Criminal Defense of Immigrants

(C)  Relief.  Most forms of relief are unavailable to noncitizens found inadmissible under this ground, including refugee status, under INA § 207(c)(3), and refugee adjustment under INA § 209(c).[62]  Cancellation of removal for permanent residents and the S and T visas are among the few forms of relief available. NACARA relief is also available despite “reason to believe.”[63]  See generally Chapter 24, infra.

                Counsel may argue that inadmissibility under any of the “reason to believe” grounds of inadmissibility does not stop the clock for purposes of cancellation of removal, since the stop-time rule requires the commission of an offense.  That and
officer had ‘reason to believe’ the noncitizen was a drug trafficker is not an “offense,” and therefore should not stop the period of continuous physical presence for cancellation of removal.[64]

                There has apparently been some question whether relief is available under former INA § 212(c)[65] to waive a “reason to believe” finding based on activity that occurred prior to April 24, 1996.  The statute itself clearly allowed a waiver of the ground prior to that date, and the waiver was allowed under BIA caselaw.[66]  However, the DHS has apparently argued that 212(c) relief is currently allowed under 8 C.F.R. § 1212.3(h) only when the noncitizen has entered a plea of guilty or nolo contendere to certain crimes.  This is not a reasonable argument.  The language in 8 C.F.R. § 1212.3(h) was clearly meant to address the issue of whether 212(c) relief is available in event of a jury trial.[67]  If a plea were required in all cases, 212(c) relief would not be available to those who were never even charged with criminal activity, but merely admitted to committing a drug offense or a CMT.

                There is a strong argument that a finding of inadmissibility under the “reason to believe” ground does not bar a noncitizen from showing Good Moral Character unless s/he has been convicted of a drug trafficking offense or has admitted to committing the offense.[68]  The statutory definition of “Good Moral Character” states that a noncitizen is barred from showing Good Moral Character if s/he is a member of one of the classes of persons “described in . . . § 212(a)(2)(C) [the “reason to believe” provision] if the offense described therein, for which such person was convicted or of which he admits the commission, was committed during such period . . . .”  Merely committing such an offense (without a conviction or admission) would not satisfy INA § 101 (f)(3), and therefore does not bar the noncitizen from establishing Good Moral Character.

[62] INA § 209, 8 U.S.C. § 1159.

[63] Memo, Pearson, Ex. Assoc. Comm. HQADN 70/23.1-P, 70/6.1.3-P (Feb. 14, 2001), reprinted in78 No. 8 Interpreter Releases 407, 422-24 (Feb, 26, 2001).

[64] See § § 24.3-24.6, infra.

[65] INA § 212(c), 8 U.S.C. § 1182(c).  See § 24.28, infra.

[66] See Matter of Arreguin De Rodriguez, 21 I. & N. Dec. 38 (BIA 1995).

[67] See § 24.28, infra.

[68] See § 18.8, supra.