Mena-Flores v. Holder

• Decision Date: 23 January 2015
• Docket Number: 13–9605.,Nos. 13–9532,13–9584,s. 13–9532
• Citation: 776 F.3d 1152
• Parties: Gustavo MENA–FLORES, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

776 F.3d 1152

Gustavo MENA–FLORES, Petitioner

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

Nos. 13–9532

13–9584

13–9605.

United States Court of Appeals, Tenth Circuit.

Jan. 23, 2015.

Mark R. Barr, Lichter Immigration, Denver, CO, for Petitioner.

Robert Michael Stalzer, United States Department of Justice, Washington, D.C. (Stuart F. Delery, Assistant Attorney General, Civil Division, Anh–Thu Mai–Windle, Senior Litigation Counsel, and Julie M. Iversen, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., on the briefs) for Respondent.

Before HOLMES, BACHARACH, and McHUGH, Circuit Judges.

Opinion

BACHARACH, Circuit Judge.

The Department of Homeland Security initiated proceedings to remove Mr. Gustavo Mena Flores from the United States on the ground that he was in the country illegally. Mr. Mena Flores conceded removability, but applied to adjust his status to permanent residency based on his marriage to a U.S. citizen. The immigration judge eventually denied the request, stating that Mr. Mena Flores was ineligible for permanent residency because of a “reasonable belief” that he had participated in drug trafficking. On appeal the Board of Immigration Appeals affirmed, concluding that the immigration judge had sufficient evidence to find a reason to believe that Mr. Mena Flores had participated in drug trafficking.

Mr. Mena Flores petitioned this court to review the Board's denial of his request for adjustment in status. While the petition was pending, the Board denied Mr. Mena Flores's subsequent motions to reopen the case and reconsider the denial of his motion to reopen. Mr. Mena Flores then filed petitions seeking review of these denials.

We deny Mr. Mena Flores's petitions to review the Board's three orders, which affirmed the denial of his application to adjust his status and denied his requests to reopen the proceedings and to reconsider the refusal to reopen. The Board of Immigration Appeals did not err when it held that Mr. Mena Flores had failed to

• prove eligibility for an adjustment in status or

• justify reopening or reconsideration.

I. Removal Proceedings and Request for an Adjustment in Status

Mr. Mena Flores entered the United States unlawfully in 1990. Sixteen years later, the Department of Homeland Security initiated removal proceedings on the ground that he was present in the United States without admission or parole. Mr. Mena Flores admitted that he was removable because he was “undocumented.” But, Mr. Mena Flores tried to change this status, seeking permanent residency based on his marriage to a U.S. citizen. If he had succeeded, he would have avoided removal.

The Department of Homeland Security contended that Mr. Mena Flores could not become a permanent resident based on his criminal activity. This contention stemmed from an arrest of Mr. Mena Flores on drug charges.¹ Though Mr. Mena Flores was acquitted, an immigration judge cannot adjust an alien's status if the evidence creates even a “reason to believe” that the applicant participated in drug trafficking. 8 U.S.C. §§ 1182(a)(2)(C)(i), 1255(i)(2)(A). This standard is lower than the “beyond a reasonable doubt” standard, so the acquittal did not guarantee eligibility to become a permanent resident. See, e.g., Cuevas v. Holder, 737 F.3d 972, 975 (5th Cir.2013) (holding “that an alien can be inadmissible under § 1182(a)(2)(C) even when not convicted of a crime”); Lopez–Umanzor v. Gonzales, 405 F.3d 1049, 1053 (9th Cir.2005) (“Section 1182(a)(2)(C) does not require a conviction, but only a ‘reason to believe’ that the alien is or has been involved in drug trafficking.”); Garces v. U.S. Att'y Gen., 611 F.3d 1337, 1345 (11th Cir.2010) (stating that § 1182(a)(2)(C) renders an alien inadmissible based on a “reason to believe” standard, which does not require a conviction).

Both parties submitted evidence on the allegations of drug trafficking, relying on some of the records from the state criminal trial. At a hearing, the immigration judge granted Mr. Mena Flores's request for adjustment in status. The immigration judge found that Mr. Mena Flores had shown there was no reason to believe he was a participant in drug trafficking. R. (Case No. 13–9532) at 261–62.

The Department of Homeland Security appealed, urging that the agency had a reason to believe Mr. Mena Flores had trafficked in drugs. The Board of Immigration Appeals remanded to the immigration judge to address all of the evidence.

On remand, the immigration judge denied Mr. Mena Flores's application. On essentially the same record, the judge found that there was reasonable, substantial, and probative evidence creating a reason to believe that Mr. Mena Flores had been involved in drug trafficking. Id. at 30. For these findings, the immigration judge relied on

• the statements from “[a]t least five witnesses” involved in the drug operation,

• an affidavit by a special agent identifying two other witnesses to Mr. Mena Flores's trafficking activities, and• a determination that Mr. Mena Flores was not credible because of his demeanor while testifying.

Id. at 28–30.

Mr. Mena Flores appealed to the Board of Immigration Appeals, which affirmed and adopted the immigration judge's decision. Id. at 3.

II. Mr. Mena Flores's Administrative Motions for Reopening and Reconsideration

After the Board's decision, Mr. Mena Flores hired new counsel, who moved for the Board to reopen the removal proceedings to consider transcripts from the criminal trial and additional character references. See R. (Case No. 13–9605) at 122–23. Mr. Mena Flores argued that his prior attorney had been ineffective by failing to present this evidence earlier. The Board denied the motion to reopen, holding that prior counsel's failure to introduce the evidence did not amount to “egregious circumstances” or result in prejudice. Id. at 123.

Following the denial of his motion to reopen, Mr. Mena Flores moved for the Board to reconsider the denial of his motion to reopen, arguing that the Department of Homeland Security had misrepresented critical evidence by splitting one witness's statements, correctly attributing one part and misattributing the other part to another witness. Mr. Mena Flores argues that this error caused the immigration judge to mistakenly believe that there was an additional witness. The Board denied the motion, reasoning that Mr. Mena Flores could not establish prejudice because the misattributed statements were merely “cumulative [of] other consistent and corroborative evidence relied upon by the Immigration Judge.” Id. at 4.

III. Denial of Adjustment in Status

When the immigration judge disallowed an adjustment in status, he reasoned that Mr. Mena Flores had not satisfied his burden of proof on eligibility because of the evidence of drug trafficking. The Board of Immigration Appeals dismissed the appeal, and we conclude that this dismissal did not constitute error.

A. Subject Matter Jurisdiction

This court generally has subject matter jurisdiction to review final orders of removal, such as the order against Mr. Mena Flores. 8 U.S.C. § 1252(a)(1), (5). But, exceptions exist, and the Department of Homeland Security invokes three of them:

1. 8 U.S.C. § 1252(a)(2)(C), which bars review of orders against aliens who are removable because they have participated in drug trafficking;

2. 8 U.S.C. § 1252(a)(2)(B)(i), which bars review of orders involving discretionary relief, including adjustment in status; and

3. 8 U.S.C. § 1252(d)(1), which bars review of unexhausted arguments.

These provisions do not preclude jurisdiction.²

1. Criminal Aliens, 8 U.S.C. § 1252(a)(2)(C)

In 8 U.S.C. § 1252(a)(2)(C), federal law precludes jurisdiction to review an order of removal of an alien who “is removable” based on commission of certain crimes, including drug trafficking. 8 U.S.C. § 1252(a)(2)(C). We must decide if this provision applies when the agency ordered removal based on illegal presence in the country and relied on criminality only to decline an adjustment in status. We conclude that § 1252(a)(2)(C) does not apply in these circumstances.

The Department of Homeland Security argues that Mr. Mena Flores is removable because the government could have ordered him removed based on drug trafficking. We disagree with this logic. The agency did not find Mr. Mena Flores removable for drug trafficking, so application of this jurisdictional bar would require us to make new factual findings. Because such fact finding would be inappropriate, we hold that § 1252(a)(2)(C) does not preclude jurisdiction in situations like ours, when there is no conviction and the alien was not ordered removed for a covered crime (such as drug trafficking).³

Section 1252(a)(2)(C) precludes jurisdiction when an alien “is removable” based on participation in drug trafficking. But, the phrase “is removable” can be interpreted in two ways:

1. as requiring a finding by the immigration judge that the alien was removable for drug trafficking, or

2. as capturing all instances in which the agency could have removed the alien for criminal activity, even when no immigration judge had found criminal activity and the alien had not been convicted of a covered crime.

See Calcano–Martinez v. INS, 533 U.S. 348, 350 n. 2, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001) (stating that § 1252(a)(2)(C) “is not without its ambiguities”).

Our resolution of this ambiguity determines whether we have jurisdiction. We retain jurisdiction if we adopt the first definition because Mr. Mena Flores was not removed based on drug trafficking. (He was ordered removed based on his “undocumented” status.) We might lack jurisdiction if we adopt the second definition because there is evidence that Mr. Mena Flores trafficked in drugs.⁴

We adopt the first definition based on

• the “strong presumption in favor of judicial review of administrative action,”⁵

• the “longstanding principle of construing any lingering ambiguities in deportation statutes in favor of

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