Drug trafficking crimes are aggravated felonies. There are two distinct aggravated felonies under INA 101(a)(43)(B), illicit trafficking in drugs and drug trafficking. In Matter of Sanchez-Cornejo, 24 I&N Dec. 273 (BIA 2010), the Board of Immigration Appeals (BIA) defined illicit trafficking as a conviction involving the unlawful trading or dealing of any controlled substance. Drug trafficking, on the other hand, refers to a felony punishable under any of the three federal drug laws including the Controlled Substance Act (CSA). A felony is a crime which carries a maximum term of imprisonment exceeding one year.
In a previous article, we have discussed the immigration consequences of drug offenses. In this article, we will focus on illicit trafficking in controlled substance and aspects of it which have been the subject of recent litigation.
Under INA 237(a)(2)(A)(iii), an alien who is convicted of an aggravated felony, such as illicit trafficking in controlled substance, at any time after admission into the US is deportable. This ground applies to those who were admitted into the country but who have been convicted after their admission.
Under INA 212(a)(2)(C), an alien, who a consular officer or the Attorney General knows or has reason to believe is an illicit trafficker in controlled substance, is inadmissible. This means that such alien is not eligible for a visa or admission into the US if the appropriate official knows or has reason to believe that the alien is an illicit trafficker.
It must be emphasized that the inadmissibility ground under INA 212(a)(2)(C) does not require a conviction but only a “reason to believe”. In contrast, the deportability ground under INA 237(a)(2)(A)(iii) requires a conviction.
The case of Chavez-Reyes v. Holder, No. 10-70776, slip op., (9th Circuit, January 27, 2014), shows us how the “reason to believe” standard under INA 212(a)(2)(C) works. In this case, police officers pulled over petitioner’s truck. They found almost 900 pounds of cocaine worth $28.7 million hidden in a compartment. Petitioner pleaded guilty to possession of cocaine with intent to distribute. On appeal, the Ninth Circuit Court of Appeals overturned the conviction because the officers lacked sufficient suspicion to stop petitioner’s truck.
However, the government’s failed efforts to get a conviction did not prevent it from initiating removal proceedings against petitioner based on a reason to believe that he engaged in the illicit trafficking of drugs. The Immigration Judge (IJ) and the BIA found petitioner removable. The Ninth Circuit agreed for two reasons.
First, petitioner’s voluntary guilty plea to the criminal charge supports a “reason to believe” that he engaged in illicit trafficking. It would have been different if the guilty plea was involuntary and the conviction was vacated on this basis but petitioner’s conviction was overturned for reasons unrelated to the voluntariness of his guilty plea. Second, substantial evidence shows that petitioner had engaged in illicit trafficking because the large amount of drugs in the vehicle which was within his sole control strongly suggests that petitioner knew his truck contained drugs.
The other issue involving the “reason to believe” standard which has found its way in the courts is the issue of who must have the necessary “reason to believe” and at what time. Let’s look at the facts in Gomez-Granillo v. Holder, 654 F.3d 826 (9th Cir. 2011) to illustrate the problem.
In this case, petitioner drove a truck to the Otay Mesa port of entry in December 2002. Upon inspection, immigration officers found 8,595 pounds of marijuana hidden within crates of produce. Petitioner was charged as inadmissible based on the officer’s reason to believe that petitioner was an illicit trafficker of drugs. In the removal proceedings, the IJ found petitioner inadmissible as charged based on information that was not available to immigration officers at the border during the attempted entry in December 2002. Petitioner argued that later-acquired information cannot be considered when determining whether there was reason to believe that he knowingly transported marijuana.
The Ninth Circuit held that INA 212(a)(2)(C) includes the Attorney General or the Secretary of Homeland Security among those who must have the “reason to believe” that an alien has engaged in illicit trafficking of drugs. The IJ and the BIA are included in the term “Attorney General” because they are within the office of the Department of Justice.
The Ninth Circuit also held that a finding of “reason to believe” must be based on information which was known or available to the appropriate immigration officials during the admission process. However, if the alien was not admitted into the US but was apprehended at the border, then any information found by the IJ during subsequent removal proceedings may be considered when determining whether there was a “reason to believe”.
In Gomez-Granillo’s case, he was not admitted into the US because he didn’t pass border inspection. Thus, the IJ could rely on information which was not yet available during the attempted border entry.
So be careful when somebody asks you to drive a package across the border. You could become an unwitting courier and proving innocence would be a challenge.
