RICO
16 I. & N. Dec. 181 (1977)
Rule of Law:
An alien may be found to be an 'illicit trafficker' in drugs under section 212(a)(23) of the Immigration and Nationality Act, rendering them excludable from the United States, even without a criminal conviction, if an immigration officer knows or has reason to believe they have engaged in such trafficking, and a single instance of knowingly attempting to smuggle a large quantity of a controlled substance like marihuana is sufficient to meet this standard.
Facts:
- Rico, a 26-year-old married alien and citizen of Mexico, was admitted to the United States for permanent residence on September 26, 1966.
- Rico subsequently assumed commuter status, traveling from his residence in Agua Prieta, Mexico, to his employment in Sierra Vista, Arizona, for approximately two and a half years prior to September 19, 1975.
- On September 19, 1975, Rico applied for admission to the United States at the Douglas, Arizona port of entry while driving a 1965 Ford Ranchero vehicle.
- Fred D. Powell, a U.S. Customs Inspector, and Arthur R. Waddell, a Border Patrol Agent, inspected Rico's vehicle and discovered 77 bricks, totaling 162 pounds, of marihuana in concealed compartments.
- Customs Inspector Powell and Border Patrol Agent Waddell observed Rico crossing the border in the same Ford Ranchero on a number of days prior to September 19, 1975.
- During interrogation by Drug Enforcement Administration special agents, Rico initially claimed he did not know the vehicle contained marihuana and that a person in Mexico he only knew as 'Chava' had lent him the car.
- Rico later changed his story, admitting to DEA special agents that he was offered $200 to drive the Ford Ranchero from Mexico to a specific location in Douglas, Arizona, and that he knew 'something' was in the truck, though not exactly what.
Procedural Posture:
- On September 19, 1975, Rico was detained for an exclusion hearing under section 212(a)(23) of the Immigration and Nationality Act on the ground that he had attempted to smuggle marihuana.
- Rico was subsequently paroled into the United States pending criminal prosecution for violation of 21 U.S.C. 952(a) and 960(a)(1), and his exclusion hearing.
- A criminal complaint was filed against Rico in the United States District Court for the District of Arizona on September 19, 1975, alleging importation of 162 pounds of marihuana.
- On October 9, 1975, the United States District Court dismissed the criminal complaint against Rico, though the reason for dismissal is not shown in the record.
- An initial exclusion hearing was conducted by Immigration Judge Jay Segal on December 8, 1975, followed by a continued hearing conducted by Immigration Judge Reece B. Robertson on February 11, 1976.
- The immigration judge found Rico inadmissible under section 212(a)(23) of the Act and ordered his exclusion and deportation from the United States.
- Rico appealed the immigration judge's order to the Board of Immigration Appeals.
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Issue:
Does an immigration officer have 'reason to believe' that an alien is an 'illicit trafficker' in marihuana, making the alien excludable under Section 212(a)(23) of the Immigration and Nationality Act, if the alien knowingly attempts to smuggle a large quantity of marihuana into the United States, even if no criminal conviction results?
Opinions:
Majority - Idilhollan, Chairman
Yes, an immigration officer has 'reason to believe' that an alien is an 'illicit trafficker' in marihuana, making the alien excludable under Section 212(a)(23) of the Immigration and Nationality Act, if the alien knowingly attempts to smuggle a large quantity of marihuana into the United States, even if no criminal conviction results. The Board found that Rico was excludable under section 212(a)(23) of the Act, which provides for exclusion if an immigration officer 'knows or has reason to believe' an alien is or has been an illicit trafficker in drugs. A criminal conviction for a drug offense is not a prerequisite for exclusion under this provision. The Board rejected Rico's argument that marihuana is not included in the 'illicit trafficker' provision of section 212(a)(23), citing legislative history from the 1960 amendment (P.L. 86-648, 74 Stat. 504, sec. 9) which explicitly added marihuana to related immigration laws due to congressional concern, and recent Ninth Circuit precedent (Harnid v. INS, No. 75-1110) affirming the inclusion of marihuana derivatives. The Board also found Rico's testimony at the hearing regarding his innocent involvement to be not credible, pointing to inconsistencies with his pre-hearing statements and the testimony of U.S. Customs Inspector Powell and Border Patrol Agent Waddell. Specifically, Rico initially denied knowledge of the marihuana and claimed the vehicle was loaned to him for one day, but later admitted he was offered $200 to drive the vehicle and knew 'something' was concealed within it. The testimony of the officers also contradicted his claim of having driven the car for only one day. Given Rico's lack of credibility, his offer to provide information on other drug traffickers, and his admission of being offered money to transport the vehicle, the Board concluded there was sufficient reason to believe he knew or had reason to know marihuana was concealed in his automobile. The Board held that a single attempt at smuggling, particularly involving 162 pounds of marihuana, is sufficient to classify Rico as a 'knowing and conscious participant or conduit' and thus an 'illicit trafficker' under the Act. They inferred that such a large quantity was not for personal use and was intended for 'traffic,' citing Matter of P—, 5 I. & N. Dec. 190 (BIA 1953). They further clarified that the 'Fleuti' doctrine, which provides for non-meaningful departure in some cases for returning residents, does not apply to alien commuters like Rico, and even if he were not a commuter, his marihuana smuggling activity would preclude its application. The administrative standard of proof, requiring 'reasonable, substantial, and probative evidence,' differs from the 'beyond a reasonable doubt' standard in criminal proceedings, making the dismissal of criminal charges irrelevant to the exclusion determination.
Analysis:
This case clarifies the broad scope of 'illicit trafficker' under Section 212(a)(23) of the Immigration and Nationality Act, confirming that a criminal conviction is not necessary for exclusion. It establishes that even a single knowing attempt to smuggle a significant quantity of marihuana can trigger this ground of inadmissibility, underscoring the BIA's power to make independent factual determinations. The decision reinforces that the Fleuti doctrine, which can protect returning permanent residents from certain grounds of inadmissibility, does not apply to alien commuters or individuals engaged in serious drug smuggling. Future cases will likely rely on this precedent to exclude aliens involved in drug activities, emphasizing the administrative standard of proof over criminal court outcomes.
