Criminal Defense of Immigrants

“[T]he spouse, son, or daughter of an alien [inadmissible under the “reason to believe” illicit trafficking ground, 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 . . . is inadmissible.”[69]

This ground, like its analogue, is based on conduct, so no conviction of any offense is necessary to trigger its application.  The standard of proof of this ground of inadmissibility is defined by the same language as the “reason to believe” ground.  Therefore, the same legal standard should apply here as well.  See § 21.6, supra. For special considerations affecting juvenile clients facing this ground of inadmissibility, see § 12.34(B), supra.

The DHS must establish, in addition, 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 DHS 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.

                It is an open question whether a divorce or other non-married status will defeat application of this harsh provision.  Certainly, it is very unfair to find an ex-spouse inadmissible.  Because the culpability of the family member is relatively minor, this statute should be interpreted not to affect 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, under the plain meaning of its language.

                This ground of inadmissibility was signed into law on December 3, 1999, to “take effect on the date of enactment.”[70]   Absent express language, the statute should not be made applicable retroactively to conduct occurring before its passage, based on the presumption of nonretroactivity generally applicable to federal legislation.[71]

[69] INA § 212(a)(2)(C)(ii), 8 U.S.C. § 1182(a)(2)(C)(ii).

[70]  Intelligence Authorization Act for Fiscal Year 2000, § 811 of Title VIII, Pub. Law 106-120 (Dec. 3, 1999) (“This title shall take effect on the date of the enactment of this Act.”). 

[71]  See INS v St. Cyr, 533 U.S. 289, 121 S.Ct. 2271 (2001); 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]); but see 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).