Conviction Unnecessary to be Inadmissible for Reason to Believe Drug Trafficker

Cuevas v. Holder, No. 13-60150 (Dec. 10, 2013) (Jolly, Smith, Clement)

Cuevas sought review of the Board of Immigration Appeals’ decision concluding that he was inadmissible pursuant to 8 U.S.C. § 1182(a)(2)(C) because there was reason to believe he was a drug trafficker.  The immigration judge (IJ) initially concluded that Cuevas was a drug trafficker because agents found nearly 24 kilograms of cocaine concealed in the rear panel of Cuevas’ car when he was reentering the United States from Mexico, he bought two weeks before, and he had exclusive control over the vehicle except for a period of 60 and 90 minutes while his headlight was fixed at a mechanic’s shop in Mexico.  The BIA remanded, instructing the IJ to determine whether the DHS had “proven by clear, unequivocal, and convincing evidence” that there exists reason to believe that Cuevas was a drug trafficker.

On remand, the IJ relied on additional evidence to conclude Cuevas was a drug trafficker: he was driving his own car, there were fresh weld marks on the rear quarter panel, and the quantity of cocaine indicated illegal trafficking.  The IJ gave very little weight to Cuevas’ testimony that he did not know the cocaine was there and had not noticed the modifications made to his car to hide the cocaine.  The BIA approved of the IJ’s decision the second time around.

On review, the panel affirms the BIA’s decision, joining the other circuits that have held that a conviction is unnecessary to be inadmissible pursuant to § 1182(a)(2)(C).  The panel does not determine the exact measure of evidence needed, however.  The First Circuit requires evidence equivalent to a probable cause standard, and the Ninth Circuit requires a greater showing of reasonable, substantial, and probative evidence.  The panel concludes that the DHS meets either standard in this case.  As such, the panel lacks jurisdiction to consider the petition for review and dismisses the case.