Filed: Apr. 01, 2013
Latest Update: Feb. 12, 2020
Summary: 10-4675 Munera Gallego v. Holder BIA Verrillo, IJ A072 419 098 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W
Summary: 10-4675 Munera Gallego v. Holder BIA Verrillo, IJ A072 419 098 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WI..
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10-4675
Munera Gallego v. Holder
BIA
Verrillo, IJ
A072 419 098
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of
2 Appeals for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of New
4 York, on the 1st day of April, two thousand thirteen.
5
6 PRESENT:
7 JOSEPH M. McLAUGHLIN,
8 BARRINGTON D. PARKER,
9 PETER W. HALL,
10 Circuit Judges.
11 _____________________________________
12
13 OMAR ALBERTO MUNERA GALLEGO,
14 Petitioner,
15
16 v. 10-4675
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Omar Alberto Munera Gallego, Pro Se,
24 Orlando, Florida.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Greg D. Mack,
28 Senior Litigation Counsel; Colin J.
1 Tucker, Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Omar Alberto Munera Gallego, a native and citizen of
11 Colombia, seeks review of an October 18, 2010, decision of
12 the BIA affirming the May 10, 2010, decision of Immigration
13 Judge (“IJ”) Philip Verrillo, finding him removable and
14 denying his motion to terminate proceedings, and terminating
15 his asylee status. In re Omar Alberto Munera Gallego, No.
16 A072 419 098 (B.I.A. Oct. 18, 2010), aff’g No. A072 419 098
17 (Immig. Ct. Hartford May 10, 2010). We assume the parties’
18 familiarity with the underlying facts and procedural history
19 in this case.
20 Under the circumstances of this case, we have reviewed
21 the IJ’s decision as supplemented and modified by the BIA.
22 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005);
23 Xue Hong Yang v. U.S. Dep’t of Justice,
426 F.3d 520, 522
24 (2d Cir. 2005). The applicable standards of review are
25 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
26 v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
2
1 Although we generally do not have jurisdiction to
2 review a final order of removal against an alien who is
3 removable by reason of having committed a crime involving a
4 controlled substance, see 8 U.S.C. § 1252(a)(2)(C), we
5 retain jurisdiction to review non-frivolous constitutional
6 claims and questions of law — and review such questions de
7 novo, see id. § 1252(a)(2)(D). Munera Gallego raises non-
8 frivolous questions of law challenging the denial of his
9 motion to terminate and the agency’s determination that his
10 arrest for trafficking cocaine supported a reasonable belief
11 that he was engaged in drug trafficking under 8 U.S.C.
12 § 1182(a)(23) and thus was removable. These arguments lack
13 merit.
14 Distinct from other bases of inadmissibility and
15 removability, § 1182(a)(23) does not require a conviction,
16 but a “reasonable belief” that an alien is or was engaged in
17 illicit trafficking of a controlled substance. The BIA has
18 held that in making a finding a removability on this ground,
19 the IJ must base that finding on “reasonable, substantial,
20 and probative evidence.” Matter of Rico, 16 I. & N. Dec.
21 181, 186 (B.I.A. 1977). While an uncorroborated police
22 report that fails to provide factual observations may not
3
1 constitute substantial evidence, see Garces v. U.S. Att’y
2 Gen., 611 F.3d 1337, 1343 (11th Cir. 2010); In re Arreguin
3 de Rodriguez, 21 I. & N. Dec. 38, 42 (B.I.A. 1995), and the
4 only complete police report in the record here was not
5 certified by the state court in which it was filed, the IJ
6 relied on both the factual observations in the police
7 reports and corroborating booking and evidence reports. The
8 documentation established the discovery of plastic bags
9 filled with a white substance believed to be cocaine and a
10 large amount of cash found on Munera Gallego’s person and in
11 hidden compartments in his car and belongings, and noted
12 Munera Gallego’s admission that he was in possession of
13 drugs and that he provided the police with an alias. As his
14 admission, the large amount of currency, and the existence
15 of hidden compartments tend to demonstrate both that the
16 untested white substance was an illicit drug and that Munera
17 Gallego was a drug dealer, see United States v. Perez, 144
18 F.3d 204, 208 (2d Cir. 1998); United States v. Gonzalez, 922
19 F.2d 1044, 1056 (2d Cir. 1991), the record contained
20 substantial evidence demonstrating a reason to believe that
21 Munera Gallego was engaged in illicit trafficking of
22 cocaine, a controlled substance, see § 1182(a)(23); cf.
4
1 Lopez-Molina v. Ashcroft, 368 F.3d 1206, 1211 (9th Cir.
2 2004) (finding that there was substantial evidence meeting
3 “reason to believe” standard based on reports of suspicious
4 meetings, the alien’s attempt to evade arrest, and the
5 subsequent discovery of 147 pounds of marijuana inside the
6 alien’s car); Alarcon-Serrano v. INS,
220 F.3d 1116, 1120
7 (9th Cir. 2000) (finding that evidence of alien’s arrest
8 while attempting to drive a car carrying 86 pounds of
9 concealed marijuana constituted substantial evidence
10 supporting a “reason to believe” the alien was engaged in
11 illicit trafficking).
12 Munera Gallego also fails to raise a meritorious
13 constitutional claim or question of law regarding the
14 termination of his asylee status. His arguments that the IJ
15 erred in weighing the evidence merely dispute the IJ’s
16 factual findings. See Xiao Ji Chen v. U.S. Dep’t of
17 Justice,
471 F.3d 315, 329 (2d Cir. 2006). Although we may
18 consider his argument that the IJ failed to consider the
19 survival of certain paramilitary groups in Colombia, his
20 argument is without merit because the agency expressly
21 considered the Colombian government’s failure to dismantle
22 all paramilitary groups, but noted that its marked success
23 and continued efforts to demobilize those groups supported a
5
1 finding that Munera Gallego no longer had a well-founded
2 fear of persecution.
3 Furthermore, contrary to Munera Gallego’s argument, the
4 agency did not rely solely on his voluntary return to
5 Colombia in finding that he no longer had an objective fear
6 of persecution. Rather, in conjunction with the general
7 decrease in paramilitary violence in Colombia, the agency
8 considered Munera Gallego’s testimony that: (1) his family
9 had over a decade before abandoned the disputed farmland
10 that rendered them targets of the guerillas; (2) he remained
11 in Colombia for one month unharmed; and (3) his family had
12 not been harmed since abandoning the disputed farmland.
13 Accordingly, because the voluntary return was only one
14 factor that the agency considered, Munera Gallego has not
15 demonstrated any legal error in the agency’s decision. Cf.
16 Kone v. Holder, 596 F.3d 141, 150-51 (2d Cir. 2010) (citing
17 Tarraf v. Gonzales,
495 F.3d 525, 534 (7th Cir. 2007)
18 (finding that while return trips weigh against an alien’s
19 credible fear, there “well may be circumstances when a
20 person who legitimately fears persecution nevertheless might
21 elect to return temporarily to his home country”)).
22
23
6
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of removal
3 that the Court previously granted in this petition is VACATED,
4 and any pending motion for a stay of removal in this petition
5 is DISMISSED as moot. Any pending request for oral argument in
6 this petition is DENIED in accordance with Federal Rule of
7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
8 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
7
