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How to argue asylum eligibility when your client is listed as a Significant Foreign Narcotics Trafficker

The Office of Foreign Assets Control, OFAC, can wreak havoc on an individual who seeks political asylum in the United States. Once an individual is listed or designated on the OFAC list, they may be barred from asylum on the basis that there is reason to believe that the individual has committed a serious non-political offense pursuant to INA §208(b)(2)((A)(iii). There is an emerging new area of political asylum law that is developing as a result of the out of control drug cartel and gang violence that is currently plaguing Mexico. What becomes of family members of narco-traffickers who become cooperators after they have been extradited to the United States for prosecution? The OFAC list has long tentacles that often snares family members of narco-traffickers to assure that the assets of such illegal activity are paralyzed.

If an attorney represents a family member of a cooperating witness in a narco-trafficking prosecution a well-founded fear of persecution exists for the family member based on retribution that would result from such cooperation.
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[1] Mr. Fasano is a Partner in the Law Firm Youman, Madeo & Fasano, LLP. He is recognized as a national authority on immigration law and lectures nationally and internationally on the subject of immigration law. Mr. Fasano has authored many published articles on immigration law and is attorney of record in several published Circuit Court opinions throughout the United States. He is the current Chair of the Federal Bar Association's Immigration Law Section. Mr. Fasano may be contacted via www.ymflaw.com.

It would appear that there is no issue with respect to the danger that the family member would face should the individual be forced to return to Mexico. The particular social group to which the individual would belong is a family member of a cooperating witness in a narco-trafficking prosecution. However, despite the credibility and burden of proof requirements being satisfied regarding the well-founded fear that the family member has, United Citizenship and Immigration Services, USCIS, will likely issue a Notice of Intent to Deny the application based on its conclusion that there is reason to believe the commission of a serious nonpolitical offense under INA §208(b)(2)((A)(iii) if the asylum applicant appears on the OFAC list as a Significant Foreign Narcotics Trafficker, SFNT. Is your client's photo on the "family tree" of an OFAC list and her designation as an SFNT the death knell to the asylum claim? No. Case law and the manner in which an individual meets the criteria to make the distinguished list favor a rebuttal to a Notice of Intent to Deny on the "reason to believe" ground of ineligibility.

Guilt by association:

A family member will be listed by OFAC as an SFNT based solely on their relationship with the narco-trafficker, who would likewise appear on the OFAC list as a SFNT. You must determine whether your client has ever been accused by the United States government, the Mexican government or any other government in the world as a drug trafficker. Indeed, determine the manner of your client's entry into the United States. Was your client paroled into the United States by a government agency, such as the Drug Enforcement Agency, DEA, on account of the risk to her life and the life of her children because of their relationship to the cooperating narco-trafficker? If this is the case or even if the individual entered as a tourist, argue that at no time was there a claim by the Department of Homeland Security, DHS, that your client was inadmissible to the United States based on a reason to believe that she was involved in drug trafficking. See INA §212(a)(2)(C). Indeed, argue that none of the grounds of inadmissibility were applied to your client upon her parole or admission into the United States.

OFAC Designation Based on Control:

To be designated on the OFAC list mere control by an individual who also appears on the OFAC list is sufficient to be designated as an SFNT. The United States Department of Treasury states the following criteria is necessary in order to appear on the OFAC list:

As part of its enforcement efforts, OFAC publishes a list of individuals and companies owned or controlled by, or acting for or on behalf of, targeted countries. It also lists individuals, groups, and entities, such as terrorists and narcotics traffickers designated under programs that are not country-specific. Collectively, such individuals and companies are called "Specially Designated Nationals" or "SDNs." Their assets are blocked and U.S. persons are generally prohibited from dealing with them.

http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx (emphasis added).

As indicated in the cited section, there is no requirement that the applicant actually engaged in the prohibited conduct in order to appear on the OFAC list. The Board of Immigration Appeals has held that in order for an individual to be ineligible for asylum based on the commission of a serious nonpolitical offense under INA §208(b)(2)((A)(iii), there must be probable cause to believe that the individual committed the prohibited conduct. See Matter of E-A-, 26 I & N Dec. 1 (BIA 2012). In order to rebut the Notice of Intent to Deny determine whether it cites to a factual basis for its conclusion that there is probable cause to believe that the applicant engaged in drug trafficking. The mere reliance on the OFAC list falls far short of probable cause when appearance on the notorious list may be only because the individual is controlled by another individual appearing on the list.

The stigma of the OFAC list designation:

Family members who appear on the OFAC list suffer substantially from appearing on the list. Their reputation is destroyed and the applicant and her children suffer economically due to the financial freeze placed on all of her sources of economic support. The OFAC designation endangers the applicant's and her children's economic well-being. It would also appear to threaten them from receiving protection in the United States from the harm that she has credibly established will be occur to her and her children should they be forced to return to Mexico. There is no reasonable basis or legal cause to place the applicant on the OFAC list other than the fact that she is related to an individual appearing on the list. This is an example of guilt by association.

If there is no factual support that your client engaged in drug trafficking, argue that OFAC designated your client as an SFNT with no supporting evidence other than proof of her relationship to another SFNT, such as a marriage certificate. Being the wife or family member of an individual accused of being a drug trafficker does not "threaten the national security, foreign policy and economy of the United States." When arguing "guilt of association," it is important to note that despite the fact that OFAC designated your client as an SFNT no criminal charges of any kind have been brought against her by the United States or any other government in the world.

Congressional intent behind the Kingpin Designation Act:

The Foreign Narcotics Kingpin Designation Act was enacted because Congress found that there is a "national emergency resulting from the activities of international narcotics traffickers and their organizations that threatens the national security, foreign policy, and economy of the United States." 21 U.S.C. §1901. The Foreign Narcotics Kingpin Designation Act is codified at U.S.C. §§ 1901-1908 and 31 C.F.R. §§ 500.501-501.508.

The Foreign Narcotics Kingpin Designation Act provides definitions and defines "foreign person" as "any citizen or national of a foreign state or entity not organized under the laws of the United States, but does not include a foreign state." 21 U.S.C. §1907.

The Foreign Narcotics Kingpin Designation Act defines a "significant foreign narcotics trafficker" as "any foreign person that plays a significant role in international narcotics trafficking" as determined by, and publicly identified by, the President. Under the Act, at 21 U.S.C. §1901(a)(4) and (b), a Significant Foreign Narcotics Trafficker also must threaten the national security, foreign policy, and economy of the United States.

Criteria for an SFNT designation:

Despite appearing on the OFAC list, USCIS must be pressed to show how the applicant satisfied the definition of an SFNT at the time of the designation. Did your client play any role in international narcotics trafficking at the time of her designation or does she now? Here is where you want to press the point that no government in the world, including the United States Department of Justice, has ever charged the applicant with criminal conduct of any kind, much less drug trafficking. Accordingly, your client was not, and is not, a threat to the national security, foreign policy, and economy of the United States.

Think of the logic of being placed on the OFAC list and the failure to be prosecuted. The nature of the Kingpin Act renders it illogical to include an applicant on the OFAC list who has never been arrested for drug trafficking. If your client were engaged in any of the activity that meets the criteria for being placed on the OFAC list she would be prosecuted as a drug trafficker. The Kingpin Act explicitly states that it is Congress' desire to apply similar efforts against international narcotics traffickers worldwide. 21 U.S.C. §1901(a)(3) ("IEEPA was successfully applied to international narcotics traffickers in Colombia and based on that successful case study, Congress believes similar authorities should be applied worldwide."); see also H.R. Rep. No. 106-457 at 42 ("The legislation is based on the successful application of [IEEPA] against Colombian narcotics traffickers."). The House Conference Report observes that "[c]oordinated law enforcement efforts by the U.S. and Colombian Governments in support of these sanctions put the Cali Cartel kingpins out of business," and states that the Kingpin Act

is intended to follow up on the success of the Colombian SDNT [specially designated narcotics traffickers] precedent by applying similar U.S. Government authorities and resources against [SFNTs] around the globe-including, but not limited to, major narcotics traffickers and trafficking organizations based in Afghanistan, Bolivia, Burma, Colombia, Dominican Republic, Laos, Mexico, Pakistan, People's Republic of China, Peru, Russia, and Thailand.

Id. at 43.

The Kingpin Act authorizes the President to identify foreign persons whom he determines to be SFNTs. 21 U.S.C. §1903(b). The Act defines a SFNT as a "foreign person that plays a significant role in international narcotics trafficking." Id. § 1907(7). The Kingpin Act defines "narcotics trafficking" as "any illicit activity to cultivate, produce, manufacture, distribute, sell, finance, or transport narcotic drugs, controlled substances, or listed chemicals, or otherwise endeavor or attempt to do so, or to assist, abet, conspire, or collude with others to do so." 21 U.S.C. §1907(3). You must demonstrate that there is no evidence or probable cause to believe that your client engaged in any of the conduct that defines a "Kingpin."

Upon SFNT identification by the President, the Kingpin Act operates to block all assets subject to United States jurisdiction that are owned or controlled by the SFNT and all interests in such property. Id. § 1904(b). Perhaps OFAC believes that your clients assets are derived from drug trafficking activity attributable to her family member that is accused of drug trafficking. That does not mean that by definition she is a Kingpin or engaged in any illegal conduct. It would merely seek to tie up her assets. The Act generally prohibits United States persons as well as persons within the United States from engaging in any transaction with or dealing in any property or interests in property of SFNTs as well as from engaging in any transaction that evades or avoids the Act's prohibitions. Id. § 1904(c).

The Kingpin Act also authorizes the Secretary of the Treasury, in consultation with the Attorney General, the Director of Central Intelligence, the Director of the Federal Bureau of Investigation, the Administrator of the Drug Enforcement Administration, the Secretary of Defense, and the Secretary of State, to designate as "specially designated narcotics traffickers" [SDNTs] foreign persons he finds to be (1) "materially assisting in, or providing financial or technological support for or to, or providing goods or services in support of, the international narcotics trafficking activities of a [SFNT or other person designated by the Secretary pursuant to the Kingpin Act]," (2) "owned, controlled, or directed by, or acting for or on behalf of, a [SFNT or other person designated by the Secretary pursuant to the Kingpin Act]," or (3) "playing a significant role in international narcotics trafficking." 21 U.S.C. §1904(b). If any of this conduct were attributable to your client she would not have been admitted or paroled into the United States for any reason. Rather, she would have been extradited to the United States for prosecution along with her husband.

An OFAC designation must be supported by "overwhelming amount of evidence" from multiple and varied sources that include "newspaper articles and DEA reports" including "interviews that DEA Special Agents conducted with numerous sources of information." See Zevallos v. Obama, 2014 WL 197864 (D.D.C. 2014); Defendant' Memorandum of Points and Authorities in Support of Their Motion to Dismiss the Second Amended Complaint or, in the Alternative, for Summary Judgment, 2013 WL 4028988, at *13 quoting A.R. 1241. Argue that no such evidence exists in the case against the applicant. In evaluating your case do any news articles, reports, interviews, investigations, photos, videos, or surveillance or any other evidence exist that ties your client to the Kingpin definition other than her relationship to a drug trafficker?

As the reader can see, mere appearance on the OFAC list does not provide probable cause that she engaged in a serious non-political offense. A serious human rights violation would occur if asylum were not granted when your client has demonstrated the factual pretext to being granted asylum.

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