Wednesday, January 29, 2014

Reason to Believe: The All-Encompassing Drug-Related Ground for Removability


Yesterday, the President delivered his annual State of the Union address to a joint session of the U.S. Congress, to the American People, and to the world. As anticipated and as shown below, he referenced Comprehensive Immigration Reform ("CIR"):

NBC's Recording of State of the Union Address, January 28, 2014
Some may be disappointed by such a short and superficial discussion of what they believe to be an extremely important issue, but others may see the political importance of the President's attempt not to interfere with internal discussions within the Republican Party, which as shown below by the comments of Senator Rand Paul, may be willing to have CIR pass this year:

NBC's Meet the Press, January 26, 2014

Both videos and the apparent seriousness of the speakers within them give reason to believe that CIR will be passed this year, or at least has a better chance of passing this year than it did last year.

However, until then, a different "reason to believe" will continue to play a larger role in United States Immigration Law. I'm not talking about the "reason to believe" basis that has plagued the provisional-unlawful-presence-waiver-application adjudications for the past several months, an issue that the United States Department of Homeland Security ("DHS") appears to have corrected at the end of last week by no longer automatically denying those applications for convictions that do not render one inadmissible. Instead, I'm talking about the "reason to believe" ground for inadmissibility regarding drug traffickers.

Typically, in removal proceedings before any of the various United States Immigration Courts nationwide, the United States Department of Homeland Security ("DHS") would need to prove that a foreign national has been convicted of or at least has admitted to the elements of a controlled-substances offense, or drug crime, to establish that foreign national's removability. Many foreign nationals believe that simply by DHS's not having such proof requires that the immigration judge rule that DHS has not met its burden of proof, but DHS has an escape clause: reason to believe.

Under the reason-to-believe ground for inadmissibility, DHS does not need to prove that a conviction exists or even that the foreign national admitted to the elements of a drug crime, but rather may simply prove that there are grounds to conclude that the foreign national is involved in dealing drugs. The decision earlier this week by the U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), which is the federal appeals court that hears petitions for review from the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within the Western states including California, Nevada, Arizona, and Washington, exemplifies this all-encompassing escape clause. In Chavez-Reyes v. Holder, the Ninth Circuit ruled that a man, whose drug-trafficking guilty plea and consequent federal conviction were actually overturned on appeal in his criminal case because of the unreasonableness of the traffic stop by the police officers who discovered the drugs within his car, was still properly found by the BIA to be inadmissible to the U.S. solely based on the reason to believe he is a drug trafficker.

The Ninth Circuit supported its position by finding that the overturning of the man's conviction on appeal in his criminal case, while resulting in the man's not having the conviction at all, had nothing to do with the voluntariness of his initial guilty plea, meaning that he indeed still admitted to being a drug trafficker in federal court even if he ultimately was not convicted of such an offense. Additionally, the Ninth Circuit found that the BIA did not rely on the man's guilty plea alone in making its determination but also referenced the other relevant facts, including the 900 pounds of cocaine found in his car.

The decision gives reason to believe the Ninth Circuit is starting to become tougher on only serious criminal offenders. For example, in Aguilar-Turcios v. Holder, the Ninth Circuit held last week that a Honduran man's conviction under the Uniform Military Code of Justice for using a government computer to view pornography does not constitute an Aggravated Felony and therefore does not fall within the category of crimes that the U.S. Congress found to be of the most egregious to the extent that they bar almost all forms of immigration-related relief. The impact of the Aguilar-Turcios decision is easily trumped by the absurdity of the case, but absent the passage of CIR there is reason to believe that the Ninth Circuit will find ways to save foreign nationals convicted of non-violent, non-weapons, non-drug, and non-child-sex crimes at least from deportation, if not from embarrassment.

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