ICE has shown lately that it is becoming more willling to use any tool at its disposal to impact a removal proceeding.   One such trend has been the  notable increase in charging under section 212(a)(2)(C)(i) of Immigration & Nationalty Act.  This charge of removal or deportation is known by its standard, a “reason to believe” that an individual is knowingly involved somehow in drug trafficking.  This legal charge gives the government a powerful tool to try to keep a person in custody and bar him or her from staying in the United States.

In the bond and detention context, it is an easy charge for the government to bring because the burden is on Respondent to prove a negative.  A person seeking a bond must prove that the government is “substantially unlikely” to prevail on the charge.  If Respondent does not prevail on her burden, she is subject to mandatory detention. So, the stakes are high, and it is becoming increasingly clear that the government will test a case even when the underlying allegation is simple drug possession.  A person applying to stay in the United States, either before USCIS or the immigration court, also has the burden of proving that there is no basis for this allegation.

While neither the Board of Immigration Appeals nor the Immigration & Nationality Act define the “reason to believe” standard, the determination of whether there is reason to believe that a person participated in drug trafficking requires reasonable, substantial and probative evidence. Cuevas v. Holder, 737 F.3d 972, (5th Cir. 2013).  A criminal conviction is not necessary to meet the reason to believe standard.  However, most major “reason to believe” cases do in fact involve criminal convictions for drug trafficking, or transportation of drugs internationally. See Matter of Rico,16 I. & N. Dec. 181 (BIA 1977) (the Board upheld a finding that an alien was excludable under the “reason to believe” standard after he was found with 162 pounds of marijuana in his car at the US-Mexico border despite the fact that the criminal charges against him were dropped.); Matter of Favela,16 I&N Dec. 753, 754-56 (BIA 1979) (the Board upheld a finding that an alien was excludable based on his admission of marijuana smuggling despite the fact that he was convicted of an offense under the Federal Youth Corrections Act rather than for a controlled substance offense.)

Instead, the reason to believe standard is likened to a “probable cause” standard, which is defined in the criminal context as “a reasonable ground to suspect that a person has committed or is committing a crime. Therefore, in the absence of any criminal probable cause statements filed relating a person to a drug sale, a person in custody should argue that the government is substantially unlikely to prevail on the charge. 

Where the government supports the charge with nothing more than arrest reports, Respondent should resist.  Matter of Garces, 611 F.3d 1337 (11th Cir. 2010), cautions that an adjudicator should not base a finding of inadmissibility solely on the conclusions of other evaluators. Likewise, in Arreguin de Rodriguez, 21 I. & N. Dec. (BIA 1995) the Board determined that it was, “hesitant to give substantial weight to arrest reports, absent a conviction or corroborating evidence of the allegations”.  Furthermore, if the judge is to consider the police reports in a reason to believe analysis, a person’s conduct at the time of arrest should be taken into consideration.

The most important requirement to sustain a reason to believe charge, however, is the element of knowledge. The charge requires that the person is or has been a knowingly assister, abettor, conspirator, or colluder with others in the illicit trafficking in any controlled substance as defined in 21 U.S.C. section 802”.  Establishing the person’s credibility and lack of knowledge becomes paramount.  Testimony may be necessary to establish the person’s state of mind, and if a person invokes her fifth-amendment right because the state has not decided whether to charge a person, she may be unable to testify adequately to her knowledge of any scheme.

The “reason to believe” charge invites the government to try to remove someone based on untested allegations.  This removal charge is often a consequence of being in the wrong place or with the wrong person at the wrong time.  Detention issues, and ultimately whether someone can stay in the United States, requires a thorough examination of all aspects of a case.  It also entails collaboration with a person’s criminal defense attorney in some cases.  Wilson Law Group is ready to help your loved one resist overcharging and baseless allegations that could keep a person in custody and bar him or her for life from the United States.