Gomez–granillo v. Eric H. Holder Jr.

• Decision Date: 14 July 2011
• Docket Number: No. 06–70635.,06–70635.
• Citation: 654 F.3d 826,11 Cal. Daily Op. Serv. 8847,2011 Daily Journal D.A.R. 10671
• Parties: Luis GOMEZ–GRANILLO, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

654 F.3d 826

11 Cal. Daily Op. Serv. 8847

2011 Daily Journal D.A.R. 10,671

Luis GOMEZ–GRANILLO, Petitioner,

v.Eric H. HOLDER Jr., Attorney General, Respondent.

No. 06–70635.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 11, 2011.Filed July 14, 2011.

Dario Aguirre, Aguirre Law Group, Denver, CO; Guy Grande (argued), Aguirre Law Group, San Diego, CA, for the petitioner.John Hogan and Jennifer L. Lightbody (argued), United States Department of Justice, Washington, D.C., for the respondent.On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A091–815–131.Before: A. WALLACE TASHIMA and RAYMOND C. FISHER, Circuit Judges, and MARK L. WOLF, District Judge.^*

OPINION

MARK L. WOLF, District Judge:

Petitioner Luis Gomez–Granillo petitions for review of a decision of the Board of Immigration Appeals (“BIA”) dismissing an appeal from an order of removal to Mexico. Despite petitioner's testimony to the contrary, an Immigration Judge (“IJ”) found that petitioner was inadmissible under 8 U.S.C. § 1182(a)(2)(C) because the inspectors at the border inspection station had reason to believe that petitioner was knowingly involved in drug trafficking. The BIA dismissed the appeal because substantial evidence supported the finding that an immigration officer had the necessary “reason to believe.” We grant the petition and remand for a new hearing because the IJ misunderstood the relevant legal standard.

I. FACTUAL AND PROCEDURAL BACKGROUND

At the time of the proceedings before the IJ, petitioner was a 57–year–old divorced male. He was a native and citizen of Mexico and, since December 1, 1990, a lawful permanent resident (“LPR”) of the United States. He worked as a commercial truck driver.

On December 13, 2002, petitioner drove a tractor and trailer from within Mexico to the Port of Entry at Otay Mesa, California. There, his truck was inspected by an immigration officer, George Abanico, and found to contain 8,595 pounds of marijuana hidden within crates of produce. Later that day, petitioner was interviewed by Special Agent Richard Encinas.

On January 9, 2003, Inspector Tony Rodriguez took a statement from petitioner. On the same day, the government issued a Notice to Appear charging petitioner as an “arriving alien” who had applied for admission and was inadmissible under § 1182(a)(2)(C) because the immigration officer knew or had reason to believe that petitioner was or had been an illicit trafficker in a controlled substance or had been a knowing assister, abettor, conspirator, or collaborator with others in the illicit trafficking in a controlled substance. ¹

At an evidentiary hearing before the IJ, petitioner testified that he had been a truck driver since 1969 and was, at the relevant time, employed by Luis Lara, who owned a business in Tijuana, Mexico. Petitioner's job was to arrive at Lara's business and pick up a loaded refrigeration trailer with a capacity of 45,000 pounds. Petitioner stated that he did not observe the loading process and performed only a brief inspection of the contents of the trailer to verify that loading was complete.

Petitioner further testified that, on the day in question, he arrived in Mexico from Los Angeles, left the empty truck at Lara's business, and then went to his sister's home in Tijuana to eat. Lara called petitioner at his sister's home to tell him the truck was ready. Petitioner then went to Lara's business, checked that the truck was completely loaded, and departed for the local customs agency and, ultimately, the United States. Petitioner testified that Lara did not tell him what was in the trailer, that he saw boxes of vegetables in the trailer, and that the manifest he received at the customs agency listed peppers and cucumbers. Petitioner testified that he did not know the truck contained illegal drugs until officers at the border found the marijuana.

Agents of the government also testified at the hearing. Officer Abanico described how he discovered the marijuana by inspecting the truck by x-ray and then by offloading the cargo and inserting a probe into the middle of the boxes of produce. He also testified that, while he conducted his inspection, petitioner violated port policy by speaking on a cell phone and repeatedly ignored instructions to cease doing so. Special Agent Encinas described his December 13, 2002 interview with petitioner. He perceived discrepancies in petitioner's trucking log book, as well as inconsistencies in petitioner's responses when petitioner was asked about his history of money import/export transactions. Inspector Rodriguez testified concerning his January 9, 2003 interview with petitioner. Agent Ted Lehman testified as an expert on the drug trade and opined that it would be highly unusual for such a large quantity of drugs to be entrusted to an unknowing courier.

In addition to these witnesses, both the government and petitioner submitted various exhibits, including, for example, petitioner's log book, federal regulations regarding the maintenance of such log books, and photographs of Bajas Produce in Los Angeles, a location at which petitioner stopped on December 12, 2002.

In his decision following the evidentiary hearing, the IJ stated that petitioner “makes an application for admission to the United States” and sustained the charge of inadmissibility. Citing Matter of Rocha, 20 I. & N. Dec. 944 (BIA 1995), superseded by statute, Intelligence Authorization Act for Fiscal Year 2000, Pub.L. No. 106–120, § 809, 113 Stat. 1606, 1632, as recognized in Matter of Casillas–Topete, 25 I. & N. Dec. 317 (BIA 2010), the IJ concluded “the ‘reason to believe’ is the officer's belief at the time the alien is encountered at the port of entry.” The IJ “agree[d] with the Government that the totality of the circumstances indicate clear, convincing, and unequivocal evidence that the inspectors at the border inspection station had reason to believe that the [petitioner] was consciously involved in an illicit scheme to bring into the United States a huge load of marijuana.” Specifically, the IJ noted the following circumstantial evidence that petitioner knowingly transported marijuana.

1. At the border, petitioner “did not act as a man at ease and with innocent mind.” Specifically, as Officer Abanico carried out his inspection of the truck, petitioner violated port policy by speaking on a cell phone and repeatedly ignored instructions to cease doing so.

2. When questioned by Special Agent Encinas, petitioner “was very nervous and fidgeting in his seat.” Petitioner also unequivocally denied prior involvement in money transfer activities. However, after being confronted with documents showing that petitioner was involved in 1998 and 1999 with import/export transactions of $30,000 and $27,000, petitioner “became flustered, changed his story, and then stated that he had been involved in such transactions, but could not remember the exact details.”

3. Trucking regulations “mandate that the trucker record the location of each stop.” When petitioner made a stop at the Bajas Produce company in Los Angeles on December 12, 2002 (the day before the discovery of the marijuana), he should have but did not “make a Bajas Produce entry in his log book for December 12, 2002.” Rather, Special Agent Encinas observed that the log book showed a stop that day at the Los Angeles market.

4. Agent Lehman, who has many years of experience regarding the illicit trafficking in narcotics across the border, testified “that it would be highly unusual for a courier ... to be totally unaware of the presence of more than 8,500 pounds of marijuana in the truck that he was driving.” He testified that the owner would not take the chance of giving millions of dollars worth of marijuana to an unknowing courier because “loss of the load would be a catastrophic loss to the owner thereof.”

Regarding petitioner's testimony denying knowledge of the marijuana, the IJ stated only that “[t]he mere fact that the [petitioner] does not admit guilty knowledge ... does not preclude a finding against him on this issue.” On September 13, 2004, the IJ ordered petitioner removed from the United States to Mexico.²

Petitioner appealed to the BIA. On January 4, 2006, the BIA dismissed the appeal because substantial evidence supported the IJ's conclusion that petitioner was inadmissible. The BIA relied in part on reasoning similar to the IJ's. The BIA also found that, although petitioner testified that Lara denied ownership of the drugs, Lara retained counsel for petitioner during related criminal proceedings.³ Additionally, the BIA found that, although petitioner initially claimed that he did not have fear of reprisal from the owner of the marijuana, he later testified that he feared returning to Mexico as “ ‘this persons that did this with me would take reprisals against me.’ ” Notably, while the IJ, citing Matter of Rocha, 20 I. & N. Dec. 944, focused the inquiry on whether the officials at the border had reason to believe petitioner was engaged in drug trafficking, the BIA, citing Lopez–Molina v. Ashcroft, 368 F.3d 1206 (9th Cir.2004), and Alarcon–Serrano v. INS, 220 F.3d 1116, 1119 (9th Cir.2000), appears to have focused on whether substantial evidence supported the IJ having reason to believe, based on the totality of the evidence at the evidentiary hearing, that petitioner was participating in drug trafficking.

The IJ made no explicit adverse credibility finding with respect to petitioner's testimony. Indeed, because the IJ found, based on Matter of Rocha, that the “reason to believe” is the border “officer's belief at the time the alien is encountered at the port of entry,” it appears that the IJ did not believe that it was necessary or appropriate to evaluate the veracity of petitioner's testimony at the hearing at all.

The BIA reviewed the IJ's conclusions under the “substantial evidence” standard. Although the BIA noted arguable...