Garces v. U.S. Attorney Gen., 09-11520.

• Citation: 611 F.3d 1337
• Decision Date: 27 July 2010
• Docket Number: No. 09-11520.,09-11520.
• Parties: Roberto GARCES, Petitioner,v.U.S. ATTORNEY GENERAL, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

611 F.3d 1337

Roberto GARCES, Petitioner,v.U.S. ATTORNEY GENERAL, Respondent.

No. 09-11520.

United States Court of Appeals Eleventh Circuit.

July 27, 2010.

Tammy Fox-Isicoff, Rifkin & Fox-Isicoff, P.A., Miami, FL, for Petitioner.

David V. Bernal, Stuart S. Nickum, Dept. of Justice, Office Immigration Lit., Washington, DC, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before CARNES, ANDERSON and STAHL,^* Circuit Judges.

CARNES, Circuit Judge:

Roberto Garces has petitioned us for review of the Board of Immigration Appeals' order dismissing his appeal from an immigration judge's order finding him removable under section 212(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(C), as an alien whom the Attorney General “knows or has reason to believe is or has been an illicit trafficker in any controlled substance.” Unlike other grounds for inadmissibility that are triggered by criminal convictions, the “reason to believe” provision allows removal based on criminal conduct even if there was no conviction. At issue in this case is whether the combination of a guilty plea leading to a conviction that was later vacated and some hearsay statements in police reports provides enough reason to believe that Garces trafficked in a controlled substance. Our conclusion is that it does not, at least not in the circumstances of this case.

I.

Garces, a native and citizen of Cuba, was paroled into the United States in 1980. See generally INA § 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A). Three years later, on April 6, 1983, he was caught up in a drug bust at a Miami Beach hotel. That would eventually lead to a removal notice being filed against Garces in 2006, an immigration hearing in 2007, a BIA decision in 2009, and this review of that decision.

Two different accounts of what happened that April night in 1983 emerge from the record, one from arrest reports and the other from Garces' testimony at his 2007 immigration hearing.

The record contains four sworn “complaints/arrest affidavits,” which we will call arrest reports, prepared by the Miami Beach police officers who arrested Garces and five other men as a result of an attempted drug transaction that night. According to those four arrest reports, undercover officers had arranged a cocaine buy at a hotel. Around 9:45 p.m. George Canevaro “arrived w [ith]” Kevin Sayers and Juan Castillo, and Garces then arrived and “made contact with” Canevaro at the hotel. After Castillo made a phone call, Canevaro came up to the room where the undercover “buyer” was waiting. Canevaro walked out on the balcony, signaled to someone downstairs, turned around, and handed the undercover officer baggies containing about four ounces of cocaine. He was arrested a few minutes later.

Meanwhile, other officers saw Garces and a man named “Joseph” (last name unknown) get into a late-model Isuzu and begin to leave the parking lot. When the officers identified themselves and ordered Garces to stop, he swerved the car “towards” one of the officers and “attempted to run him down.” After the officer jumped out of the way, the car hit a light pole and a tree and came to a stop. Joseph jumped out of the passenger side and was subdued after a struggle. He and Garces were placed under arrest and advised of their rights. None of the arrest reports mention any shots being fired.

Garces, testifying at his immigration hearing twenty-four years after the fact, told a different story. He was at home around 9:00 p.m. when Canevaro, his neighbor from down the block, stopped by and invited him to a birthday party. Garces had been acquainted with Canevaro for about a year, and the two men would chat when they washed their cars on Saturdays. He insisted that he had no idea that Canevaro, who had a job and a family, was involved in anything illegal. Garces did not know the person whose birthday was being celebrated, but he drove Canevaro to the party at a hotel in Miami Beach. When they arrived there at around 9:45 p.m., Garces pulled up in front of the lobby and Canevaro got out of the car to meet someone at the door. Garces then got out and asked Canevaro where he should park. Canevaro told a man named Joseph, whom Garces had not previously met, to show him where to take the car.

As Garces, with Joseph in the car, was driving slowly through the dark parking lot looking for a space, several men approached, brandishing guns. When one of those men jumped in front of the car, Garces swerved to avoid hitting him, causing the car to crash. Joseph then jumped out of the car and began struggling with the men. Garces thought it was a robbery. He heard gunshots.¹ When he got out of the car, someone grabbed him from behind, put a gun to his head, and threw him to the ground. Only after they put him in handcuffs did he realize that the men were plainclothes police officers. Before that, Garces had not heard the men identify themselves as police. He testified he did not have any drugs on his person or in his car, and he had no idea that Canevaro had drugs and was planning to sell them.

Garces was initially charged with trafficking in cocaine, in violation of Fla. Stat. § 893.135; aggravated assault, in violation of Fla. Stat. § 784.021; and willfully fleeing, in violation of Fla. Stat. § 316.1935. On April 16, 1984, one year after his arrest, Garces pleaded guilty in Dade County Circuit Court to the trafficking² and aggravated assault charges. On May 30, 1984, he was sentenced to three years' probation on the drug charge; he received deferred adjudication and a suspended sentence on the assault charge.

Because the record in this case does not contain any transcript or minutes of the long-ago plea proceedings, we do not know what statements Garces made during those proceedings, or whether he was under oath at the time; we do not know what the judge said to him; and we do not know what evidence the prosecution had against him or whether the prosecutor recited it. When asked at the immigration hearing nearly a quarter of a century later why he had pleaded guilty if, as he now insists, he did not commit any crime, Garces testified that his attorney advised him to do so. He was told that if he took the plea deal he would get probation, which the lawyer called “nothing,” but if he went to trial and lost, he could have faced up to 15 years in prison. Garces added that he also did not have the money to pay that lawyer to represent him through trial. The lawyer misadvised him that a guilty plea would not affect his immigration status.

II.

Garces eventually found out that, as far as federal immigration law is concerned, a felony drug conviction is very far from “nothing.” See, e.g., 8 U.S.C. § 1182(a)(2)(A)(i)(II) (alien convicted of, or who admits having committed, a controlled substance offense is inadmissible to this country). He learned that lesson when he first applied for permanent resident status and saw his application denied.³ That prompted Garces to return in August of 2000 to the same state court that had convicted him sixteen years earlier and file a motion under Fla. R.Crim. P. 3.850 to vacate and set aside his guilty plea. His motion asserted that the plea was involuntary because the court had failed to advise him of potential immigration consequences as required by the Florida Rules of Criminal Procedure. See Fla. R.Crim. P. 3.172(c)(8) (“[T]he trial judge ... shall determine that [the defendant] understands ... that if he or she pleads guilty or nolo contendere, if he or she is not a United States citizen, the plea may subject him or her to deportation....”). The Florida court apparently agreed, because on August 11, 2000, it vacated Garces' guilty plea and resulting convictions. The same court order also noted that the state had decided to nol pros the original charges, not a surprising decision in light of the length of time that had elapsed.

At some point after his convictions were vacated, though the record does not indicate exactly when, Garces submitted a second application to the United States Citizenship and Immigration Services seeking adjustment to permanent resident status under the Cuban Adjustment Act, Pub.L. No. 89-732, 80 Stat. 1161 (Nov. 2, 1966) (reproduced as a historical note to 8 U.S.C. § 1255). The USCIS denied Garces' second application on August 11, 2006, informing him that he was still inadmissible to the United States because there was reason to believe he had engaged in drug trafficking. See 8 U.S.C. § 1182(a)(2)(C).

On September 28, 2006, the Department of Homeland Security revoked Garces' parole into this country and initiated removal proceedings. The Notice to Appear charged two grounds for removal: (1) that he was an immigrant not in possession of a valid visa or other entry document, INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I); and (2) that there was reason to believe he had engaged in drug trafficking, INA § 212(a)(2)(C), 8 U.S.C. § 1182(a)(2)(C)(i). Specifically, it alleged that he “sold 4 1/2 ounces, more or less, of Cocaine to an undercover Police Officer” in 1983.

On December 6, 2006, Garces filed a motion in the Immigration Court to renew his application under the Cuban Adjustment Act. He denied any involvement in the cocaine sale, telling the court he had only pleaded guilty because he could not afford to pay his lawyer through a trial and he believed that the probationary sentence would not affect his immigration status. Garces argued that there was insufficient evidence to establish that he “knowingly and consciously participated” in the cocaine transaction.

At the initial hearing before the immigration judge on December 12, 2006, Garces conceded removability on the documents charge but denied that he was removable on the drug trafficking charge. Pointing out that his trafficking conviction had been vacated, he insisted he had nothing to do with the 1983 drug transaction that had led to that conviction. The government...