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The Ninth Circuit held that a guilty plea to possessing a controlled substance with intent to distribute may be considered in determining whether there is reason to believe the noncitizen is a drug trafficker--even if the conviction is later overturned, at least if the conviction is overturned for a reason unrelated to the voluntariness of the plea.

Here, the noncitizen's conviction was overturned because the police did not have reasonable suspicion to conduct the traffic stop that led to his arrest. Nonetheless, the court held the plea--along with circumstantial evidence in the case--could be considered to establish the noncitizen's inadmissibility for reason to believe he had engaged in drug trafficking.

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The Board first held that an immigration judge must first determine whether to terminate an asylee's asylum status before adjudicating charges of inadmissibility or deportability. The Board remanded because the immigration judge did not do that here. Before remanding, however, the Board addressed whether he was properly charged with inadmissibility and issues regarding V-X-'s guilty plea to charges that he delivered marijuana, conspired to deliver marijuana, and knowingly kept a vehicle for the purpose of keeping or selling controlled substances in violation of sections 333.7401(2)(d)(iii), 750.157a, and 333.7405(1)(d) of the Michigan Compiled Laws, respectively.

The Board rejected V-X-'s argument that as a person granted asylum he is not subject to charges of inadmissibility under section 212 of the Immigration and Nationality Act (INA), but rather must be charged with deportability under section 237. He had entered the U.S. on parole and obtained asylum in the U.S. The Board held that neither parole nor grant of asylum amount to an admission to the United States, which it has held is limited to inspection and admission at a port of entry or adjustment to permanent resident status. Since he was not "admitted to" the U.S., the Board held the grounds of inadmissibility applied.

The Board next rejected V-X-'s argument that being designated a "youthful trainee" under section 762.11 of the Michigan Compiled Laws was not a conviction and thus did not make him inadmissible for conviction of a crime involving moral turpitude or a controlled substance offense. It held the youthful trainee designation did not correspond to a civil determination of juvenile delinquency under the Federal Juvenile Delinquency Act (FJDA), so the guilty plea amounted to a conviction under the INA. Unfortunately for a published decision like this one, though, the Board did not explain why the youthful trainee designation did not correspond to the FJDA. It just cited Uritsky v. Gonzales, 399 F.3d 728, 734–35 (6th Cir. 2005). The explanation would not have taken to long; it is simply this: a youthful trainee has a conviction until it is vacated after a period of good behavior and rehabilitation, while a juvenile delinquent under the FJDA never has a criminal conviction because it is a civil status finding.

The Board also noted the potential applicability of the recent Supreme Court decision in Moncrieffe to the immigration judge's finding that V-X- was ineligible for asylum or withholding of removal for conviction of an aggravated felony and particularly serious crime. Specifically, V-X-'s conviction would not be an aggravated felony if the statutes he was convicted of violating potentially could involve gratuitous distribution of a small amount of marijuana.

Interestingly, the Board also noted that Moncrieffe should be considered in assessing whether V-X- would be eligible for adjustment of status as an asylee under INA section 209(b) with a section 209(c) waiver of inadmissibility. An asylee is not eligible to adjust if he is inadmissible under section 212(a)(2)(C) for reason to believe he has been involved in drug trafficking, which does not require a conviction. Thus, the Board is indicating that gratuitous distribution of a small amount of marijuana may not trigger 212(a)(2)(C) inadmissibility.

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The Ninth Circuit held that the Board of Immigration Appeals improperly engaged in fact-finding when it reversed the immigration judge's determination that the petitioner was not inadmissible under 8 U.S.C. § 1182(a)(2)(C) for knowing participation in drug trafficking. The petitioner had attempted to enter the U.S. in his employer's truck on instructions to get parts for the business and to have the tires changed on the truck. Inspectors at the port of entry found marijuana in the gas tank and charged him with inadmissibility (no criminal charges were filed). The immigration judge found the petitioner testified credibly that he had not known about the drugs. The Board reversed that decision based on testimony by one of the Customs and Border Protection officers who conducted the inspection. The testimony consisted of estimates and proffered opinion, but the immigration judge had declined to make findings of fact based on that testimony. By making findings of fact in the first place, the Board acted contrary to the limits on its authority under the regulations. The court held the Board should have remanded to the immigration judge for additional findings of fact.

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