Misael Flores-Martinez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 9, 2020
• Docket: 18-72304
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MISAEL FLORES-MARTINEZ, No. 18-72304

Petitioner, Agency No. A208-939-643

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted June 5, 2020** Seattle, Washington

Before: GOULD, BEA, and MURGUIA, Circuit Judges.

Misael Flores-Martinez (“Flores-Martinez”), a native and citizen of Mexico,

petitions for review of the Board of Immigration Appeals’s (“BIA”) dismissal of

his appeal from an immigration judge’s (“IJ”) entry of a final order of removal.

Flores-Martinez challenges the agency’s determination that he is inadmissible and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). consequently statutorily ineligible for cancellation of removal, and further argues

that his case required the review of a three-member panel of the BIA.

We have jurisdiction to determine whether the Immigration and Nationality

Act, 8 U.S.C. § 1101 et seq., bars our review of the removal order. See 8 U.S.C. §

1252(a)(2)(C) (“[Absent specified exceptions] no court shall have jurisdiction to

review any final order of removal against an alien who is removable by reason of

having committed a criminal offense covered in [8 U.S.C. §] 1182(a)(2) . . . .”);

Lopez–Molina v. Ashcroft, 368 F.3d 1206, 1208 (9th Cir. 2004) (“This court

determines for itself whether [petitioner’s] case falls within the parameters of this

jurisdiction-stripping provision. In other words, we have jurisdiction to consider

our own jurisdiction.”). We review for substantial evidence the agency’s

determination that there is “reason to believe” Flores-Martinez is or has been an

illicit trafficker in any controlled substance and is therefore inadmissible. 8 U.S.C.

§ 1182(a)(2)(C)(i); Alarcon–Serrano v. I.N.S., 220 F.3d 1116, 1119 (9th Cir.

2000). The BIA’s determination must be upheld unless “the evidence compels a

contrary conclusion.” Alarcon-Serrano, 220 F.3d at 1119. The test is not whether

“a generous fact-finder might have believed [petitioner’s] version of the facts.” Id.

at 1120. Notwithstanding the above-mentioned limitation on our jurisdiction, we

retain jurisdiction to review de novo questions of law. See 8 U.S.C. §

1252(a)(2)(D); Chavez-Reyes v. Holder, 741 F.3d 1, 3 (9th Cir. 2014). We dismiss

2 in part and deny in part the petition for review.

1. Unlike many other grounds for inadmissibility and removability, 8

U.S.C. § 1182(a)(2)(C)(i) does not require a conviction for an alien to be deemed

inadmissible or removable. Lopez-Molina, 368 F.3d at 1209. Rather, the agency’s

determination need be supported only by “reasonable, substantial, and probative

evidence.” Alarcon–Serrano, 220 F.3d at 1119 (citing Hamid v. I.N.S., 538 F.2d

1389, 1390–91 (9th Cir. 1976)).

Here, the BIA’s determination that there was “reason to believe” that Flores-

Martinez was involved in drug trafficking rests on reasonable, substantial, and

probative evidence. The government introduced a declaration, signed under

penalty of perjury, from an arresting officer attesting to details of Flores-

Martinez’s suspected involvement in an illicit drug transaction—a woman entering

Flores-Martinez’s vehicle for a short while, packing material with heroin residue

underneath the driver’s seat of Flores-Martinez’s vehicle, a large amount of cash

on Flores-Martinez’s person, a “moderate to large” amount of heroin on the

woman’s person, and a statement from the woman that she purchased heroin from

Flores-Martinez on this occasion and previous ones as well. In addition to the

declaration, Flores-Martinez’s own guilty plea stipulates that there is a “factual

3 basis in the allegations to support the charges in the original information”1 and

states that Flores-Martinez “believe[s] there is a significant risk of conviction of

the original charges.” Flores-Martinez’s own evidence, upon which he rests a

claim of innocence, does not “compel a contrary conclusion.” Alarcon–

Serrano, 220 F.3d at 1119.

2. Furthermore, Flores-Martinez’s appeal was properly assigned for

disposition to a single BIA member. Applicable regulations authorize a single

member to affirm an IJ’s decision. See 8 C.F.R. § 1003.1(e)(4), (5). A case may

be assigned for a review by a three-member panel only if it presents one of seven

circumstances delineated in 8 C.F.R. § 1003.1(e)(6).2 None of those circumstances

is present here.

In support of his argument that a three-member panel of the BIA should

have reviewed his case, Flores-Martinez points to the fifth circumstance, 8 C.F.R.

1 The original information charged Flores-Martinez with delivery of a controlled substance (heroin) and possession of a controlled substance other than marijuana (heroin) in violation of Washington state law. 2 The seven circumstances are: (1) the need to settle inconsistencies among the rulings of different immigration judges; (2) the need to establish a precedent construing the meaning of laws, regulations, or procedures; (3) the need to review a decision by an immigration judge or the Department of Homeland Security (“DHS”) that is not in conformity with the law or with applicable precedents; (4) the need to resolve a case or controversy of major national import; (5) the need to review a clearly erroneous factual determination by an immigration judge; (6) the need to reverse the decision of an immigration judge or DHS, other than a reversal under § 1003.1(e)(5); or (7) the need to resolve a complex, novel, unusual, or recurring issue of law or fact. 8 C.F.R. § 1003.1(e)(6)(i)–(vii).

4 § 1003.1(e)(6)(v), which establishes “[t]he need to review a clearly erroneous

factual determination by an [IJ],” and claims that the IJ made a clearly erroneous

factual determination when he stated that Flores-Martinez “pled to the original

information.” Nevertheless, as explained by the BIA and by the government, the

misstatement was harmless as it is clear from the IJ’s earlier statements that the IJ

understood the significance of Flores-Martinez’s guilty plea and the accompanying

stipulation. The IJ previously stated that Flores-Martinez: (1) “entered the

equivalent of an offered plea . . . agreeing that there was sufficient evidence to

convict him based on the charges in the original information;” and (2) “pled guilty

conceding that there was enough to convict him based on the original information.”

In sum, the agency did not err in finding Flores-Martinez inadmissible under

8 U.S.C. § 1182(a)(2)(C)(i), and accordingly statutorily ineligible for cancellation

of removal. See 8 U.S.C. §§ 1101(f)(3), 1229b(b)(1)(B). Nor is remand to the

BIA required for review by a three-member panel.

PETITION DISMISSED in part and DENIED in part.