Robson De Maria v. Attorney General United States ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 20-1205
___________
ROBSON C. DE MARIA, a/k/a Robson Cavalcante De Maria,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A214-203-531)
Immigration Judge: Leo A. Finston
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 8, 2020
Before: AMBRO, GREENAWAY, JR. and PORTER, Circuit Judges
(Opinion filed: September 17, 2020)
___________
OPINION*
___________
PER CURIAM
Robson De Maria petitions for review of a decision of the Board of Immigration
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Appeals (BIA). For the reasons below, we will deny the petition for review.
De Maria, a citizen of Brazil, entered the United States in 2014 as a visitor. In
2018, he was charged as removable for overstaying his admission period. Initially he
proceeded pro se, and an Immigration Judge (IJ) sustained the charge of removability.
De Maria applied for adjustment of status based on his marriage in 2016 to a United
States citizen. He also applied for asylum, withholding of removal, and protection under
the Convention Against Torture (CAT).
After a hearing, at which De Maria was represented by counsel, the IJ denied
relief. The IJ found that De Maria was not a credible witness and concluded that he was
ineligible to adjust his status because there was “reason to believe” that he was
inadmissible as a drug trafficker. 8 U.S.C. § 1182(a)(2)(C). In making this
determination, the IJ relied on a criminal complaint and related documents filed by
authorities in Brazil and obtained by the Government. A.R. at 201-232. In the
alternative, the IJ found that De Maria did not warrant adjustment as a matter of
discretion. The IJ denied the asylum application as untimely and noted that De Maria
presented no testimony in support of his requests for withholding of removal and CAT
relief and instead relied only on the record. The IJ determined that he had not met his
burden for relief and denied the applications.
De Maria then filed a counseled appeal to the BIA, contesting only the IJ’s denial
of his application to adjust his status. The BIA upheld the IJ’s determination that there
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was reason to believe that De Maria had participated in drug trafficking and rejected his
arguments that the admission of the evidence of his drug trafficking violated his right to
due process. The BIA did not address the IJ’s alternative holding that De Maria was not
entitled to adjustment of status as a matter of discretion.
De Maria filed a timely petition for review, and we have jurisdiction pursuant to 8
U.S.C. § 1252. De Maria spends many pages of his brief challenging the IJ’s denial of
his applications for asylum, withholding of removal, and relief under the CAT, but he did
not challenge the IJ’s denial of relief on appeal to the BIA. Thus, any such arguments are
unexhausted, and we lack jurisdiction over them. See 8 U.S.C. § 1252(d)(1) (Court may
review final order of removal only if “the alien has exhausted all administrative remedies
available to the alien as of right”); Castro v. Att’y Gen., 671 F.3d 356, 365 (3d Cir.
2012).
The only issue raised by De Maria in his brief and exhausted before the BIA was
his challenge to the denial of adjustment of status on the ground that De Maria was
inadmissible as a drug trafficker. De Maria challenged that determination as well as the
admission of the evidence supporting that determination. Thus, we will consider those
two arguments.
Criminal Complaint
In the 22-page complaint, a federal prosecutor in Brazil described the evidence
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supporting the allegation that De Maria1 had trafficked drugs between Brazil and Europe
using drug mules. The complaint contains excerpts of Facebook messages and wiretap
transcripts and refers to lengthy attachments which were not included in the record. We
will briefly summarize the allegations relevant to De Maria.
In July 2013, a Brazilian woman named Leticia was caught in Amsterdam with
nearly 3500 grams of cocaine hidden in her luggage. Leticia’s cousin, Natalia, told
police that she had accessed Leticia’s Facebook account and noticed that she had been
“co-opted” by De Maria and a woman named Julianna to take a trip abroad. In a
Facebook message, Leticia had made plans to meet with De Maria on June 17, 2013. She
later discussed the trip with Julianna who tried to reassure her that she would not get
caught. During one conversation, Julianna mentions that De Maria’s ex-wife had made
similar trips.
The criminal complaint states that De Maria prepared the documents for Leticia’s
trip and refers to conversations between De Maria and Leticia in the attachments. It was
noted that Leticia’s passport was issued through De Maria’s email -
robsontatoo@hotmail.com. (De Maria testified that he worked as a tattoo artist in Brazil
and the United States.) After Leticia was arrested in Amsterdam, De Maria had
conversations with her cousin Natalia. Excerpts of their phone conversations are in the
criminal complaint. A.R. at 217-219. After De Maria denied participating in human
1
De Maria is referred to by his first name, Robson, throughout the complaint
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trafficking, he admitted to Natalia that he was involved in drug trafficking. He informed
Natalia that Leticia “just went to deliver an order, she didn’t even ingest anything, okay.”
He later mentions that his wife did such a trip twice.
A second incident described in the complaint involved a trip by De Maria’s ex-
wife, Cristiane. A.R. at 221-227. The email account used to purchase her ticket was
accessed from De Maria’s home.2 Before she arrived back from the Netherlands with
Ecstasy, De Maria was recorded multiple times discussing how the drugs would be
handled on her return.
In his testimony before the IJ, De Maria flatly denied the accusations in the
criminal complaint. He denied knowing Leticia, Natalia, or Julianna but admitted that
Cristiane was his ex-girlfriend. He admitted that he had received calls from Leticia’s
family accusing him of introducing Leticia to a Colombian man named in the criminal
complaint. He also testified that he received documents from Brazil informing him that
Leticia was caught with nearly 3500 grams of cocaine. As noted above, the IJ found that
De Maria was not credible.
Due process claim
De Maria argued that the admission of the criminal complaint was fundamentally
unfair and denied him due process. We review de novo whether De Maria’s rights to due
2
The address listed in the criminal complaint is the same one De Maria provided on his
application to adjust status.
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process were violated. Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003).
Evidence is admissible in removal proceedings if it is probative and its use is
fundamentally fair. Id. The fairness of the admission of evidence depends on whether
the evidence is reliable and trustworthy. Id. Hearsay evidence is admissible, although
its nature may affect the weight it is given. Kiareldeen v. Ashcroft, 273 F.3d 542, 549
(3d Cir. 2001).
Citing Ezeagwuna, De Maria appears to argue that the criminal complaint contains
hearsay that should not have been admitted. In Ezeagwuna, the Government submitted a
two-page letter from the Vice Consul of the Embassy in Cameroon. The letter summarily
described the results of an investigation conducted into documents submitted by the alien
in support of her asylum claim. The Consul concluded that the documents were
fraudulent but gave no information about the investigation or the investigator.
Ezeagwuna, 325 F.3d at 401. After the alien objected, the Government subsequently
provided a two-page letter from the Department of State which used the same language as
the first letter. This second letter was presented three days before the hearing. Without
explanation, the IJ admitted the second letter over the alien’s objections. Id. at 402. In
concluding the admission of the second letter violated the alien’s right to due process
because it was not reliable and trustworthy, we noted that no information had been
provided regarding how the investigation was conducted. We observed that the letter
contained multiple levels of hearsay and did not identify the primary investigator. Id. at
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408.
Here, however, the 22-page criminal complaint thoroughly described how the
investigation was conducted. A.R. at 207-228. While some of the evidence is hearsay,
we note that several pieces of evidence were based on De Maria’s own statements made
in Facebook messages and in conversations caught on wiretap. Moreover, as noted
above, hearsay evidence is admissible. Kiareldeen, 273 F.3d at 549.
De Maria argues that the Government deprived him of the opportunity to disprove
the accusations because it did not provide him with the attachments to the criminal
complaint. However, De Maria, who was represented by counsel before the IJ, does not
state whether he attempted to obtain the attachments or how they would assist him in
disproving the allegations that he denies completely. De Maria complains that he had
only three weeks to review the report but does not suggest how much time he would have
needed to respond to the accusations in the criminal complaint.
The admission of the criminal complaint did not violate De Maria’s right to due
process as the complaint appears reliable and trustworthy. The detailed, thorough
complaint was issued by a federal prosecutor in Brazil and contained excerpts of
inculpatory conversations by De Maria. The BIA did not err in admitting the criminal
complaint.
Reason to believe De Maria was a drug trafficker
Because De Maria was seeking adjustment of status, he had the burden to show he
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was admissible. Parra-Rojas v. Att’y Gen., 747 F.3d 164, 168 (3d Cir. 2014). An alien is
inadmissible if the Attorney General “has reason to believe” he has been a trafficker of a
controlled substance. 8 U.S.C. § 1182(a)(2)(C). An alien can be inadmissible under this
subsection even without a conviction for drug trafficking. See Cuevas v. Holder, 737
F.3d 972, 975 (5th Cir. 2013); Garces v. Att’y Gen., 611 F.3d 1337, 1345 (11th Cir.
2010); Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1053 (9th Cir. 2005).
We review the BIA’s determination that De Maria was inadmissible for substantial
evidence. See Mena-Flores v. Holder, 776 F.3d 1152, 1161 (10th Cir. 2015); Garces, 611
F.3d at 1346-47; Lopez-Molina v. Ashcroft, 368 F.3d 1206, 1211 (9th Cir. 2004). Under
the substantial evidence standard, the Court defers to factual findings “unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B); Espinosa-Cortez v. Att’y Gen., 607 F.3d 101, 106-07 (3d Cir. 2010).
Here, the BIA concluded that the record contained reasonable, substantial, and
probative evidence to support the finding that there was reason to believe De Maria had
trafficked drugs. In so concluding, the BIA stated that the criminal complaint alleged
that [De Maria] and a cohort had planned, financed, and facilitated, through
the recruitment of “mules,” international drug trafficking between Brazil
and Europe. This complaint sets forth [De Maria]’s alleged participation in
the scheme in exhaustive detail, and includes, inter alia, transcripts of the
intercepted conversations between [De Maria] and co-conspirators via
hidden recording devices and wiretapped telephones, and discussions of the
contents of a forensic report, email communications, and photographs and
airport security footage of [De Maria] participating in the scheme.
A.R. at 4. De Maria argues that the complaint contains contradictory statements and is
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based on second-hand knowledge; however, he ignores his own statements in the
Facebook messages and wiretaps excerpted in the criminal complaint. De Maria has not
demonstrated that any reasonable adjudicator would be compelled to conclude that there
was no reason to believe he was a drug trafficker.
For the above reasons, we will deny the petition for review.
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