No criminal conviction is needed for immigration consequences, if Consular Officer or Attorney General, has reason to believe alien is involved in illicit trafficking of controlled substance. Chavez-Reyes vs. Holder

Title 8 U.S.C. §1182(a)(2)(C)(i) defines the following class of inadmissible aliens:

Any alien who the consular officer or the Attorney General knows or has reason to believe-

(i) is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 802 of Title 21), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical or endeavored to do so[.]

Any alien who is convicted of an aggravated felony at any time after admission is deportable. 8 U.S.C. §1227(a)(2)(A)(iii).

Analysis of Chavez Reyes v. Holder

In 1989, Petitioner, Manuel Chavez-Reyes, was driver and sole occupant of a truck containing almost 900 pounds of cocaine valued at $28.7 million, in hidden compartment. Police officers pulled the truck over, found the drugs, and arrested petitioner. He pleaded guilty to possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1) which was later overturned by the 9th Circuit court, for lack of officers’ sufficient suspicion to make a traffic stop. United States v. Chavez-Reyes, 921 F.2d 281 (9th Cir. 1990) (Unpublished decision).

In immigration proceedings, the government charged petitioner with removability under 8 U.S.C. § 1182(a)(2)(C)(i) based on “reason to believe” that Petitioner engaged or assisted in illicit trafficking of drugs. (Lopez-Molina vs. Ashcroft, 368 F.3d 1206, 1208-09(9th Cir. 2004).

In this case BIA held that there was “reason to believe” that Petitioner had engaged or assisted in illicit trafficking for two primary reasons. First, the BIA held that circumstantial evidence strongly suggested that Petitioner knew that the drugs were in the truck. The BIA reasoned that the amount of cocaine was “too large for personal use, and the quantity and high value of the cocaine suggests that (Petitioner) was either a drug trafficker himself, or was trusted by the drug traffickers and that he knew that the drugs were in the vehicle.” Second, the BIA, held that Petitioner’s guilty plea also supported its conclusion. The BIA reasoned that, although Petitioner’s conviction “was subsequently overturned due to a finding that the agents lacked legal reasonable cause to stop the truck , Petitioner was driving, this does not change the fact that Petitioner plead guilty to engaging in drug trafficking.

As a general rule, a voluntary guilty plea to criminal charges is probative evidence that the petitioner did, in fact, engage in the charged activity, even if the conviction is later overturned for a reason unrelated to voluntariness, considering other circumstantial  evidence. The court concluded that the BIA’s “reason to believe” finding, is supported by substantial evidence. The large amount of drugs in a vehicle over which Petitioner had sole control, couple with his guilty plea, strongly suggests that Petitioner indeed knew that his truck contained drugs.

To conclude, if the Attorney General , has a reason to believe that an alien is engaged in illicit controlled substance, based upon the substantial circumstantial evidence, an actual conviction for illicit drug trafficking, is not needed to remove an alien after admission.

If you need assistance with immigration matter, please call at (310) 325-9012



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