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Cuevas v. Holder

United States Court of Appeals, Fifth Circuit

December 10, 2013

Florencio CUEVAS, Petitioner
v.
Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.

Page 973

Anthony Matulewicz, Esq., Matulewicz & Associates, McAllen, TX, for Petitioner.

Jacob Alexander Bashyrov, Tangerlia Cox, Imran Raza Zaidi, Trial Attorney, U.S. Department of Justice, Washington, DC, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before JOLLY, SMITH, and CLEMENT, Circuit Judges.

E. GRADY JOLLY, Circuit Judge.

Florencio Cuevas seeks review of the decision of the Board of Immigration Appeals (BIA) concluding that Cuevas was inadmissible because there was reason to believe he was a drug trafficker. Because the Department of Homeland Security (DHS) presented sufficient evidence to demonstrate that it had reason to believe Cuevas was an illegal trafficker, the petition for review is DISMISSED.

I.

Florencio Cuevas is a native and citizen of Mexico who was a legal permanent resident of the United States. While reentering the United States from Mexico in 2005, Cuevas's car was searched, and nearly 24 kilograms of cocaine were found concealed in the car's rear panel. Based on this finding, the Department of Homeland Security (DHS) charged Cuevas with removability under 8 U.S.C. § 1182(a)(2)(C) on the basis that there was reason to believe that Cuevas was a drug trafficker. Cuevas does not contest that the cocaine was found in his vehicle. Instead, Cuevas argues that there is not sufficient evidence to show that he was a drug trafficker because the DHS did not provide additional direct or circumstantial evidence that Cuevas knew the drugs were in his vehicle.

II.

Cuevas appeared in immigration court before an immigration judge (IJ). Cuevas's main contention was that he was unaware that the cocaine was in his vehicle. Cuevas testified that he bought the vehicle approximately two weeks before he left for Mexico from a man on the street in Chicago, paying $2,300 for it. Cuevas testified that, during the two weeks he spent in Mexico, he had exclusive control over the vehicle except for a period of between sixty and ninety minutes while his headlight was fixed at a mechanic's shop in Mexico. Cuevas testified that the shop was located in a town near where he grew up, but that he knew neither the name of the shop nor the name of the proprietor.

Based on this evidence, the IJ concluded that Cuevas was inadmissible, and therefore removable, under § 1182(a)(2)(C).

Page 974

Cuevas appealed the decision of the IJ to the BIA, and the BIA remanded the case, 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 concluded that the DHS had shown sufficiently that there was reason to believe Cuevas was engaged in illicit drug trafficking. The IJ relied on several items of evidence: Cuevas was driving his own car that he had purchased just prior to his trip to Mexico; Cuevas had maintained exclusive control over the vehicle with the exception of a single ninety minute period; Cuevas had mechanical work done on the vehicle two or three days before his arrest; there were fresh weld ...


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