Lopez-Molina v. Ashcroft, 02-74095.

Decision Date02 June 2004
Docket NumberNo. 02-74095.,02-74095.
PartiesJavier Ramon LOPEZ-MOLINA, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Bertram Polis, Tucson, AZ, for the petitioner.

Genevieve Holm, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before: TASHIMA and CLIFTON, Circuit Judges, and LEIGHTON, District Judge.*

Opinion by Judge Clifton; Dissent by Judge Tashima

CLIFTON, Circuit Judge:

Javier Ramon Lopez-Molina, a native and citizen of Mexico, petitions for review of a summary affirmance by the Board of Immigration Appeals (BIA) of an order of removal entered by the immigration judge (IJ). Before addressing the merits of his petition, we must determine whether the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) divests this court of jurisdiction to review Lopez-Molina's removal order. More specifically, we must decide whether 8 U.S.C. § 1252(a)(2)(C) — which bars our review of a removal order when the alien "is removable by reason of having committed a criminal offense covered in section 1182(a)(2)" — applies when the alien is removable pursuant to 8 U.S.C. § 1182(a)(2)(C) because an immigration official has "reason to believe" the alien was involved in illicit drug trafficking. Because our decision in Alarcon-Serrano v. INS, 220 F.3d 1116 (9th Cir.2000) held that we lacked jurisdiction under nearly identical circumstances, we dismiss Lopez-Molina's petition for review.

I. BACKGROUND

In 1990, Arizona law enforcement officers, acting on a tip regarding the transport of a load of marijuana, placed Lopez-Molina and four other suspects under surveillance. After observing several meetings between the suspects, officers attempted to stop the vehicle that Lopez-Molina was driving. Upon seeing the police pursuit, Lopez-Molina exited the vehicle and attempted to escape on foot before he was ultimately captured. Officers then searched the vehicle and found 147 pounds of marijuana concealed in the trunk. While in custody, Lopez-Molina stated that he thought the plastic bags in the trunk contained garbage and denied knowledge of the marijuana. Although he claimed that he and a friend had borrowed the car to "purchase some items," he could not say what store they were going to or what items they were going to purchase. Lopez-Molina then told police that he only ran from the officers because he was afraid that they were immigration officials. For reasons unknown, Lopez-Molina was not immediately prosecuted.

In 1995, Lopez-Molina was admitted into the United States as a non-immigrant visitor. A year later, the federal government charged him with violating 18 U.S.C. § 4 (Misprision of Felony), a charge that arose out of his 1990 drug-related arrest in Tucson, Arizona. According to the Information, Lopez-Molina had knowledge of a "conspiracy to possess marijuana with intent to distribute, [but] concealed and failed ... to make said offense known." Lopez-Molina eventually pleaded guilty to this charge.

In 1997, Lopez-Molina applied for an adjustment of status to that of a permanent resident. This application was denied and soon thereafter, the government filed a Notice to Appear (NTA), charging that Lopez-Molina was subject to removal because he was an inadmissible alien under 8 U.S.C. § 1182(a)(2)(C) at the time of adjustment of status, and thus deportable pursuant to 8 U.S.C. § 1227(a)(1)(A).1

At a master calendar hearing before an IJ, Lopez-Molina entered a general denial of the allegations in the NTA. During the subsequent evidentiary hearing, the government offered a set of documents into evidence, including an Arizona Department of Public Safety Report detailing the circumstances of his 1990 drug arrest (DPS Report), the Information to which Lopez-Molina pleaded guilty, and the judgment entered pursuant to his guilty plea. Lopez-Molina responded, through counsel, with a variety of objections. He first objected to the admission of the documents because they were not filed or disclosed prior to the court-imposed deadline. Lopez-Molina then alleged that several documents were "inadmissible hearsay," were not made under oath, were not reliable, and were contradictory as to the amount of marijuana seized from the vehicle that Lopez-Molina was driving. Aside from making these objections, however, Lopez-Molina did not otherwise testify or present any evidence to refute the government's charges.

The IJ noted that Lopez-Molina offered nothing in the form of rebuttal evidence and concluded that the government had established that "there was sufficient evidence for the consular or Immigration officer to formulate a reason to believe that [Lopez-Molina] is a trafficker in controlled substances." The IJ ordered Lopez-Molina removed and the BIA summarily affirmed the IJ's order of deportation. Lopez-Molina appealed and the removal order has been stayed pending our review.

II. DISCUSSION

The permanent rules of IIRIRA govern this case because removal proceedings were initiated after April 1, 1997. See Castro-Baez v. Reno, 217 F.3d 1057, 1058 n. 2 (9th Cir.2000). Under IIRIRA's permanent rules, this court's ability to review a final order of removal is limited by 8 U.S.C. § 1252(a)(2)(C).2 This court determines for itself whether Lopez-Molina's case falls within the parameters of this jurisdiction-stripping provision. In other words, we have jurisdiction to consider our own jurisdiction. See Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1064-65 (9th Cir.2003).

In Alarcon-Serrano v. INS, 220 F.3d 1116 (9th Cir.2000), we held that in order to determine whether we lack jurisdiction to review a final order of removal under IIRIRA,3 we may consider only whether the petitioner is "(i) an alien (ii) who is [removable] (iii) by reason of having committed a criminal offense listed in [§ 1182(a)(2) ]." Id. at 1119. Because there is no dispute that Lopez-Molina is an alien, the only viable question in this case is whether he is removable by reason of having "committed a criminal offense" listed in § 1182(a)(2). Id.

Section 1182(a)(2) provides that an alien is inadmissible, and thus removable,4 if he has been convicted of certain crimes, or if he has been convicted multiple times. See 8 U.S.C. § 1182(a)(2)(A) and (B). Section 1182(a)(2)(C), however, does not require a conviction in order for the alien to be deemed removable. See Alarcon-Serrano, 220 F.3d at 1119. The only requirement under § 1182(a)(2)(C) is that an immigration official has "reason to believe" that the alien is or has been involved in illicit drug trafficking. See 8 U.S.C. § 1182(a)(2)(C).5 Therefore, the question we must decide is whether an alien, who is removable pursuant to § 1182(a)(2)(C) because an immigration official had "reason to believe" he was involved in illicit drug trafficking, qualifies as "an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2)." See 8 U.S.C. § 1252(a)(2)(C). If we answer this question in the affirmative, then we lack jurisdiction to review Lopez-Molina's order. If we answer in the negative, then we must proceed to review the order on the merits.

We need not look far for our answer. We applied these very provisions in Alarcon-Serrano, and did so under virtually identical circumstances, before concluding that we lack jurisdiction to review a final removal order that was premised upon the "reason to believe" standard of § 1182(a)(2)(C). See Alarcon-Serrano, 220 F.3d at 1120. The petitioner in that case was a legal alien who had been apprehended while attempting to drive a car carrying 86 pounds of concealed marijuana across the California border. Id. at 1117. After his arrest, Alarcon-Serrano consistently denied knowledge of the concealed marijuana and was not convicted of any crime. Id. at 1118. Nonetheless, the government initiated removal proceedings against him, alleging that he was removable pursuant to § 1182(a)(2)(C) because immigration officials had "reason to believe" that Alarcon-Serrano was a participant in controlled substance trafficking. Id. 1118-19. The IJ found that "circumstances correlate to show that [Alarcon-Serrano] colluded with a known drug trafficker to import in to the United States more than 80 pounds of marijuana." Id. The BIA agreed that Alarcon-Serrano's claims of ignorance lacked credibility and affirmed the IJ's removal order. Id.

When Alarcon-Serrano appealed the removal order to this court, the government argued — as it does in the case at hand — that because the removal order was premised upon the IJ's "reason to believe" that Alarcon-Serrano had been involved in illegal drug trafficking, Alarcon-Serrano qualified as an alien removable by reason of having "committed a criminal offense" covered in section 1182(a)(2), and thus, this court lacked jurisdiction under IIRIRA to review the removal order. The Alarcon-Serrano court ultimately agreed. Recognizing that it must first determine whether the case fell within the terms of IIRIRA's jurisdiction-stripping provision, it formulated the following analysis:

Under [8 U.S.C. § 1182(a)(2)(C)], the only requirement is that an immigration officer `knows or has reason to believe' that Alarcon-Serrano is an illicit trafficker in controlled substances or that Alarcon-Serrano has knowingly assisted, abetted, conspired with, or colluded with others in such illicit trafficking.

The appropriate way of measuring whether the IJ and BIA had `reason to believe' that Alarcon-Serrano was participating in drug trafficking is to determine whether substantial evidence supports such a conclusion.... Although to some extent this conflates review of the jurisdictional facts and review of the merits in this case, this is the correct path to follow.

Id. (...

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