Rojas v. Garland

• Decision Date: 27 May 2021
• Docket Number: No. 19-1944,19-1944
• Citation: 998 F.3d 847
• Parties: Agustin Gurrola ROJAS Petitioner v. Merrick B. GARLAND, Attorney General of the United States Respondent
• Court: U.S. Court of Appeals — Eighth Circuit

998 F.3d 847

Agustin Gurrola ROJAS Petitioner

v.Merrick B. GARLAND, Attorney General of the United States Respondent

No. 19-1944

United States Court of Appeals, Eighth Circuit.

Submitted: January 13, 2021

Filed: May 27, 2021

Lazara Lourdes Pittman, Iowa City, IA, for Petitioner

EOIR, EOIR, Department of Justice, Executive Office for Immigration Review, Falls Church, VA, Katherine S. Fischer, Katherine S. Fischer, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, Oil Oil, OIL, U.S. Department of Justice, Washington, DC, for Respondent.

Before SMITH, Chief Judge, KELLY and ERICKSON, Circuit Judges.

KELLY, Circuit Judge.

Under the Immigration and Nationality Act (INA), a noncitizen is inadmissible to the United States if "the Attorney General knows or has reason to believe" that the noncitizen is or has been either "an illicit trafficker in any controlled substance," or "a knowing aider, abettor, assister, conspirator, or colluder with others" in such trafficking. 8 U.S.C. § 1182(a)(2)(C)(i). Mexican citizen Agustin Gurrola Rojas petitions this court for review of an order of the Board of Immigration Appeals (BIA) finding him inadmissible under § 1182(a)(2)(C). We dismiss the petition for lack of jurisdiction. Id. § 1252(a)(2)(C).

I.

Rojas has lived in the United States since 1997, when he entered the country without inspection. On January 17, 2018, he was arrested for drug trafficking in Des Moines, Iowa, along with his nephew, Paulino Delgado, and a friend, Jose Gutierrez Rodriguez. Rojas was subsequently charged in the Southern District of Iowa with possession of methamphetamine with the intent to distribute, 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii), and with conspiracy to deliver methamphetamine, id. § 846. These charges were ultimately dismissed in June 2018. That same month, the Department of Homeland Security initiated removal proceedings against Rojas, charging him with being present in the United States without having been admitted or paroled, 8 U.S.C. § 1182(a)(6)(A)(i), and with being an illicit trafficker in a controlled substance, or aiding and abetting such trafficking, id. § 1182(a)(2)(C). Although Rojas conceded removability under § 1182(a)(6)(A)(i), he denied the § 1182(a)(2)(C) charge and applied for cancellation of removal and adjustment of status, id. § 1229b(b), and, alternatively, for voluntary departure, id. § 1229c.

At his merits hearing before the Immigration Judge (IJ), Rojas testified that he was with Delgado and Rodriguez near his home in Anaheim, California, on January 16, 2018—the day before the arrest—when Delgado invited them on a trip to Las Vegas, approximately four hours away. Rojas and Rodriguez accepted, thinking they would return the next day. According to Rojas, though, he fell asleep in the car and did not realize until much later that Delgado had driven past Las Vegas. Rojas testified that at one point he asked Delgado where they were going, and Delgado responded that they were delivering drugs to Iowa. But Delgado was apparently laughing when he said this, so Rojas did not believe him. Rojas also testified that he overheard Delgado talking about how they would get $30,000 or $45,000 for the trip, but Rojas did not fully understand him because he was speaking in English. Rojas said he was afraid to inquire further because, if Delgado was in fact trafficking drugs, Rojas did not want to put himself in danger. But although Delgado stopped about four times for food and gas on the way to Iowa, Rojas did not abandon the group. Eventually, Delgado, Rojas, and Rodriguez arrived at a large warehouse in Des Moines, where an undercover narcotics officer was waiting for them. When Delgado opened the trunk of the car and revealed 10 gallon-sized bags of methamphetamine, law enforcement moved in and arrested all three individuals.

On these facts, the IJ determined that Rojas was inadmissible under § 1182(a)(2)(C) because there was a reason to believe that he had been either an illicit trafficker in methamphetamine, a controlled substance, or a knowing conspirator in such trafficking. The IJ also denied Rojas's applications for cancellation of removal and for voluntary departure and ordered Rojas removed to Mexico. Rojas subsequently appealed the IJ's decision to the BIA.

In April 2019, without addressing his arguments on the § 1182(a)(2)(C) charge, the BIA dismissed Rojas's appeal solely on the basis of his inadmissibility under § 1182(a)(6)(A)(i). Rojas then timely filed this petition for review, see 8 U.S.C. § 1252(b)(1), along with a motion for a stay of removal. The government moved to dismiss Rojas's petition. In July 2019, upon consideration of the parties’ motions, we granted Rojas a limited stay of removal and remanded the case to the BIA for the limited purpose of determining whether Rojas is inadmissible under § 1182(a)(2)(C). In September 2019, the BIA once again dismissed Rojas's appeal, finding that the record supported the IJ's determination that there was reason to believe that Rojas was involved in illicit drug trafficking. We now consider the merits of Rojas's petition.

II.

As a general matter, we lack jurisdiction "to review any final order of removal against [a noncitizen] who is removable by reason of having committed a criminal offense covered" in § 1182(a)(2). Id. § 1252(a)(2)(C). We do, however, have jurisdiction to review "preliminary jurisdictional facts." Gavilan-Cuate v. Yetter, 276 F.3d 418, 420 (8th Cir. 2002) ; see also Moussa v. I.N.S., 302 F.3d 823, 825 (8th Cir. 2002) ("[W]e necessarily have jurisdiction to determine our jurisdiction."); cf. Alzawed v. Barr, 970 F.3d 997, 1000 (8th Cir. 2020) (explaining that we also retain jurisdiction over constitutional claims and questions of law). In doing so, "we review the BIA's fact-findings for substantial evidence, and ... its legal determinations, as well as any constitutional challenges, de novo." Zeah v. Holder, 744 F.3d 577, 580 (8th Cir. 2014) (cleaned up); see also Alzawed, 970 F.3d at 1000 (explaining that when, as here, the BIA "issues a separate opinion instead of summarily affirming" the IJ, we review "the BIA's decision as the final agency determination").

To determine whether we have jurisdiction over Rojas's petition for review, we must therefore determine whether he is "removable by reason of having committed a criminal offense covered in [§] 1182(a)(2)," 8 U.S.C. § 1252(a)(2)(C). The answer to that question depends on whether the BIA "ha[d] reason to believe" that Rojas was "an illicit trafficker in a[ ] controlled substance" or "a knowing aider, abettor, assister, conspirator, or colluder with others" in such illicit trafficking.¹

Id. § 1182(a)(2)(C)(i). As a result, "our jurisdictional inquiry merges with the merits of [Rojas's] challenge," Lopez v. U.S. Att'y Gen., 914 F.3d 1292, 1298 (11th Cir. 2019), wherein he argues that there was insufficient reason to believe that he was involved in drug trafficking. See id. (explaining the need to decide the "underlying factual question" of whether the noncitizen was convicted of simple possession or possession with intent to deliver in order "to determine whether he is removable because of that criminal conviction and, therefore, whether [ § 1252(a)(2)(C) ’s] jurisdictional limitations apply"); cf. Brownback v. King, ––– U.S. ––––, 141 S. Ct. 740, 750, 209 L.Ed.2d 33 (2021) ("Because a federal court always has jurisdiction to determine its own jurisdiction, a federal court can decide an element of a[ ] ... claim on the merits if that element is also jurisdictional." (cleaned up)).

Though the INA does not define the phrase "reason to believe" in the context of § 1182(a)(2)(C), the BIA here interpreted it as a " ‘probable cause’ requirement." Admin. R. at 4; cf. Matter of A-H-, 23 I. & N. Dec. 774, 788-89 (A.G. 2005) (equating "reasonable grounds for regarding" with the "probable cause" standard). We have recently applied the same interpretation to similar language in the Act. See United States v. Puebla-Zamora, 996 F.3d 535, 538–39 (8th Cir. 2021) (interpreting "reason to believe" in 8 U.S.C. § 1357(a)(2) as requiring "probable cause"); Barahona v. Garland, 993 F.3d 1024, 1025 (8th Cir. 2021) ("We hold that the ‘serious reasons for believing’ standard requires a finding of probable cause before an alien can be subject to the mandatory bar set forth in 8 U.S.C. § 1158(b)(2)(A)(iii), 8 U.S.C. § 1231(b)(3)(B)(iii), and 8 C.F.R. § 1208.16(d)(2)."). Accordingly, we agree with the BIA that § 1182(a)(2)(C) ’s "reason to believe" language requires a finding of probable cause.

Applying these principles to the case at hand, there is substantial evidence in the record to support the BIA's conclusion that there was probable cause to believe Rojas was involved in illicit drug trafficking. See Lopez, 914 F.3d at 1298 (applying substantial evidence standard to factual question underlying jurisdictional inquiry); cf. Rodriguez v. Mukasey, 519 F.3d 773, 777-78 (8th Cir. 2008) (concluding that BIA did not err in finding petitioner inadmissible because there was substantial evidence that he had "falsely represented himself as a citizen"). Probable cause requires that there "be a ‘fair probability’ or a ‘substantial chance’ that the person ... has committed an offense." Bell v. Neukirch, 979 F.3d 594, 603 (8th Cir. 2020) (quoting Illinois v. Gates, 462 U.S. 213, 243 n.13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ). And here, not only did law enforcement find several thousand grams of methamphetamine in the same car as Rojas at the time of his arrest, but Rojas also admitted that (1) his nephew had actually told him they were transporting drugs, and (2) he had overheard his nephew talking about being paid at least $30,000 for the trip. Further, the little evidence Rojas proffered to the contrary is not "so compelling that no reasonable factfinder could fail to find in [his] favor." Garcia-Milian v. Lynch, 825 F.3d 943, 945 (8th Cir. 2016) (...