Misael Flores-Martinez v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED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
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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
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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).
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§ 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.
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