(C)  Reason to Believe.  A conviction for distribution without remuneration has generally been held sufficient to give the DHS “reason to believe” a noncitizen has engaged in drug trafficking.[236]  However, counsel can argue that since distribution without remuneration has no “trafficking” element, the offense should not be considered “drug trafficking,” and should not form the basis of a reason to believe the noncitizen is or has been a drug trafficker.[237]

 

[236] Matter of RH, 7 I. & N. Dec. 675 (BIA 1958); Matter of Martinez-Gomez, 14 I. & N. Dec. 104 (BIA 1972).  See § 21.6, infra. 

[237] See, e.g., Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. Nov. 26, 2003) (New Jersey conviction 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), may 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)). Cf. Gerbier v. Holmes, 280 F.3d 297 (3d Cir. Feb. 8, 2002) (distribution does not necessarily imply drug trafficking, since offense may not require an element of trading or dealing).

Other

CONTROLLED SUBSTANCES " FLORIDA " STRICT-LIABILITY POSSESSION STATUTE HELD UNCONSTITUTIONAL FOR LACK OF MENS REA
Shelton v. Secretary, Department of Corrections, ___ F.Supp.2d ___ (M.D. Fla. Jul. 27, 2011) (Florida conviction of delivery of a controlled substance, in violation of Fla. Stat. 893.13, is vacated; the statute of conviction is unconstitutional on its face because it allows conviction of controlled substances on the basis of strict liability, eliminating mens rea as an element of a drug offense).