Mena-Flores v. Holder
776 F.3d 1152
| 10th Cir. | 2015Background
- Gustavo Mena Flores entered the U.S. unlawfully (1990); DHS commenced removal; he conceded removability as undocumented but applied to adjust status based on marriage to a U.S. citizen.
- DHS opposed adjustment, relying on evidence from a state drug prosecution (Mena Flores was acquitted) and argued there was a “reason to believe” he participated in drug trafficking, which makes him ineligible for adjustment under § 1182(a)(2)(C).
- At first IJ hearing the judge granted adjustment; on DHS appeal the BIA remanded. On remand the IJ denied adjustment, crediting testimony from several cooperating witnesses, an agent’s affidavit, and finding Mena Flores not credible; the BIA affirmed.
- Mena Flores filed motions to reopen and to reconsider based on (1) new/transcript evidence and ineffective assistance of prior counsel, (2) character references, and (3) a claimed DHS misattribution that overstated the number of witnesses. The BIA denied both motions; he sought judicial review of the denial of adjustment and the denials to reopen/reconsider.
- The Tenth Circuit concluded it had jurisdiction, rejected DHS jurisdictional bars, reviewed the BIA’s factual findings for substantial evidence, and denied all petitions: (1) the record provided a reason to believe Mena Flores participated in trafficking, and (2) the BIA did not abuse its discretion in refusing to reopen or reconsider.
Issues
| Issue | Plaintiff's Argument (Mena Flores) | Defendant's Argument (DHS) | Held |
|---|---|---|---|
| Whether §1252(a)(2)(C) (no review of orders removing aliens for certain crimes) strips courts of jurisdiction here | §1252(a)(2)(C) shouldn’t bar review because he was removed for unlawful presence, not for drug trafficking | §1252(a)(2)(C) applies because evidence could have supported removal for drug trafficking | Court: §1252(a)(2)(C) does not bar review because the agency did not order removal on drug-trafficking grounds; ambiguous “is removable” construed to require an agency finding of removability for the listed crimes. |
| Whether §1252(a)(2)(B)(i) (no review of discretionary relief) prohibits review of eligibility findings for adjustment | Mena Flores: court may review nondiscretionary eligibility determinations (e.g., whether a mandatory bar applies) | DHS: adjustment is discretionary so courts lack jurisdiction | Court: §1252(a)(2)(B)(i) does not bar review of nondiscretionary eligibility questions; review of whether a mandatory statutory bar applies is permitted. |
| Whether Mena Flores exhausted administrative remedies under §1252(d)(1) for arguments about witness inconsistencies and misattribution | He raised these arguments in motions to reopen/reconsider and BIA addressed them on the merits | DHS contends some arguments were unexhausted | Court: exhausted — the BIA addressed the claims on the merits, satisfying exhaustion. |
| Whether substantial evidence supports the BIA/IJ finding that there was a “reason to believe” Mena Flores participated in drug trafficking (making him ineligible) | Mena Flores: witnesses were unreliable, no officer eyewitness, personal good character, and DHS misattributed evidence; the case was a close call | DHS: several cooperating witnesses, corroborative statements, and agent affidavit provided reasonable, substantial, probative evidence to support a reason-to-believe finding | Court: Held for DHS — substantial evidence (statements by multiple participants, affidavit, and IJ credibility findings) supported a reason-to-believe that precluded adjustment. |
Key Cases Cited
- Calcano-Martinez v. INS, 533 U.S. 348 (ambiguity in jurisdictional language informs construction favoring review)
- INS v. St. Cyr, 533 U.S. 289 (strong presumption in favor of judicial review of administrative action)
- Cuevas v. Holder, 737 F.3d 972 (an alien can be inadmissible under §1182(a)(2)(C) without a conviction)
- Elzour v. Ashcroft, 378 F.3d 1143 (substantial-evidence standard governs factual and credibility findings)
- Shepherd v. Holder, 678 F.3d 1171 (distinguished; court retained limited jurisdiction over threshold issues but did not permit courts to make new factual findings triggering §1252(a)(2)(C))
- Garcia v. INS, 237 F.3d 1216 (statutory language requires determining whether triggering conditions exist before dismissing appeal)
- INS v. Elias-Zacarias, 502 U.S. 478 (establishes standard of review for factual findings in immigration cases)