Florencio Cuevas v. Eric Holder, Jr.
2013 U.S. App. LEXIS 24558
| 5th Cir. | 2013Background
- Cuevas, Mexican native and US permanent resident, was found with nearly 24 kg of cocaine in his car during reentry in 2005.
- DHS charged Cuevas with removability under 8 U.S.C. § 1182(a)(2)(C) for having reason to believe he was a drug trafficker.
- Cuevas claimed he did not know the cocaine was in the vehicle and contested the sufficiency of evidence.
- An IJ found him inadmissible; on remand the IJ again held there was reason to believe Cuevas was a trafficker based on multiple circumstantial factors.
- BIA affirmed and dismissed Cuevas’s appeal, remanding to determine whether the evidence met a clear, unequivocal, and convincing standard.
- Court concludes DHS’s evidence meets the reason-to-believe standard under § 1182(a)(2)(C); review is limited and petition is dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the DHS needed a conviction to remove Cuevas | Cuevas: no conviction required | DHS: conviction not required | Conviction not required |
| What evidence suffices to establish reason to believe | Cuevas: evidence insufficient to prove knowledge | DHS: evidence sufficient under reason-to-believe standard | Evidence sufficient to support reason to believe |
| Court's jurisdiction to review under § 1182(a)(2)(C) | Cuevas challenges BIA findings; argues lack of jurisdiction if requirement not met | Government: we have jurisdiction to review whether DHS had reason to believe | Court lacks jurisdiction to review if DHS had reason to believe; petition dismissed |
Key Cases Cited
- Lopez-Umanzor v. Gonzales, 405 F.3d 1049 (9th Cir. 2005) (conviction not required for § 1182(a)(2)(C))
- Garces v. United States Atty. Gen., 611 F.3d 1337 (11th Cir. 2010) (reason-to-believe can exist without conviction)
- In re Rico, 16 I. & N. Dec. 181 (BIA 1977) (alien excluded after being caught trafficking even without conviction)
- Westover v. Reno, 202 F.3d 475 (1st Cir. 2000) (intimates probable-cause-like standard for reason to believe)
- In re U-H-, 23 I. & N. Dec. 355 (BIA 2002) (reasonable ground to believe is akin to probable cause)
- Alarcon-Serrano v. I.N.S., 220 F.3d 1116 (9th Cir. 2000) (reason-to-believe must be based on reasonable, substantial, probative evidence)
- Balogun v. Ashcroft, 270 F.3d 274 (5th Cir. 2001) (jurisdiction to review jurisdictional questions in § 1182(a)(2) cases)
- Chun v. I.N.S., 40 F.3d 76 (5th Cir. 1994) (review limited to questions of law and jurisdiction)