Conviction Unnecessary to be Inadmissible for Reason to Believe Drug Trafficker

Cuevas v. Holder, No. 13-60150 (Dec. 10, 2013) (Jolly, Smith, Clement)

Cuevas sought review of the Board of Immigration Appeals’ decision concluding that he was inadmissible pursuant to 8 U.S.C. § 1182(a)(2)(C) because there was reason to believe he was a drug trafficker.  The immigration judge (IJ) initially concluded that Cuevas was a drug trafficker because agents found nearly 24 kilograms of cocaine concealed in the rear panel of Cuevas’ car when he was reentering the United States from Mexico, he bought two weeks before, and he had exclusive control over the vehicle except for a period of 60 and 90 minutes while his headlight was fixed at a mechanic’s shop in Mexico.  The BIA remanded, instructing the IJ to determine whether the DHS had “proven by clear, unequivocal, and convincing evidence” that there exists reason to believe that Cuevas was a drug trafficker.

On remand, the IJ relied on additional evidence to conclude Cuevas was a drug trafficker: he was driving his own car, there were fresh weld marks on the rear quarter panel, and the quantity of cocaine indicated illegal trafficking.  The IJ gave very little weight to Cuevas’ testimony that he did not know the cocaine was there and had not noticed the modifications made to his car to hide the cocaine.  The BIA approved of the IJ’s decision the second time around.

On review, the panel affirms the BIA’s decision, joining the other circuits that have held that a conviction is unnecessary to be inadmissible pursuant to § 1182(a)(2)(C).  The panel does not determine the exact measure of evidence needed, however.  The First Circuit requires evidence equivalent to a probable cause standard, and the Ninth Circuit requires a greater showing of reasonable, substantial, and probative evidence.  The panel concludes that the DHS meets either standard in this case.  As such, the panel lacks jurisdiction to consider the petition for review and dismisses the case.

Conspiracy to Possess Drugs on Aircraft With Intent to Distribute Applies Extraterritorially

United States v. Lawrence, No. 12-20430 (Aug. 20, 2013) (Owen, Haynes, Lemelle)

Appellants challenged the application of 21 U.S.C. § 963 to these circumstances: they hired U.S. citizens in the United States to fly to South America, obtain drugs, and then fly with those drugs to the United Kingdom.  The panel finds that 21 U.S.C. § 959(b)(2), which prohibits the possession of illicit substances with intent to distribute either by a U.S. citizen on an aircraft or on an aircraft registered in the United States, applies extraterritorially since that was Congress’s intent and such application is constitutional. 

The panel reaches this decision by analyzing the statutory language, justifications for overcoming the presumption against extraterritorial application of U.S. statutes in the context of drug smuggling laws, and international law principles including that a country can supervise and regulate the acts of its citizens outside of its territories and the protective theory that a country can enforce criminal laws wherever if the act threatens the country’s security or directly interferes with its governmental operations.  The panel also concluded that Congress had the authority to enact § 959(b) with extraterritorial application under the Necessary and Proper Clause as necessary to implement its treaty-making power.  That said, the panel seemed comfortable with its decision because the facts of this case involved actions taken in the United States (coordination, hiring of mules, and ultimate receipt of money) that resulted in the drugs being possessed by U.S. citizens on a flight from South America to the United Kingdom.   Perhaps a case without that extra hook—which is not statutorily required—would have a different result or at least cause a court more pause.