A person can be found inadmissible to the United States if the person is a controlled-substance trafficker. More challenging, the US government can find someone inadmissible by merely having a “reason to believe” that the person has been a knowing assister, abettor, conspirator, or colluder with others in illicit controlled-substance trafficking. See INA §212(a)(2)(C)(i); 9 FAM 302.4-3(B)(3). A conviction is unnecessary if DHS has “reason to believe” that someone is a trafficker. Matter of Rico, 16 I&N Dec. 181 (BIA 1977).
Conviction or Admission
If you have been convicted of any crime related to the transportation or sales of any controlled substance, it is important to discuss your case with a skilled immigration attorney. Even if your case was dismissed or expunged, you can still face severe immigration consequences. Many times, these cases are initially mishandled, and documents such as police reports are provided to the government which are later used to deny a benefit to the requestor.
“Reason to Believe” – What Type of Evidence Can The Government Use?
Under “reason to believe,” an immigration benefit can be denied merely because the government has a “reason to believe” you are a drug trafficker. Often this “reason to believe” is based on prior convictions. However, it is also common for the government to deny benefits merely because you were arrested, even if the charge was later dismissed. For example, an arrest where a large amount of drugs was found, even if later dismissed, can support a “reason to believe” finding.
Probative Evidence
Although it is extremely difficult to challenge “reason to believe” findings, our office has been successful in doing so by highlighting weaknesses in the government’s case, particularly as it relates to the evidence they rely on.
“Reason to believe” someone was inadmissible must be based on reasonable, substantial, and probative evidence. Cuevas v. Holder, 737 F.3d 972 (5th Cir. 2013). In Mena-Flores v. Holder, 776 F.3d 1152, 1161-73 (10th Cir. 2015) the court found the “reason to believe” determination was unsupported due to the unreliability of government witnesses, no law enforcement identification of applicant’s involvement, tainted evidence due to government misrepresentation, and personal characteristics inconsistent with criminality. In Lopez v. Gonzales, 549 U.S. 47 (2006), the “reason to believe” finding was unsupported because drug trafficking requires remuneration for sale or distribution, and the absence of proof of sale meant no trafficking had occurred.
Often times immigration or consular officers will make “reason to believe” determinations solely based on suspicion. This is insufficient to support a reason to believe finding. The Department of State standard, adopted by the 11th Circuit, “is that the consular officer must have more than a mere suspicion–there must exist a probability supported by evidence, that the alien is or has been engaged in trafficking.” See 9 FAM 302.4-3(B)(3)(b)
Police Reports
Where there is no conviction, the government may try to use an arrest report to support a “reason to believe” finding. It is important that a skilled immigration attorney handle any case involving drug charges. In cases where police reports have been used against our clients, our firm has been successful in arguing that the police reports are unreliable. Specifically, we’ve highlighted that in “reason to believe” cases, police/arrest reports should be given “little weight” when not corroborated by other evidence. Garces v. U.S. Att’y Gen., 611 F.3d 1337, 1349-50 & n.13 (11th Cir. 2010) [quoting Fed. R. Evid. 803(8) advisory committee notes (police reports not reliable because adversarial), as well as former 9 FAM 40.23 & n.2(c) (finding should not be based on “conclusions of other evaluators … no matter how trustworthy”) and expressing “reliability concerns” about uncorroborated police reports]; Alphonsus v. Holder, 705 F.3d 1031, 1047 n.15 (9th Cir. 2013) [questioning reliability of police report].
Spouse, Son or Daughter of Traffickers - INA §212(a)(2)(C)(ii)
The INA has also made the spouse, son, or daughter of a person inadmissible for trafficking or assisting traffickers if he or she, within the past 5 years, obtained any financial or other benefit from the illegal activity and knew or reasonably should have known that the financial or other benefit was the product of illicit activity. INA §212(a)(2)(C)(ii); [8 USC §1182(a)(2)(C)(ii)]; 9 FAM 302.3-5(A).
Under these circumstances, a skilled attorney should review your case and understand whether the allegations are supported, and if so, the time frame, and your knowledge regarding the criminal activity of your family.
No Waiver Available
Unfortunately, drug trafficking inadmissibility has no waiver available and is perhaps the most challenging area of immigration law. Therefore, the best approach is to challenge the legal validity of the “reason to believe” finding by questioning the reliability of the evidence. In situations where someone was convicted of drug sales, trafficking or transportation, it is crucial to seek post-conviction relief before filing for any immigration benefit.
Contact Us Today
Our immigration law firm handles complex immigration matters that involve criminal issues. If you are seeking an immigration benefit, and have concerns regarding being found inadmissible, contact our law office today.