Medellin-Zapata v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 13, 2022
• Docket: 20-9653
• Status: Unpublished

Opinion

Appellate Case: 20-9653 Document: 010110631503 Date Filed: 01/13/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 13, 2022 _________________________________ Christopher M. Wolpert Clerk of Court LUIS RAMON MEDELLIN-ZAPATA,

Petitioner,

v. No. 20-9653 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, Chief Judge, MORITZ and ROSSMAN, Circuit Judges. _________________________________

An Immigration Judge (IJ) ordered Luis Ramon Medellin-Zapata (Petitioner)

removed from the United States based on his conviction of an aggravated felony—

conspiracy to commit noncitizen smuggling. The Board of Immigration Appeals

(BIA) upheld the IJ’s order. Petitioner has filed a petition for review. Exercising

jurisdiction under 8 U.S.C. § 1252(a), we dismiss the petition in part for lack of

jurisdiction and otherwise deny the petition.

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 20-9653 Document: 010110631503 Date Filed: 01/13/2022 Page: 2

I. BACKGROUND

Petitioner is a native and citizen of Mexico, and his wife is a lawful permanent

resident. They have three children. The eldest, Luis, was removed from the United

States in 2011 and 2016. Their middle son, Edgar, holds a U-visa.1 And their

youngest, Marco, is a United States citizen. In 2018, Petitioner was a U-visa holder

and applied to adjust his status to lawful permanent resident. While in detention for

the noncitizen-smuggling offense at issue in this case, his application was approved.

In May 2019, Petitioner’s wife told him that Luis had called and said he

intended to return to the United States by crossing the border with an individual, and

a second person would drive him to Santa Fe, New Mexico, where Petitioner and his

family lived. Two weeks later, Luis called to say he had crossed the border near

El Paso, Texas, but the person who was supposed to pick him up never arrived.

Petitioner felt he could not leave his son alone and let his wife down, so he and Edgar

drove to Texas to get Luis.

That evening, a Border Patrol agent learned that two individuals had gone over

the border fence near El Paso. As he responded, the agent was advised that two

individuals were seen running through a backyard and likely to emerge on Petunia

Drive in San Elizario, Texas. The agent saw Petitioner’s car on Petunia Drive, just

north of the border fence, and followed it for several streets until it made a left turn.

1 “The U-Visa classification covers eligible aliens who are victims of serious crime and who cooperate with law enforcement.” Gonzalez v. Cuccinelli, 985 F.3d 357, 362 (4th Cir. 2021). 2 Appellate Case: 20-9653 Document: 010110631503 Date Filed: 01/13/2022 Page: 3

The agent then stopped the car and found Edgar and Petitioner in the front seat, and

Luis and another man (Victor) lying down in the back seat. A second Border Patrol

agent arrived to assist with the traffic stop. After some questioning, Luis and Victor

admitted they had just crossed the border illegally. All four were arrested.

Petitioner pleaded guilty to one count of conspiring to transport and move

noncitizens within the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I),

(a)(1)(A)(ii), and (a)(1)(B)(i). He was convicted and sentenced to time served and

three years of supervised release.

Based on that conviction, the Department of Homeland Security (DHS) issued

Petitioner a Notice to Appear, charging him with removability under 8 U.S.C.

§ 1227(a)(2)(A)(iii) as a noncitizen convicted of an aggravated felony after

admission, namely, an attempt or conspiracy to commit an offense described in

8 U.S.C. § 1101(a)(43)(N) related to noncitizen smuggling. See id. § 1101(a)(43)(U)

(including “an attempt or conspiracy to commit an offense described in

[§ 1101(a)(43)]” among list of offenses constituting an “aggravated felony”). In

relevant part, § 1101(a)(43)(N) defines “aggravated felony” to include the offense

Petitioner was convicted of: “an offense described in paragraph (1)(A) or (2) of

section 1324(a) of this title (relating to alien smuggling).”

Petitioner denied the allegations against him and contested the charge of

removability based on a family exception in § 1101(a)(43)(N). The family exception

provides that noncitizen smuggling is not an aggravated felony “in the case of a first

offense for which the alien has affirmatively shown that the alien committed the

3 Appellate Case: 20-9653 Document: 010110631503 Date Filed: 01/13/2022 Page: 4

offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child,

or parent (and no other individual) to violate a provision of this chapter.”

§ 1101(a)(43)(N) (emphasis added). There apparently was no question it was

Petitioner’s first such offense, so the issue before the IJ was whether Petitioner could

affirmatively show he committed the offense for the purpose of assisting, abetting, or

aiding Luis but not Victor.

According to Petitioner and Edgar, when they arrived to pick up Luis, they

saw Luis run to and get in the car. Petitioner then saw Victor. Luis had not

mentioned there was another person with him, and Petitioner did not know who

Victor was, whether he had crossed the border with Luis, or whether Victor was

lawfully in the United States. Nor did Petitioner have a chance to ask any questions

about Victor because they were arrested as soon as the two men got in the car.

Petitioner disclaimed any intent to help Victor or any knowledge of his immigration

status.

The IJ applied a “circumstance-specific” approach, which requires “look[ing]

to the facts and circumstances underlying an offender’s conviction,” Nijhawan v.

Holder, 557 U.S. 29, 34 (2009). Under that approach, the IJ found Petitioner failed

to meet his burden of establishing he committed the offense for the purpose of

assisting, abetting, or aiding only Luis. First, the IJ found it “implausible” that

Petitioner had no knowledge that anyone would be with Luis at the pickup location,

because Petitioner admitted he and his wife knew Luis would be crossing the border

with another person. R. at 68. The IJ found it reasonable to interpret that admission

4 Appellate Case: 20-9653 Document: 010110631503 Date Filed: 01/13/2022 Page: 5

to mean another person would unlawfully cross the border with Luis and it was

possible the other person would still be with Luis when Petitioner arrived to pick up

Luis. And although it did not appear Luis told Petitioner the other person would be

traveling to Santa Fe with him, it also did not appear Luis said he would be alone

when Petitioner picked him up.

Second, the IJ found Petitioner’s testimony that he did not know if Victor had

crossed the border illegally with Luis “both implausible and unbelievable.” Id. In

support of that finding, the IJ explained that Petunia Drive, where Petitioner picked

up the two men between 7:00 and 8:00 p.m., runs parallel to the border

approximately 400 feet north of the border fence. Victor was with Luis, who had just

crossed the border illegally; they were present in an area very close to the border

fence “at that time of night”; and both “were apparently ‘covered in dust and small

pieces of debris from brush that they may have run through.’” Id. (quoting Criminal

Complaint, R. at 204).

Third, there was evidence that competed with Petitioner’s testimony—the

criminal complaint and a narrative one of the Border Patrol agents had completed.

The IJ found this evidence “directly contradicted” Petitioner’s testimony that he had

no chance to ask Victor who he was because they were pulled over as soon as Luis

and Victor got in the car. Id. The IJ observed that neither responding agent saw Luis

and Victor get in Petitioner’s car, so Petitioner had already picked them up by the

5 Appellate Case: 20-9653 Document: 010110631503 Date Filed: 01/13/2022 Page: 6

time the first agent encountered the car on Petunia Drive.2 Further, the length of time

the first agent followed the car allowed him to check the registration. These facts,

the IJ found, demonstrated that Petitioner had sufficient time to question Luis or

Victor about Victor’s identity and immigration status; to believe otherwise, the IJ

said, “strains credulity.” R. at 69. But even if Petitioner never asked Victor about

his identity, Petitioner “at least acquiesced to an unknown individual entering and

concealing himself in his backseat with [Luis], who the respondent knew had just

crossed the border illegally.” Id. And although Petitioner’s initial purpose may have

been to pick up only Luis, that purpose changed when he allowed both Luis and

Victor “to enter the vehicle and conceal themselves”; at that point, Petitioner’s

“purpose necessarily shifted from not only assisting Luis . . . but [Victor] as well.”

Id.

For these reasons, the IJ sustained the charge of removability against Petitioner

and ordered his removal to Mexico. The BIA summarily agreed with the IJ’s

decision and dismissed Petitioner’s appeal.

II. DISCUSSION

A single BIA member issued a brief order deciding the merits of Petitioner’s

appeal, so the BIA’s order is the final order of removal we review. See Uanreroro v.

Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). But because the BIA upheld the

2 In summarizing the competing evidence, the IJ did not distinguish between the two agents, but the record makes clear that the second agent did not arrive until after the first agent had pulled the car over. 6 Appellate Case: 20-9653 Document: 010110631503 Date Filed: 01/13/2022 Page: 7

IJ’s decision without adding any of its own analysis, we consult the IJ’s decision

where necessary to understand the grounds for the BIA’s decision. See id. We

review legal conclusions de novo and factual findings for substantial evidence.

Vicente-Elias v. Mukasey, 532 F.3d 1086, 1091 (10th Cir. 2008). Under the

substantial-evidence standard, “administrative findings of fact are conclusive unless

any reasonable adjudicator would be compelled to conclude to the contrary.”

8 U.S.C. § 1252(b)(4)(B).

A. Credibility

Petitioner first argues the BIA erred by not remanding the case to the IJ for a

credibility finding.3 But Petitioner did not ask the BIA for such a remand. Instead,

Petitioner urged the BIA to decide “whether [he] and his witnesses [were] credible.”

R. at 21. To that end, he asserted he and his witnesses were entitled to “a rebuttable

presumption of credibility on appeal” because the IJ “did not make a specific

credibility finding” and “DHS did not challenge the testimony whatsoever and

accepted the proffered testimony in its entirety.” R. at 21-22. Because Petitioner did

not raise the issue of remand with the BIA, he has not exhausted his administrative

remedies, and therefore we lack jurisdiction to consider this argument. See 8 U.S.C.

§ 1252(d)(1) (“A court may review a final order of removal only if . . . the alien has

3 In addressing this argument, we assume, without deciding, that the IJ did not make an express credibility finding despite his use of the terms “implausible,” “unbelievable,” “directly contradicted,” and “strains credulity” when evaluating Petitioner’s testimony, see R. at 68-69.

7 Appellate Case: 20-9653 Document: 010110631503 Date Filed: 01/13/2022 Page: 8

exhausted all administrate remedies available to the alien as of right[.]”);

Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010) (“To satisfy

§ 1252(d)(1), an alien must present the same specific legal theory to the BIA before

he or she may advance it in court.”); see also Robles-Garcia v. Barr, 944 F.3d 1280,

1284 (10th Cir. 2019) (“[F]ailure to exhaust an issue, as § 1252(d)(1) requires in the

immigration removal context, deprives us of jurisdiction to consider that issue.”

(internal quotation marks omitted)).4

B. Substantiality of the evidence

Petitioner argues the agency erred in finding he did not meet his burden of

establishing his conviction falls within the family exception. We reject this argument

and conclude that substantial evidence supports the agency’s finding regarding the

family exception.5

4 Petitioner may also be arguing the BIA should have afforded him a rebuttable presumption of credibility on appeal. If so, he has inadequately developed the point and therefore waived appellate review of it. See Becker v. Kroll, 494 F.3d 904, 913 n.6 (10th Cir. 2007) (“An issue or argument insufficiently raised in the opening brief is deemed waived.”). 5 The parties do not dispute the IJ’s application of a circumstance-specific approach to this issue rather than the categorical approach. See Nijhawan, 557 U.S. at 37-38 (referring to the family exception in § 1101(c)(43)(N) as an example of an exception similar to those requiring use of circumstance-specific approach); cf. United States v. Martinez-Candejas, 347 F.3d 853, 859 (10th Cir. 2003) (holding, in context of sentencing enhancements under United States Sentencing Guidelines, that “the categorical approach is not applicable to enhancements based on prior alien smuggling offenses which the defendant could negate by showing he smuggled only family members”; instead, a court may refer “to the underlying facts” of the prior offense). 8 Appellate Case: 20-9653 Document: 010110631503 Date Filed: 01/13/2022 Page: 9

Petitioner argues he credibly testified that he intended to assist Luis and not

any other individual. The IJ acknowledged that was possibly true up until the point

when Victor got in the car and both he and Luis tried to conceal themselves by lying

down on the back seat. But as noted, the IJ said at that point Petitioner’s purpose

necessarily changed because it was implausible Petitioner did not know Victor had

crossed illegally, and although Petitioner had ample time to confirm that fact, he

allowed Victor to remain in the car. Contesting those findings, Petitioner argues his

testimony establishes he did not know Victor had just crossed the border illegally and

did not have enough time to question Victor. He also asserts his story as a whole is

plausible.

These arguments are no more than a request for us to reweigh the evidence by

affording more weight to Petitioner’s testimony and that of his wife and Edgar than

to the other record evidence. But unless the record evidence compels the conclusion

that Petitioner did not intend to assist, abet, or aid Victor, we may not overturn the

IJ’s weighing of the evidence. See Vladimirov v. Lynch, 805 F.3d 955, 960 (10th Cir.

2015) (explaining that when evaluating whether substantial evidence supports an

agency’s judgment, “[w]e neither reweigh the evidence nor assess witness

credibility”). The evidence here does not compel a conclusion contrary to the IJ’s

findings on these points.

To the extent Petitioner suggests his testimony regarding his purpose or intent

trumps the IJ’s evaluation of the totality of the facts and circumstances, we reject it.

“On questions of an individual’s state of mind, courts often turn to circumstantial

9 Appellate Case: 20-9653 Document: 010110631503 Date Filed: 01/13/2022 Page: 10

evidence and surrounding circumstances.” United States v. Lantis, 17 F.4th 35, 39

(10th Cir. 2021) (internal quotation marks omitted); accord Nijhawan, 557 U.S. at 34

(explaining that the circumstance-specific approach requires “look[ing] to the facts

and circumstances underlying an offender’s conviction”). The IJ did nothing more

here. We also reject Petitioner’s argument that the IJ’s finding that Petitioner’s

purpose shifted once Victor got in the car is contrary to the plain language of the

family exception. We agree with the government that nothing in § 1101(a)(43)(N)

restricts a noncitizen’s purpose to any particular point in time when committing the

offense.

III. CONCLUSION

We dismiss the petition for review in part for lack of jurisdiction and

otherwise deny the petition for review.

Entered for the Court

Timothy M. Tymkovich Chief Judge