Immigration Article of the Day: Probable Cause Deportation by Dorien Ediger-Seto

Abstract

Immigrants increasingly face deportation and visa denials due to dismissed charges and unverified reports. Unlike the more commonly discussed conviction-based grounds of inadmissibility and removability, the reason-to-believe class of inadmissibility grounds require no conviction, or even admission of guilt, to trigger immigration consequences. They simply require that the Attorney General or Department of Homeland Security have a “reason-to-believe” that certain types of criminal activity have occurred: a low evidentiary standard, often equated to probable cause. In these cases, just the allegation of certain crimes—supported by anything from an unverified Border Patrol report that drugs were found in a non-citizen’s car to a record of indictment from a criminal case that was ultimately dismissed by a state or federal criminal court—can trigger removal proceedings, or bar relief from deportation, even where the non-citizen is a long-time green card holder or has significant ties to the United States.

This Article presents the first comprehensive study of how the reason-to-believe inadmissibility grounds are adjudicated in removal proceedings. Broadly, it theorizes that immigration adjudicators defer to criminal system outputs in certain areas of the reason-to-believe removal proceeding and disclaim them in others. The Article then analyzes how this dynamic operates in removal proceedings centered on the most commonly cited of the reason-to-believe statues, the drug trafficking ground, through qualitative review of approximately 100 administrative and federal court appellate decisions. It finds that the reason-to-believe adjudication scheme relies on a low standard and eroded evidentiary and constitutional protections to discard criminal court outputs favorable to non-citizens, even as it privileges criminal law enforcement accounts of an alleged crime. Facilitated by a lack of substantive judicial review, the scheme refuses to meaningful engage with innocence claims while imposing the heavy cost of deportation. By selectively deferring to and disregarding criminal court outputs and adjudication values, the reason-to-believe statutes impede truth-finding, undermine the integrity of the immigration system, and have the potential to undermine the rule of law and perception of consistency in the civil and criminal legal systems.

KJ