Criminal Defense of Immigrants


§ 21.18 (C)

Skip to § 21.

For more text, click "Next Page>"

(C)  “Reason to Believe.”  The DHS may find a noncitizen inadmissible, but not deportable, if it has “reason to believe” s/he (or a family member) is or has been at any time a drug trafficker (or knowing aider, abettor, assister, conspirator or colluder).[153]  Simple possession is not considered “trafficking” for purposes of this ground.[154]  The noncitizen must have intended to traffic in a controlled substance.[155]  Therefore, a conviction for simple possession does not, by itself, trigger this ground.


However, this ground of inadmissibility does not require a conviction.  Therefore, if the noncitizen was in fact involved in trafficking, s/he could still be found inadmissible, even if convicted of a non-trafficking offense.[156]

[153] See § § 21.6-21.7, supra.

[154] Matter of McDonald and Brewster, 15 I. & N. Dec. 203, 204 (BIA 1975).

[155] Matter of Rico, 16 I. & N. Dec. 181, 186 (BIA 1977); Matter of Favela, 16 I. & N. Dec. 753, 755 (BIA 1979) (upholding the IJ’s finding that the alien was a “conscious participant” in an attempt to smuggle drugs into the United States and thereby excludable under INA § 212(a)(23)).  See also Nunez-Payan v. INS, 811 F.2d 264, 267 (5th Cir. 1987) (noncitizen who knowingly and consciously acts as a conduit is a trafficker).

[156] Cf. Matter of Favela, 16 I. & N. Dec. 753 (BIA 1979) (juvenile noncitizen 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).



Ninth Circuit

Pagayon v. Holder, 642 F.3d 122, 2011 WL 2508239 (9th Cir. Jun. 24, 2011) (per curiam) (California conviction of possession of a controlled substance, under Health & Safety Code 11377(a), constituted a controlled substances conviction, triggering deportation under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), where respondents admission in removal proceedings he pleaded to guilty as charged established the drug involved as methamphetamine which was listed in federal drug schedules).