Cite as 25 I&N Dec. 317 (BIA 2010) Interim Decision #3692
317
Matter of Jose CASILLAS-TOPETE, Respondent
File A074 801 673 – Tucson, Arizona
Decided August 24, 2010
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An alien is removable under section 237(a)(1)(A) of the Immigration and Nationality Act,
8 U.S.C. § 1227(a)(1)(A) (2006), as one who was inadmissible at the time of entry
or adjustment of status pursuant to section 212(a)(2)(C) of the Act, 8 U.S.C. § 1182(a)(2)(C)
(2006), where an appropriate immigration official knows or has reason to believe that the
alien is a trafficker in controlled substances at the time of admission to the United States.
Matter of Rocha, 20 I&N Dec. 944 (BIA 1995), modified.
FOR RESPONDENT: Vikram K. Badrinath, Esquire, Tucson, Arizona
FOR THE DEPARTMENT OF HOMELAND SECURITY: Richard A. Phelps, Assistant
Chief Counsel
BEFORE: Board Panel: FILPPU, PAULEY, and GREER, Board Members.
GREER, Board Member:
In a decision dated August 3, 2007, an Immigration Judge terminated the
removal proceedings against the respondent. The Immigration Judge found
that the Department of Homeland Security (“DHS”) failed to establish that the
respondent is removable under section 237(a)(1)(A) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(1)(A) (2006), as an alien who was
inadmissible at the time of entry pursuant to section 212(a)(2)(C) of the Act,
8 U.S.C. § 1182(a)(2)(C) (2006), because the examining immigration officer
did not know or have reason to believe that the respondent was a controlled
substance trafficker. The DHS has appealed from that decision. The appeal
will be sustained, and the record will be remanded to the Immigration Judge
for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent, a native and citizen of Mexico, was admitted to the
United States in February 1998 with a border crossing card. On March 28,
2002 he adjusted to the status of lawful permanent resident based on a visaCite as 25 I&N Dec. 317 (BIA 2010) Interim Decision #3692
318
petition filed by his United States citizen spouse. On September 12, 2005, the
respondent was convicted in Arizona of facilitation of the unlawful
transportation of marihuana for sale. He was sentenced to 3 years of probation
and was thereafter detained by the DHS. A Notice to Appear (Form I-862)
was issued on September 28, 2005, charging that the respondent was
deportable as an alien who had been convicted of both a crime involving moral
turpitude and a controlled substances violation.
On October 11, 2005, the respondent was released from DHS custody.
Apparently he left the country, because he was later admitted to the
United States as a returning lawful permanent resident on August 6, 2006. The
DHS then withdrew the original charges. Another charge was lodged under
section 237(a)(1)(A) of the Act based on the respondent’s alleged
inadmissibility under section 212(a)(2)(C) at the time of his August 2006
admission. In support of the lodged charged, the DHS alleged that the
respondent was apprehended on June 22, 2005, attempting to flee a Border
Patrol checkpoint while driving a vehicle that he knew contained 40.65 pounds
of marihuana. That apprehension was the basis for the respondent’s 2005
conviction.
Citing Matter of Rocha, 20 I&N Dec. 944 (BIA 1995), the Immigration
Judge found that the examining immigration officer at the port-of-entry
on August 6, 2006, did not know or indicate a reason to believe that the
respondent was an illicit trafficker in a controlled substance at the time he was
inspected and admitted to the United States. The Immigration Judge
concluded that the respondent could not be found removable by reason
of being inadmissible as a suspected drug trafficker at entry without a showing
that the particular examining officer who inspected him knew or suspected that
he was a trafficker when he applied for admission.
II. ISSUE ON APPEAL
The principal issue on appeal is whether the Immigration Judge correctly
determined that section 212(a)(2)(C) of the Act, as currently written, requires
that the particular examining immigration officer had a “reason to believe” that
the respondent was an illicit trafficker of controlled substances at the time
of admission.
III. ANALYSIS
A. Statutory History
In Matter of Rocha, 20 I&N Dec. 944, we considered whether an alien
could be found deportable under former section 241(a)(1)(A) of the Act,Cite as 25 I&N Dec. 317 (BIA 2010) Interim Decision #3692
1 Former section 241(a)(1)(A) was subsequently recodified at section 237(a)(1)(A) of the
Act.
319
8 U.S.C. § 1251(a)(1)(A) (Supp. V 1993),1
as one who was excludable
at the time of entry pursuant to section 212(a)(2)(C) of the Act, 8 U.S.C.
§ 1182(a)(2)(C) (Supp. V 1993), when the inspecting immigration officer
did not know or have reason to believe that the alien was an illicit trafficker
in a controlled substance. At that time, section 212(a)(2)(C) read as follows:
Any alien who the consular or immigration officer knows or has reason to believe
is or has been an illicit trafficker in any such controlled substance or is or has been a
knowing assister, abettor, conspirator, or colluder with others in the illicit trafficking
in any such controlled substance, is excludable.
(Emphasis added.)
In Matter of Rocha, the record demonstrated that the inspecting
immigration officer who admitted the alien at the port-of-entry did not then
“know” or articulate a “reason to believe” that he was a trafficker. Section
241(a)(1)(A) of the Act provided for the deportation of an alien who was
excludable “at the time of entry,” and section 212(a)(2)(C) correspondingly
provided for the exclusion of an alien who the examining officer “knows
or has reason to believe is or has been an illicit trafficker.” We concluded that
“the particular examining officer who inspected the respondent must
in fact have known or suspected that the respondent was a trafficker at the time
of his application for admission.” Matter of Rocha, 20 I&N Dec. at 946.
We observed that it logically followed from the language employed in sections
241(a)(1)(A) and 212(a)(2)(C) that “the examining officer’s knowledge
or suspicion that an alien is a trafficker must be contemporaneous with the
alien’s application for admission.” Id.
Section 212(a)(2)(C) of the Act has been revised subsequent to our decision
in Matter of Rocha. Specifically, in 1999, Congress amended section
212(a)(2)(C) to read as follows:
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 102 of the Controlled Substances Act (21 U.S.C.
802)), 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 . . .
is inadmissible.
Intelligence Authorization Act for Fiscal Year 2000, Pub. L. No. 106-120,
§ 809, 113 Stat. 1606, 1632 (effective Dec. 3, 1999) (emphasis added).Cite as 25 I&N Dec. 317 (BIA 2010) Interim Decision #3692
320
Several years after that amendment, which made reference to the Attorney
General in place of an immigration officer, Congress enacted additional
legislation that impacted section 212(a)(2)(C) by extending the reference
regarding the Attorney General to include the Secretary of Homeland Security.
Homeland Security Act of 2002, Pub. L. No. 107-296, § 1517, 116 Stat. 2135,
2311 (enacted Nov. 25, 2002) (codified at 6 U.S.C. § 557 (2006)). In the wake
of these statutory changes, we find that section 212(a)(2)(C) of the Act should
be read to include any alien who the consular officer, the Attorney General,
or the Secretary of Homeland Security knows or has reason to believe is or has
been an illicit trafficker in any controlled substance.
B. Impact of Changes to Section 212(a)(2)(C) of the Act
The amendment to section 212(a)(2)(C) striking the term “immigration
officer” and inserting “Attorney General” requires us to address congressional
intent and the impact on our decision in Matter of Rocha, 20 I&N Dec. 944.
In reaching our conclusion in that case, we specifically observed the
well-settled rule that in interpreting the provisions of the Immigration and
Nationality Act, the plain meaning of the words used in the statute should
be applied. Id. at 946 (stating that “there is a ‘strong presumption that
Congress expresses its intent through the language it chooses’”) (quoting INS
v. Cardoza-Fonseca, 480 U.S. 421, 432 n.12 (1987)). If the statutory terms
do not constitute a plain expression of congressional intent on their face,
we must supply a reasonable interpretation of the language. See Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-44 (1984).
The rules of statutory construction dictate that we take into account the design
of the statute as a whole. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291
(1988).
This case addresses whether the respondent can be found removable
by reason of being inadmissible as a suspected drug trafficker at entry when
the examining immigration officer did not know or indicate a reason
to believe that the respondent was an illicit trafficker in a controlled substance.
Here, DHS officers knew of the respondent’s drug trafficking activity prior
to the time he sought admission to the United States on August 6, 2006.
He had already been placed in removal proceedings related to his
controlled substances conviction, which were ongoing at the time he left
the United States.
Applying our decision in Matter of Rocha to the amended statutory
language of section 212(a)(2)(C) of the Act would frustrate Congress’ intent
by foreclosing a charge of removability in cases where an appropriate
immigration official had “reason to believe” that the alien was an illicit
trafficker in drugs based on information that was available and known by the
official prior to, or contemporaneous with, the alien’s admission to theCite as 25 I&N Dec. 317 (BIA 2010) Interim Decision #3692
321
United States. Unlike the statute construed in Matter of Rocha, which referred
to an immigration officer, the current version of section 212(a)(2)(C) would
not reasonably be construed to require the Attorney General or the Secretary
of Homeland Security to have personal knowledge that an alien is a suspected
drug trafficker. The implementation of section 212(a)(2)(C), like that of many
other provisions of the Act, is delegated to appropriate immigration officials
acting on behalf of the Attorney General or the Secretary. Therefore it is not
relevant under the terms of the statute that the inspecting immigration officer
does not have access to information regarding the alien’s trafficking if that
information is known to other immigration officials. Thus, as long as the
information was demonstrably known to an appropriate immigration official
when the admission occurred, it can be relied on to sustain the charge.
Here, the DHS had already placed the respondent in proceedings as a result
of his conviction, which forms the basis for the ground of removal under
section 212(a)(2)(C) of the Act. Thus, the Immigration Judge could rely on the
conviction to deem the respondent a suspected trafficker in controlled
substances at the time he entered the United States. We emphasize, as we did
in Matter of Rocha, that the conduct must predate or occur contemporaneously
with the alien’s admission and be demonstrably known or suspected
by appropriate officials who are delegates of the Attorney General or the
Secretary of Homeland Security.
IV. CONCLUSION
Our decision in Matter of Rocha has been superseded by the statutory
changes to section 212(a)(2)(C) of the Act and requires modification. Based
on the amended language of that section, we hold that an alien is removable
under section 237(a)(1)(A) of the Act as one who was inadmissible at the time
of entry or adjustment of status pursuant to section 212(a)(2)(C) where
an appropriate immigration official knows or has reason to believe that the
alien is a trafficker in controlled substances at the time of admission to the
United States.
Accordingly, the appeal will be sustained and the record will be remanded
to the Immigration Judge to further address the charge that the respondent
is removable under section 237(a)(1)(A) of the Act for having been
inadmissible at the time of his entry pursuant to section 212(a)(2)(C).
ORDER: The appeal of the Department of Homeland Security is sustained.
FURTHER ORDER: The decision of the Immigration Judge is vacated,
and the record is remanded to the Immigration Judge for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.