Security at the time the admission occurred, even if they are not known to the inspecting immigration official who admitted the noncitizen: [I]t is not relevant under the terms of the statute that the inspecting immigration officer does not have access to information regarding the alien's trafficking if that information is known to other immigration officials. . . . Thus, as long as the information was demonstrably known to an appropriate immigration official when the admission occurred, it can be relied on to sustain the charge.).

INADMISSIBILITY " REASON TO BELIEVE DRUG TRAFFICKER " COURT OF APPEAL STANDARD OF REVIEW OF BIA DECISION
Gomez-Granillo v. Holder, ___ F.3d ___, ___, 2011 WL 2714163 (9th Cir. Jul. 14, 2011) (The court must determine whether reasonable, substantial, and probative evidence supports the IJ's reason to believe that [petitioner] knew he was participating in illicit drug trafficking.); quoting Lopez-Molina, 368 F.3d at 1211, quoting Alarcon-Serrano, 220 F.3d at 1119.

INADMISSIBILITY " REASON TO BELIEVE DRUG TRAFFICKER " WHO MUST HAVE REASON TO BELIEVE
Gomez-Granillo v. Holder, ___ F.3d ___, ___, 2011 WL 2714163 (9th Cir. Jul. 14, 2011) (The IJ and BIA may, depending on the circumstances, be among the appropriate immigration officials included in the term Attorney General [or Secretary of Homeland Security] in 1182(a)(2)(C). See Lopez"Molina, 368 F.3d at 1211"12; Alarcon"Serrano, 220 F.3d at 1119; Casillas-Topete, 25 I & N Dec. at 321.). NOTE: This situation generally would arise where the respondent was apprehended at the border, charged with inadmissibility, and served with an NTA to allow the IJ to make the inadmissibility determination.

INADMISSIBILITY " REASON TO BELIEVE " TIMING
Gomez-Granillo v. Holder, ___ F.3d ___, ___, 2011 WL 2714163 (9th Cir. Jul. 14, 2011) (The appropriate immigration officials may make a finding of reason to believe based only on information available when the admission occurred. See Casillas"Topete, 25 I & N Dec. at 321. Therefore, the appropriate immigration officials must collectively know the information before the alien makes lawful entry into the United States after inspection and authorization by an immigration officer. See 8 U.S.C. 1101(a)(13)(A); Hing Sum, 602 F.3d at 1096 (defining admission); Matter of Rosas"Ramirez, 22 I & N Dec. at 618"20 (same).).

INADMISSIBILITY " REASON TO BELIEVE DRUG TRAFFICKING " ADMISSIONS BEFORE IMMIGRATION COURT
Gomez-Granillo v. Holder, ___ F.3d ___, ___, 2011 WL 2714163 (9th Cir. Jul. 14, 2011) (Accordingly, where the alien is apprehended at the border and, rather than being admitted, is charged with being inadmissible, information learned by the IJ during the subsequent proceedings to determine inadmissibility may be considered in deciding whether there is reason to believe the alien is involved in drug trafficking. See Alarcon"Serrano, 220 F.3d at 1119"20. [Footnote omitted.] However, if the alien is admitted, information not known to an appropriate immigration official when the admission occurred may not later be relied upon to sustain a charge that the alien was inadmissible at the time of admission. [Footnote omitted.] See Casillas"Topete, 25 I & N Dec. at 321.).

INADMISSIBILITY " REASON TO BELIEVE " ADMISSIONS BEFORE IMMIGRATION COURT
Gomez-Granillo v. Holder, ___ F.3d ___, ___, n.7, 2011 WL 2714163 (9th Cir. Jul. 14, 2011) (Because petitioner was charged with being inadmissible at the time of his hearing, we need not, and do not, decide whether the IJ may consider an alien's post-admission testimony in evaluating the evidence known at the time of admission.).

INADMISSIBILITY " REASON TO BELIEVE DRUG TRAFFICKING " NINTH CIRCUIT RULES FOR CONSIDERING REASON TO BELIEVE QUESTION IN REMOVAL PROCEEDINGS
In Gomez-Granillo, the Ninth Circuit synthesized the rules for conducting a removal hearing on a question whether there was reason to believe respondent was a drug trafficker at the time of admission: 1. The IJ and BIA may, depending on the circumstances, be among the appropriate immigration officials included in the term Attorney General [or Secretary of Homeland Security] in 1182(a)(2)(C). See Lopez"Molina, 368 F.3d at 1211"12; Alarcon"Serrano, 220 F.3d at 1119; Casillas"Topete, 25 I & N Dec. at 321. 2. The appropriate immigration officials may make a finding of reason to believe based only on information available when the admission occurred. See Casillas"Topete, 25 I & N Dec. at 321. Therefore, the appropriate immigration officials must collectively know the information before the alien makes lawful entry into the United States after inspection and authorization by an immigration officer. See 8 U.S.C. 1101(a)(13)(A); Hing Sum, 602 F.3d at 1096 (defining admission); Matter of Rosas"Ramirez, 22 I & N Dec. at 618"20 (same). 3. Accordingly, where the alien is apprehended at the border and, rather than being admitted, is charged with being inadmissible, information learned by the IJ during the subsequent proceedings to determine inadmissibility may be considered in deciding whether there is reason to believe the alien is involved in drug trafficking. See Alarcon"Serrano, 220 F.3d at 1119"20. However, if the alien is admitted, information not known to an appropriate immigration official when the admission occurred may not later be relied upon to sustain a charge that the alien was inadmissible at the time of admission. See Casillas"Topete, 25 I & N Dec. at 321. (Gomez-Granillo v. Holder, ___ F.3d ___, ___, 2011 WL 2714163 (9th Cir. Jul.14, 2011) (footnotes omitted).) The court stated it was an open question whether the IJ may consider an alien's post-admission testimony in evaluating the evidence known at the time of admission. (Id. at n.7.)

INADMISSIBILITY - REASON TO BELIEVE
Lopez-Molina v. Ashcroft, 368 F.3d 1206, 1211 (9th Cir. 2004) (finding sufficient reason to believe the alien had committed illegal acts underlying previous drug trafficking arrest because the government submitted documents describing the police surveillance of the alien and the alien's subsequent attempt to escape with 147 pounds of marijuana).

INADMISSIBILITY - REASON TO BELIEVE
Rojas-Garcia v. Ashcroft, 339 F.3d 814, 818 (9th Cir. 2003) (affirming BIA's decision to deny an I-485 application because, in addition to a previous arrest for drug trafficking, two undercover detectives testified that they had personally arranged drug deals with the petitioner).

Tenth Circuit

INADMISSIBILITY " REASON TO BELIEVE ILLICIT DRUG TRAFFICKING
Mena-Flores v. Holder, ___ F.3d ___, 2015 WL 294629 (10th Cir. Jan. 23, 2015) (even though noncitizen was acquitted of drug-trafficking criminal charges, substantial evidence supported determination that there was reason to believe that noncitizen had participated in drug trafficking, triggering inadmissiblity under INA 212(a)(2)(C)(i), 8 U.S.C. 1182(a)(2)(C)(i)); but see e.g., Garces v. Att'y Gen., 611 F.3d 1337, 1350 (11th Cir.2010) (reversing a finding of reason to believe based only on a vacated plea and some hearsay in police reports); Igwebuike v. Caterisano, 230 F. App'x 278, 283"85 (4th Cir.2007) (reversing a finding of reason to believe that had been based solely on insubstantial, non-probative evidence).

Eleventh Circuit

CONTROLLED SUBSTANCES " REASON TO BELIEVE
Garces v. US Atty. Gen., 611 F.3d 1337 (11th Cir. Jul. 27, 2010) (noncitizen whose drug trafficking conviction was vacated on the basis that the plea was not voluntary may still be found inadmissible for reason to believe that the noncitizen has engaged in drug trafficking, and the DHS may use police reports, the vacated conviction, and the motion to vacate itself to make a reason to believe determination; in this case, the submitted records were insufficient since the record did not show whether the noncitizen entered a plea of guilt or a plea of no contest, and the submitted police reports only made conclusions [he had engaged in drug trafficking], rather than describing a set of facts that would be sufficient to warrant such a conclusion). NOTE: This is a very good case to read on the topic of reason to believe and the admissibility of evidence in immigration proceedings.

Other

PRACTICE ADVISORY " INADMISSIBILITY " REASON TO BELIEVE ILLICIT TRAFFICKING
The following authorities may be of use in analyzing inadmissibility based on a claim that the Government has reason to believe respondent was an illicit trafficker in a controlled substance, under INA 212(a)(2)(C)(i), 8 U.S.C. 1182(a)(2)(C)(i). If immigration officials have reason to believe that a noncitizen has ever assisted in drug trafficking or been a drug trafficker, the person is inadmissible (but not deportable). INA 212(a)(2)(C)(i), 8 U.S.C. 1182(a)(2)(C)(i), all that is needed to trigger this ground is reasonable, substantial, and probative evidence that a person has knowingly engaged in drug trafficking. See Matter of Rico, 16 I&N Dec. 181, 185-86 (BIA 1977); Alarcon-Serano v. INS, 220 F.3d 1116, 1119 (9th Cir. 2000). See also Castano v. INS, 956 F.2d 236, 238 (11th Cir. 1992) (governments knowledge or reasonable belief that an individual has trafficked in drugs must be based on credible evidence). Drug trafficking has been defined as some sort of commercial dealing, (see Lopez v. Gonzales, 549 US 47, 127 S.Ct. 625, 166 L. Ed. 2d 462, (2006)) and the unlawful trading or dealing of any controlled substance. See Matter of Davis, 20 I&N Dec. 536, 541 (BIA 1992). Evidence such as police reports, testimony from police, admissions by noncitizens, delinquency adjudications, adult convictions, and any other evidence of sale or possession with intent to distribute have all been held to supply reason to believe. See Matter of Favela, 16 I&N Dec. 753. 756 (BIA 1979); Matter of Rico, supra (reason to believe found based on testimony of Border Patrol agents that respondent frequently drove a car in which 162 pounds of marijuana was found). The RTB ground also applies to any spouse, son, or daughter of a drug trafficker who has received some financial or other benefit from the trafficking in the previous five years. Importantly, though, the terms son and daughter under immigration law refer only to those who are over the age of 21. Thus, this ground should not apply to noncitizens who receive a benefit from a parents drug trafficking while still juveniles. Because the RTB drug trafficking ground cannot be waived in any context, except that of U and T Visa applicants, it creates a nearly absolute bar to a client receiving any form of lawful immigration status. Also, because the RTB bar is so low and can apparently be met by evidence brought out during juvenile proceedings, it is vital for defense counsel to be aware of any evidence of drug trafficking that is admitted and to fight the admission of such evidence whenever possible. A guilty plea alone, without conviction and without independent evidence of drug trafficking, is insufficient evidence to sustain a DHS charge of reason to believe. Cf. Matter of Winter, 12 I&N Dec. 638 (BIA 1967, 1968) (guilty plea, which resulted in something less than a conviction, insufficient to sustain a finding of inadmissibility based on admission of offense); Matter of Seda, 17 I&N Dec. 550 (BIA 1980); Matter of Thomas, 21 I&N Dec. 20 (BIA 1995) (limiting use of conviction on appeal to discretionary considerations); but see Matter of I, 4 I&N Dec. 159 (BIA 1950, AG 1950) (where dismissal or acquittal results from purely technical infirmities or from perjured testimony, BIA will not abide by its usual practice of deference to judicial decisions).

INADMISSIBILITY " REASON TO BELIEVE ILLICIT TRAFFICKING " PRACTICE ADVISORY
A possession conviction, like any other facts, can be considered by the government in making the Reason To Believe illicit trafficking determination, but it obviously standing alone is not sufficient because it provides no RTB of trafficking, just use. See Matter of Winter, 12 I. & N. Dec. 638 (BIA 1968); Matter of Seda, 17 I. & N. Dec. 550 (BIA 1980), that are not exactly on point but may help by analogy. They basically say that if a criminal case results in a final disposition that does not constitute a CMT, the government cannot go behind that disposition and look at " e.g., a vacated plea " and use that as an oral admission equivalent to a conviction for inadmissibility purposes. Immigration counsel can argue that since the DHS cannot use a court disposition that does not establish inadmissibility as a conviction-based ground of inadmissibility, it also cannot use it to establish a different crime-related ground of inadmissibility either, the RTB ground. Immigration counsel can argue that a noncitizen cannot be found inadmissible, under INA 212(a)(2)(C)(i), for reason to believe he or she was an illicit trafficker, on the basis of an arrest for unlawful possession with intent to deliver cannabis where the charges were dismissed on motion of the prosecutor's office for lack of sufficient evidence. Where the evidence fails to establish anything more than a mere suspicion, then a reason to believe finding is unsupported as a matter of law. According to the Foreign Affairs Manual, reason to believe means more than a mere suspicion by a consular officer that an applicant may be or have been involved in drug trafficking. 9 FAM 40.23 N2. FAM directs consular officers to decide whether a probability, supported by evidence such as a conviction, an admission, a long record of arrests with an unexplained failure to prosecute by the local government, or several reliable and corroborative reports exists before making a finding of inadmissibility for reason to believe. Id. A determination of reason to believe must be based on reasonable, substantial and probative evidence. Alcarcon-Serrano v. INS, 220 F.3d 1116, 1119 (9th Cir. 2000). Respondent has a right to present evidence to rebut the charge of reason to believe. Pronsivakulchai v. Gonzales, 461 F.3d 903 (7th Cir. 2006). Reason to believe is equated with probable cause. Matter of U-H-, 23 I&N Dec. 355, 356 (BIA 2002). Therefore, an officer must apply a higher standard than a mere suspicion and assess independently evidence before making a finding of inadmissibility for reason to believe. Thanks to Sara Dady.

POST CON RELIEF " FEDERAL YOUTH CORRECTIONS ACT " RELIEF UNDER FYCA DOES NOT PROTECT AGAINST REASON TO BELIEVE ILLICIT TRAFFICKING GROUND OF INADMISSIBILITY
Even if the client could get a FYCA expungement now, it has never insulated a noncitizen from "reason to believe" inadmissibility, which does not require a conviction. See, e.g, Castano v. INS, 956 F.2d 236 (11th Cir. 1992); Matter of Favela, 16 I&N Dec. 753 (BIA 1979). Thanks to Dan Kesselbrenner.

INADMISSIBILITY " REASON TO BELIEVE " FEDERAL YOUTH CORRECTIONS ACT " RELIEF UNDER FYCA DOES NOT PROTECT AGAINST REASON TO BELIEVE ILLICIT TRAFFICKING GROUND OF INADMISSIBILITY
Even if the client could get a FYCA expungement now, it has never insulated a noncitizen from "reason to believe" inadmissibility, which does not require a conviction. See, e.g, Castano v. INS, 956 F.2d 236 (11th Cir. 1992); Matter of Favela, 16 I&N Dec. 753 (BIA 1979). Thanks to Dan Kesselbrenner.