(D)  Asylum/Withholding/CAT.  Noncitizens inadmissible or deportable for a drug conviction or under the drug conduct-based grounds still can apply for asylum, as long as the conviction is not an aggravated felony.  However, if the conviction involved trafficking, or if the government has substantial “reason to believe” the person trafficked, it is very unlikely that asylum will be granted, since the immigration authorities presume such an offense is a “particularly serious crime,” barring asylum.[126]  The “reason to believe” ground of inadmissibility[127] is one of the few grounds of inadmissibility that cannot be waived in asylee and refugee adjustment.[128] 

 

A noncitizen convicted of an aggravated felony, but sentenced to less than five years, is not absolutely barred from applying for withholding of removal.[129]  However, Attorney General Ashcroft has held that conviction of a drug trafficking aggravated felony is automatically classified as a “particularly serious crime” barring withholding, absent a narrow range of extenuating circumstances.[130]

 

No criminal conviction bars relief under the Convention Against Torture, for noncitizens who face a clear probability of torture in their home country.[131]

[126] Matter of YL, AG, and RSR, 23 I. & N. Dec. 270 (A.G. 2002), disapproving Matter of SS, 22 I. & N. Dec. 458 (BIA 1999), overruled, 23 I. & N. Dec. 270 (A.G. 2002).

[127] See § 21.6, supra.

[128] INA § 209(c), 8 U.S.C. § 1159(c).  See § 24.20, infra.

[129] See § 24.31, infra.

[130] Matter of YL, AG, and RSR, 23 I. & N. Dec. 270 (A.G. 2002), disapproving Matter of SS, 22 I. & N. Dec. 458 (BIA 1999), overruled, 23 I. & N. Dec. 270 (A.G. 2002).

[131] See § 24.7, infra.

BIA

CONTROLLED SUBSTANCES - RELIEF - PAULUS DEFENSE INAPPLICABLE
Matter of Martinez-Espinoza, 25 I. & N. Dec. 118 (BIA Nov. 4, 2009) (unidentified substance defense under Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007); Matter of Paulus, 11 I&N Dec. 274 (BIA 1965), inapplicable where burden is on noncitizen to show not ineligible for relief by a preponderance of the evidence). NOTE: This may not be true in the Ninth Circuit. See Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1124 (9th Cir. 2007).