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Summary: Case: 13-60150 Document: 00512467032 Page: 1 Date Filed: 12/10/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 13-60150 Summary Calendar United States Court of Appeals Fifth Circuit FILED December 10, 2013 FLORENCIO CUEVAS, Lyle W. Cayce Clerk Petitioner v. ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent Petition for Review of an Order of the Board of Immigration Appeals Before JOLLY, SMITH, and CLEMENT, Circuit Judges. E. GRADY JOLLY, Circuit Judge: Florencio Cuevas
Summary: Case: 13-60150 Document: 00512467032 Page: 1 Date Filed: 12/10/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 13-60150 Summary Calendar United States Court of Appeals Fifth Circuit FILED December 10, 2013 FLORENCIO CUEVAS, Lyle W. Cayce Clerk Petitioner v. ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent Petition for Review of an Order of the Board of Immigration Appeals Before JOLLY, SMITH, and CLEMENT, Circuit Judges. E. GRADY JOLLY, Circuit Judge: Florencio Cuevas s..
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Case: 13-60150 Document: 00512467032 Page: 1 Date Filed: 12/10/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60150
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 10, 2013
FLORENCIO CUEVAS,
Lyle W. Cayce
Clerk
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Florencio Cuevas seeks review of the decision of the Board of
Immigration Appeals (BIA) concluding that Cuevas was inadmissible because
there was reason to believe he was a drug trafficker. Because the Department
of Homeland Security (DHS) presented sufficient evidence to demonstrate that
it had “reason to believe” Cuevas was an illegal trafficker, the petition for
review is DISMISSED.
I.
Florencio Cuevas is a native and citizen of Mexico who was a legal
permanent resident of the United States. While reentering the United States
from Mexico in 2005, Cuevas’s car was searched, and nearly 24 kilograms of
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No. 13-60150
cocaine were found concealed in the car’s rear panel. Based on this finding,
the Department of Homeland Security (DHS) charged Cuevas with
removability under 8 U.S.C. § 1182(a)(2)(C) on the basis that there was “reason
to believe” that Cuevas was a drug trafficker. Cuevas does not contest that the
cocaine was found in his vehicle. Instead, Cuevas argues that there is not
sufficient evidence to show that he was a drug trafficker because the DHS did
not provide additional direct or circumstantial evidence that Cuevas knew the
drugs were in his vehicle.
II.
Cuevas appeared in immigration court before an immigration judge (IJ).
Cuevas’s main contention was that he was unaware that the cocaine was in his
vehicle. Cuevas testified that he bought the vehicle approximately two weeks
before he left for Mexico from a man “on the street” in Chicago, paying $2,300
for it. Cuevas testified that, during the two weeks he spent in Mexico, he had
exclusive control over the vehicle except for a period of between sixty and
ninety minutes while his headlight was fixed at a mechanic’s shop in Mexico.
Cuevas testified that the shop was located in a town near where he grew up,
but that he knew neither the name of the shop nor the name of the proprietor.
Based on this evidence, the IJ concluded that Cuevas was inadmissible,
and therefore removable, under § 1182(a)(2)(C). Cuevas appealed the decision
of the IJ to the BIA, and the BIA remanded the case, 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 concluded that the DHS had shown sufficiently that
there was reason to believe Cuevas was engaged in illicit drug trafficking. The
IJ relied on several items of evidence: Cuevas was driving his own car that he
had purchased just prior to his trip to Mexico; Cuevas had maintained
exclusive control over the vehicle with the exception of a single ninety minute
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No. 13-60150
period; Cuevas had mechanical work done on the vehicle two or three days
before his arrest; there were fresh weld marks on the rear quarter panel of
Cuevas’s vehicle; and the quantity of cocaine was an amount indicating illegal
trafficking.
The IJ rejected Cuevas’s testimony – giving it “very little weight” –
finding it implausible that either (1) someone had sold Cuevas a car containing
24 kilograms of cocaine for $2,300 or (2) Cuevas had failed to notice
modifications made to his car for the purposes of hiding the cocaine.
On appeal, the BIA agreed that, through the evidence cited by the IJ, the
DHS had met its burden of proving a reason to believe that Cuevas was a drug
trafficker and dismissed the appeal. 1 Cuevas filed this timely petition for
review.
III.
Cuevas challenges only the BIA’s determination that he is inadmissible,
and therefore removable, under § 1182(a)(2)(C). On appeal, we review the
BIA’s decision except to the extent the BIA has adopted conclusions or findings
of the IJ. Chun v. I.N.S., 40 F.3d 76, 78 (5th Cir. 1994).
An alien is inadmissible if a “consular officer or the Attorney General
knows or has reason to believe” that the alien “is or has been an illicit trafficker
in any controlled substance” or has knowingly aided or abetted such
trafficking. 8 U.S.C. § 1182(a)(2)(C). Our review of such a determination is
limited in the immigration context. We lack jurisdiction to review any final
order of removal against an alien who is removable for having committed a
criminal offense under § 1182(a)(2), but retain jurisdiction over questions of
1 The BIA declined to consider the fresh weld marks as evidence against Cuevas.
Before the BIA, Cuevas raised several arguments against relying on the weld marks as
evidence of Cuevas’s drug trafficking. The BIA determined that it need not reach Cuevas’s
arguments because the other evidence was sufficient.
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No. 13-60150
law. 8 U.S.C. § 1252(a)(2)(C)-(D). Additionally, we retain jurisdiction to review
jurisdictional questions, such as whether an alien “is inadmissible pursuant to
[§ 1182(a)(2)].” Balogun v. Ashcroft, 270 F.3d 274, 278 (5th Cir. 2001). Specific
to this case, the Government concedes that we have jurisdiction to decide
whether the DHS had reason to believe that Cuevas participated in illegal drug
trafficking. If we find that the DHS had reason to believe that Cuevas was
engaged in illegal trafficking, we lack jurisdiction to review the BIA’s order
and must dismiss the petition.
IV.
In deciding this jurisdictional question, we face two related issues on
which our court has not spoken. First, whether a criminal conviction is
required for an alien to be removable under § 1182(a)(2)(C). Second, what
amount of evidence the DHS must provide in order to establish a reason to
believe that an alien is engaged in illegal trafficking.
A.
Our court has not yet decided whether there can be reason to believe that
an alien is a drug trafficker if the alien were not convicted of a drug trafficking
offense. We have no difficulty, however, in joining other circuits that have held
that a conviction is not required to meet this standard. See Lopez-Umanzor v.
Gonzales, 405 F.3d 1049, 1053 (9th Cir. 2005) (“Section 1182(a)(2)(C) does not
require a conviction. . . .”); Garces v. United States Atty. Gen.,
611 F.3d 1337,
1345 (11th Cir. 2010) (“A ‘reason to believe’ determination can be made even if
the alien was never convicted of any offense.”); see also In re Rico, 16 I. & N.
Dec. 181, 185–86 (BIA 1977) (alien excluded after being caught with truckload
of marijuana, even though never convicted).
Moreover, the plain language of the statute does not indicate that a prior
conviction is necessary. Indeed, “reason to believe” necessarily evokes a lower
standard than the “beyond a reasonable doubt” required to obtain a criminal
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conviction. Compare 8 U.S.C. § 1182(a)(2)(C), with In re Winship, 397 U.S.
358, 361 (1970) (reaffirming requirement of proving guilt beyond a reasonable
doubt for criminal convictions). Based on this language, and the precedents
mentioned above, we hold that an alien can be inadmissible pursuant to
§ 1182(a)(2)(C) even when not convicted of a crime.
B.
Although not requiring a prior conviction, § 1182(a)(2)(C) does require
some measure of evidence to support the DHS’s belief that an alien is an illegal
drug trafficker. Again, however, our circuit precedent has not established the
amount of evidence that the DHS must present to satisfy the reason to believe
standard. The First Circuit and the BIA have intimated that this standard is
equivalent to the probable cause standard. See Westover v. Reno, 202 F.3d 475,
480 n.6 (1st Cir. 2000) (speculating in dicta that probable cause to believe that
an alien was growing marijuana could have rendered the alien removable
under § 1182(a)(2)(C)); In re U-H-, 23 I. & N. Dec. 355, 356 (BIA 2002)
(describing the “reasonable ground to believe” standard as “akin” to the
probable cause standard). Conversely, the Ninth Circuit requires a showing
greater than mere probable cause. See Alarcon-Serrano v. I.N.S.,
220 F.3d
1116, 1119 (9th Cir. 2000) (holding that a “reason to believe” must be “based
on reasonable, substantial, and probative evidence”).
Under either of these standards, the DHS presented sufficient evidence
to support its belief that Cuevas was engaged in illicit trafficking. To recap:
Cuevas was attempting to enter the United States with nearly 24 kilograms of
cocaine, an amount consistent with trafficking; the cocaine was found in a
vehicle that Cuevas owned; and, aside from a period of ninety minutes, Cuevas
exercised complete control over the vehicle since he purchased it.
Although this evidence does not establish with certainty that Cuevas
knew about the cocaine being in the vehicle – it is possible, but hardly
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No. 13-60150
plausible, that the cocaine was in the car when he purchased it or was placed
in the vehicle without his knowledge – such certainty is not required under
§ 1182(a)(2)(C). The facts presented by the DHS provide “reasonable,
substantial, and probative evidence” that Cuevas was a drug trafficker.
Because the evidence satisfies this standard – the more stringent of the two
potential standards – it is unnecessary to decide whether a probable cause
standard would support the DHS’s reason to believe an alien is a drug
trafficker. Under either standard, Cuevas was removable under
§ 1182(a)(2)(C).
V.
Because a prior conviction is not required for an alien to be removable
under § 1182(a)(2)(C), and because the DHS has shown through reasonable,
substantial, and probative evidence that Cuevas was engaged in illicit
trafficking, we lack jurisdiction to consider the petition for review.
Accordingly, Cuevas’s petition is
DISMISSED.
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